Roe v. Wade

The concept of "medical necessity," or "therapeutic abortion," defines nonmedical abortions as "elective," meaning they are somehow frivolous, unnecessary.5 This bifurcated view distorts reality; it denies that familial, economic, and sexual conditions, as well as those of physical health, create genuine needs that justify abortion. It also reduces the meaning of health, ignoring the extent to which medical problems are related to social, eco­nomic, and family-sexual conditions, a point made by Judge Dooling in McRae when he argued that "poverty is itself, persistently, a medically relevant factor."6

Above all, "medical necessity" makes the physician the final arbiter of the abortion decision. Within this framework, it contains the old eu­genic idea of childbearing as a "scientific" undertaking for which only certain women are "fit." Thus it can allow abortions in some cases because women are seen as too poor, too young, or too mentally or physically incompetent to bear children. Abortion and contraception become not a right of women to self-determination but a duty (to the nation, the "race," the family, or even the self). In this way, therapeutic-eugenic discourse about fertility control, including abortion, allows the liberal state to ac­commodate without legitimating feminist demands. Roe v. Wade granted women the "right" to choose abortion in a spirit that was imbued with the "medical necessity" concept. Indeed, how the court defined the "pri­vate choice" of abortion hinged very much on the role of medical authority.

The most important legal doctrine invoked to support women’s "right to choose" abortion is that of a "right of privacy." Though not granted explicitly in the Constitution, the right of privacy has been found by the courts to reside inherently in various amendments and the "penumbras of the Bill of Rights," particularly with regard to activities related to sexuality and reproduction (marriage, contraception, procreation, homo­sexuality, childrearing).7 It was given its most far-reaching expression in Justice Brennan’s opinion in Eisenstadt v. Baird (1972), which involved a ban on the sale of nonhazardous contraceptives to unmarried persons:

If the right of privacy means anything, it is the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.8

This was not a majority opinion, and so it carried no precedential weight. Moreover, the qualifying term "unwarranted" implied that there might be situations in which "governmental intrusion" into the privacy of repro­ductive decisions would be justified. In 1973, what the Supreme Court was doing was not so much securing the privacy of a woman’s right to choose abortion as defining the scope and limits of the state’s authority to intervene.

Roe v. Wade and Doe v. Bolton were very clear in stating that the "privacy right" involved in abortion decisions was not "absolute." In its most positive formulation, the Court held that "this right of pri­vacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy" and went on to enumerate—in terms it would lay aside in 1980—the serious health consequences that may result for women if this right is denied, including "a distressful life and future," "psychological harm," and harm to "mental and physical health."9 Never­theless, it also concluded that the constitutional right of privacy does not entail "an unlimited right to do with one’s body as one pleases," or "abortion on demand"; the abortion decision may be limited by certain "important state interests in regulation."10 These interests include that of "preserving and protecting the health of the pregnant woman," on the one hand, and "protecting the potentiality of human life," on the other. According to the Court’s complicated formula—in actuality, the heart of Roe v. Wade—these two state interests are "separate and distinct," each becoming "compelling" at a different stage of pregnancy. Thus the Court implied that during the first trimester, state regulation of abortion was unconstitutional; during the second trimester, the state might inter­vene for reasons of "protecting the woman’s health"; and in the final trimester, which the Court associated with fetal "viability," the state’s "interest in potential life" could justify a prohibition of abortion "except when it is necessary to preserve the life or health of the mother."11

May we nonetheless presume that women were being granted an unqualified "right to choose" abortion in the first stage of pregnancy? Here is how the Supreme Court clarified it in Roe:

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.12

Thus the Court "was not upholding a woman’s right to determine whether to bear a child, as abortion proponents and feminists had argued. Instead, it was upholding a doctor’s right to make a medical decision!"13 This was even clearer in Doe v. Bolton. There the Court’s opinion seemed to reject the "medical model" by invalidating statutory requirements that abortions be performed only in accredited hospitals with the approval of the hospital abortion committee and two outside physicians. Although the Court was paring away some of the more cumbersome medical restric­tions on abortion maintained by AMA policy and past medical practice, it did so explicitly on behalf of "licensed physicians." Nurses, counselors, paramedicals, and other potential providers were denied standing to sue in the case, since they "are in no position to render medical advice."14 The bureaucratic restrictions were struck down by the Court because they were held to infringe on "the woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to adminis­ter it"—"the physician’s right to practice. "15

Roe v. Wade and Doe v. Bolton therefore simply confirmed the model of abortion decisions being made within a private, confidential doctor – patient relationship—a model that already prevailed in clinical practice for white middle-class women. But the Court was not saying anything aboqt a woman’s right to have this kind of medical care. If anything, it was upholding the traditional professional autonomy of private practicing physicians over determinations of when (and for whom) medical care is warranted. It was explicitly fitting abortion within the market-oriented medical paradigm. Moreover, it was reserving the legitimacy of state inter­ference with this professional autonomy in the interests of "protecting women’s health" or "preserving potential life." With regard to this last point, while the Court in Roe v. Wade is widely read as dismissing the notion of "fetal personhood" or "fetal rights" as constitutionally relevant (which essentially it does), still another carefully veiled hedge foreshadows Harris v. McRae. Acknowledging that abortion is covered by the constitu­tionally protected right of privacy, the Court nevertheless suggests in an ominous aside that abortion may not be a right to the same degree as other rights:

The pregnant woman cannot be isolated in her privacy. She carries an embryo, and, later, a fetus. . . . The situation is thus inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education. . . ,16

Why, then, was the 1973 abortion decision so widely interpreted as a victory for women’s right of privacy and the language about "medical judgment" and "inherent difference" from other privacy rights over­looked? Again, we have to look at the political and social context in which the decision was rendered. The strength of the women’s liberation movement and the broad approval in the society for liberal feminist ideas about equality and self-determination meant that Roe would be interpreted by the lower courts and policy makers, as well as by the general public, as giving women a "fundamental right" to abortion. I would also argue that, despite its limitations, Roe v. Wade genuinely reflected this liberal climate. It established the legality and legitimacy of abortion, and it did so within a normative framework that emphasized women’s health, very broadly defined, rather than abstract moralism or "fetal rights." In this sense, it was progressive, and its immediate impact was to expand women’s access to abortion significantly.17

In fact, the concept of "medical necessity" or "protecting women’s health" cuts in different ways. It may be interpreted as, simply, whatever doctors decide is necessary; this outcome is reinforced by the absence, in a private, profit-oriented medical system, of any socialized, uniform processes for determining standards of need. But it may also refer to the standards themselves, their material content, as Judge Dooling did when he enumerated with great sympathy and detail the array of physical and psychological difficulties that unwanted pregnancy may provoke. These two criteria, medical authority and health needs, may come into conflict (e. g., in the passage of "conscience clause" statutes that allow doctors to refuse to perform abortions on grounds unrelated to women’s health). Understood expansively, however, "health reasons" for abortion may pro­vide the broadest practical basis for abortion services within the health-care system as it is currently structured. This is why the medical emphasis in Roe v. Wade may have been, at a particular moment, relatively progressive for women. In the broad language of the Court, the injuries to health that women suffer from being denied access to abortion may even include "a distressful life and future," and at no time during a pregnancy is the state justified in withholding legal abortion if such injuries to health would result.18

While feminist thinking sees the medical necessity criterion as restric­tive of women’s rights in principle, increasingly since Roe v. Wade the opposite is true in practice. It has been a hard fight to get abortion recog­nized as a legitimate health concern at all. Within the health-care system, only conditions defined as "disease" usually receive insurance coverage, even though many nonpathological conditions (i. e., much of reproductive health and all preventive services) require the same costly medical facilities and personnel. If abortion was clearly understood as health related, it would be much more difficult politically to exclude it from Medicaid coverage. (The Supreme Court was able to rationalize denial of Medicaid funding for abortion in 1980 only by choosing to ignore its own strong language about health consequences in 1973.)

The pressure that the health-care system exerts to define abortion in medical terms was spelled out in a memorandum by the late Frederick S. Jaffe, director of Planned Parenthood’s Center for Family Planning Program Development, shortly after Roe v. Wade.19 He argued for the "need to develop rapidly a viable concept of ‘medical necessity’ or ‘medical indications’ for fertility control (and particularly abortion)—and that we have to find a way to have such a concept adopted by the medical profes­sion and the insurance industry." The alternative was that abortion would "be shut out of U. S. health financing mechanisms." Jaffe was aware of the problems in urging "medical indications" as the basis for abortion services for institutional and funding purposes. He acknowledged that it was "repugnant" to the idea of women’s "constitutional right to avoid involuntary pregnancy. . . for her own reasons, without the need for any external justifications." But to define most abortions as "elective" (i. e., a question of individual choice) is ipso facto to disqualify them "from public or private financing," thus to "win the battle and lose the war."20 The contradiction between abstract, formal "right" and practical access to services is structured into the existing health-care system.

In 1976, Congress began the interminable Hyde Amendment debates that marked the escalation of the "right-to-life" movement’s antiabortion crusade to the national level. Low-income women watched grimly as what they thought was their court-approved constitutional right to choose abor­tion was systematically whittled down by a legislative body composed almost entirely of men: first to "medically necessary" abortions; then to those indicated by a risk of "severe and long-lasting physical health dam­age/’ as certified by two physicians, or to those precipitated by (duly reported) rape or incest; and finally, to those necessitated by actual danger to the woman’s life. These restrictions were subsequently adopted by all but 14 states and the District of Columbia, which provided 92 percent of the public funds used to finance abortions for poor women in 1981.22 At the federal level, funds are restricted not only to Medicaid-dependent women but to military dependents, Peace Corps volunteers, and working women dependent on employment-related pregnancy disability benefits.23

From the beginning of this massive legislative assault on abortion funding, the posture of liberals in Congress and the courts was to retreat into a defense of "medical necessity." A review of early legislative debates on the Hyde Amendment suggests that feminists’ apprehensions about the limits of this framework as a way of thinking about abortion, even in a period of repression, are well founded. Throughout the debates, liberal senators who were most outspoken against the "right-to-life" proposals and in favor of retaining Medicaid funding based their arguments on a strict notion of medical autonomy. Senator Brooke, who introduced an amendment that would have attached the phrase "where medically neces­sary" to the provisions, clarified the concept thus: "The only alternative was to allow the doctors to make the decisions that only they were quali­fied to make, and that [the principle of medical necessity] would leave the medical decisions where they so clearly belonged. . . [he] made clear that the doctor would have to make a medical determination, however, and not take the word of the pregnant woman."24 Brooke’s position, considered the most liberal in Congress at the time, is immediately recog­nizable as the official AMA policy since 1967 on abortion. Similarly, other liberal senators, such as Javits, Bayh, and Kennedy, declared their support for federal funding for abortions where doctors determine there are "sound medical reasons" (Javits) or "in cases of genuine medical necessity" (Ken­nedy), but decidedly not for "abortion on demand" or "as a method of family planning or for emotional or social convenience."25 Even opponents of the Hyde Amendment in the Senate were infected by the rapidly mounting antifeminist backlash, the view that abortion rates were a reflec­tion of women’s "selfishness."

On the other hand, "right-to-lifers" in Congress were resolutely op­posed to any reference to "medical necessity" or even medical approval as part of the Hyde Amendment exceptions, arguing that this would open the door to "abortion on demand." By 1979, they had succeeded in eliminating all medical criteria from the amendment, reducing Med­icaid-funded abortions to those where a woman’s life is threatened and thereby virtually wiping out publicly financed abortions for most poor women. In this new political context the defense of "health reasons" for abortion seemed not only vital but relatively progressive.