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.
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. …