As an obstetrician/gynecologist, lawyer, and bioethicist, when I read Supreme Court rulings on reproductive rights, I am struck by how little the Court understands the restrictive and burdensome nature of our medical system for women.
The latest decision on reproductive rights, June Medical Services LLC v Russo, does not bolster my confidence in the Court. The decision was narrowly won. While Chief Justice John Roberts’ concurrence gives deference to precedent, it and the dissent suggest that a slightly different statutory requirement — equally and unnecessarily restrictive of access to needed care — could, in the future, be upheld.
This is a problem given that the U.S. health care system is already rife with and primed for gender-based inequities.
Even on the best of days, health services for women are reimbursed at lower rates than equivalent services for men, insurance declines to cover treatment of vaginal estrogen (needed to ensure pliable vaginal tissue after menopause) while covering the erectile dysfunction drug Viagra for men, and urology funding for research of male diseases is more than double that of gynecology. This is to say nothing of the barriers to care women face in states with Targeted Regulation of Abortion Providers (TRAP) laws.
There is no other discipline in medicine in which our elected officials, most without medical training, insert themselves to such a degree into our counseling and care of patients.
Casey made clear that a state has an interest in enacting “regulations to further the health or safety of a woman seeking an abortion.” Yet, few, if any, TRAP laws can be said to increase safety.
Consider the TRAP regulation at issue in June Medical Services LLC v Russo, which hinged on admitting privileges. For the plaintiffs, abortion providers carefully detailed the impossibility of complying with the state of Louisiana’s statute to achieve admission privileges. Yet, these heroic efforts at documentation should not be necessary.
As described in the Opinion of the Court, abortion providers are either specifically barred from admission privileges or cannot achieve or keep them because their procedures are so safe, they rarely need to admit patients. This fact is well known to every practicing physician (and presumably to legislators seeking to limit access).
I have seen firsthand the struggle of women in areas of this country where abortion access is legislatively limited. As a resident in Texas, I was required to read a pamphlet entitled “A Woman’s Right to Know” to patients. I refused. While I was warned repeatedly that the state Attorney General might “come after me” and that I might lose my spot in residency, I welcomed a “test case” of a physician exercising her First Amendment rights. Similar to “admitting privileges” in June, the pamphlet and the information in it had little bearing on safe provision of medical care. If anything, misleading information in the pamphlet was harmful to patients.
In medicine, to learn if an intervention increases safety, we would conduct a research trial – but this is not required of legislators who disproportionally target abortion, the safest ambulatory procedure currently performed. Notably, this level of safety is achieved in states without TRAP laws, proving that those laws are not needed to increase safety margins.
Clearly, the goal is not safety. From a medical risk perspective, carrying a pregnancy to term will always be higher risk than going forward with an early abortion. Our maternal mortality rate, especially for women of color, is outrageously high and has been shown to increase in states where access to contraception and abortion is restricted.
I would argue the courts should start their analysis from the premise that if a woman desires an abortion, any impediment beyond the typical licensing and oversight of medical practice is prima facie an “undue burden” given these risks. I am using this term intentionally in a different way than it is used in Casey, to call attention to the fact the Court and legislatures have not assessed the true undue burden of any delay in accessing necessary abortion care. (I frequently have to clarify for physicians not familiar with law that “undue burden” only refers to barriers to access, and not all the other burdens women face and carry in our healthcare system in terms of morbidity and mortality.)
I would put the burden on the state to demonstrate through research — not simply conjecture — that any proposed statute will have a statistically significant increase in safety. To do otherwise gives excessive weight to the state’s interest in “protecting the potentiality of human life” (per Casey).
In my view, Roberts was right to criticize the Court in June for asking too much of itself in balancing interests – but he was focused on the wrong balance as the problem.
The way forward will not be easy. Educating our population is the key. Hopefully, as our demographics change and we increase voter participation, we can change the composition of state legislatures and thus curb passage of such ill-informed legislation. At the end of day, we need to trust women to make the right decisions for themselves and their families with assistance from their doctors.
Louise P. King is Director of Reproductive Bioethics at the Harvard Medical School Center for Bioethics and Assistant Professor of Obstetrics, Gynecology and Reproductive Biology at Harvard Medical School.