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Historically, doctors have played a big role in abortion’s legality. Back in the 1860s, physicians with the newly-formed American Medical Association worked to outlaw abortion in the U.S.
A century later, they were doing the opposite.
In the 1950s and 1960s, when states were liberalizing abortion laws, “the charge for that actually came from doctors who said, ‘This is insane, we can’t practice medicine, we can’t exercise our medical judgment if you’re telling us that this is off the table,’ ” explains Melissa Murray, law professor at New York University.
The Supreme Court ruled in doctors’ favor in Roe v. Wade in 1973. The majority opinion spoke of “the right of a woman in consultation with her physician to choose an abortion,” Murray says.
Yet doctors and patients are all but absent from the latest Supreme Court majority opinion on abortion in Dobbs v. Jackson Women’s Health Organization. In fact, in the opinion, Justice Samuel Alito uses the derogatory term “abortionist” instead of physician or doctor or obstetrician-gynecologist.
Legal experts say that signals a major shift in how the court views abortion, and creates a perilous new legal reality for physicians. In states where abortion is restricted, health care providers may be in the position of counseling patients who want an abortion, including those facing pregnancy complications, in a legal context that treats them as potential criminals.
“Alito’s framing is that abortion is and was a crime – that’s the language he uses,” says Mary Ziegler, a law professor at the University of California, Davis. There’s no dispute, she says, that “the result of a decision overruling Roe in the short term is going to be the criminalization of doctors.”
Roe v. Wade was doctor-centered
Doctors were at the heart of the court’s first landmark ruling on abortion, Roe v. Wade.
“The original Roe decision – it was very, very doctor-centered – extremely so,” says Ziegler, who has written extensively on the legal history of abortion. “At its inception, this was a right that was very much about health care and about the doctor-patient relationship.”
Roe and the abortion decisions that came after it like Planned Parenthood v. Casey, “had the framework that abortion is some sort of individual right, but it’s also health care,” explains Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
The court essentially told states: “You can put restrictions on abortion services and on provider qualifications as you do for other types of health care, and as long as they are not so onerous that we