The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers

By Rienzi, Mark L. | Notre Dame Law Review, November 2011 | Go to article overview

The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers


Rienzi, Mark L., Notre Dame Law Review


The Fourteenth Amendment rights of various parties in the abortion context--the pregnant woman, the fetus, the fetus's father, the state--have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman's Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor's right to decide whether to participate in abortion procedures?

The Court's substantive due process analysis typically looks for rights that are "deeply rooted" in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right not to participate in abortions. This historical analysis shows that this right to refuse passes the Court's stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court's stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider's right to make this decision also fits squarely within the zone of individual decision making protected by the Court's opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right not to participate in abortions.

INTRODUCTION

Dr. Lisa Harris had performed abortions for years. But while performing one particular abortion, she experienced what she called a "brutally visceral" emotional response. At the time, Dr. Harris was pregnant, and she had felt her own baby kick while she was performing the abortion. She described the experience as "one of the more raw moments" of her life. (1)

From that point on, Dr. Harris found that performing abortions "did not get easier," and that she grew to find the process "sadder." (2) Still, Dr. Harris chose to continue providing abortions. Indeed she wrote about her experience to draw attention to the psychological impact of providing abortions. (3) Dr. Harris hopes that an open discussion of the psychological burdens of providing abortions will strengthen the pro-choice movement and help make abortions more widely available. (4)

Different doctors, of course, have different approaches to the question of whether or not to perform abortions. Some choose not to perform them at all. Others perform abortions for their entire careers, enduring protests, threats, and physical violence to provide a service they deem critically important. (5) Still others perform abortions for a time and later decide they wish to stop, (6) or decide midcareer to begin providing abortions. (7) In short, physicians--like the rest of us-have come to a variety of opinions about abortion. Those opinions quite naturally influence whether they are willing to participate in abortions or not.

What does the Constitution say about this state of affairs? Suppose after the abortion described above, Dr. Harris had experienced a change of heart and decided she no longer wished to provide abortions. Does she have the constitutional right to make that decision on her own? Or could the government force her to continue to provide abortions against her will, perhaps as a condition of being a licensed obstetrician?

Courts and commentators have repeatedly examined the Fourteenth Amendment rights of various parties in the abortion context, including the pregnant woman, (8) the fetus, (9) the states, (10) and the father. (11) These decisions often presume and rely upon the presence of a willing doctor to perform the abortion. (12) To date, though, no scholars have explored in any depth whether the healthcare provider has Fourteenth Amendment rights to decide for herself whether to participate in abortions. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.