It’s election time in Virginia (every year is an election year in Virginia) and the topic of abortion is near the top of issues that the candidates are talking about. I want to talk about this topic briefly in a context that I think is missed in most of the public debate.
Abortion is part of a continuum of healthcare services available to pregnant women. Every OB/GYN practice that I know of offers continuous care to women – from teens navigating their early years of sexual maturity, through women of child-bearing age, to post-menopausal women. These services include regular conversations about both the physical and psychological dimensions of women’s health (reproductive and otherwise). When a woman gets pregnant (whatever the circumstances), an assessment of the pregnancy is done in the context of her overall health and life circumstances. Recommendations for self-care (and medical interventions if necessary) are part of this assessment.
When a pregnancy is identified as “high risk,” these assessments become more complicated. The woman is the doctor’s patient, and she deserves her doctor’s full attention during the pregnancy. Doctors observe the Hippocratic Oath (first, to do no harm) and applicable laws and regulations.
Although opponents of abortion (I don’t call them “pro-life”) make it sound as if abortions are sought willy-nilly by women who don’t want to be inconvenienced by a pregnancy, the vast majority of abortions (especially those in the second or third trimester) are undertaken because the pregnant woman and the doctor who knows her best concur that either the fetus or the mother (or both) will suffer severe harm or die if the pregnancy is carried to term.
I remind you – this is part of the continuum of women’s health care. During a high-risk pregnancy, the entire medical team attending to the pregnant woman works to maintain the viability of the pregnancy while ensuring the well-being of the woman. This can involve a variety of ways to mitigate the dangers inherent in continuing a difficult pregnancy – including possible termination of the pregnancy if the circumstances warrant it. It’s a balancing act, and no “one-size-fits-all” solution will provide the necessary answers in all cases.
These decisions are never made in isolation. No woman who is, say, in her fifth month wakes up one morning and decides, “Well, I’m tired of this. I’m going to get an abortion today.” Rather, it’s highly likely that she has felt the baby move around inside her. She has already bought a crib, selected a name, and begun to furnish her nursery. She has started the process of arranging for child care (if that’s part of her plan) and figuring out her own career path (if that’s part of her plan). Her family members are eagerly awaiting the arrival of the baby, and she has begun to picture what life is going to look like after the baby comes.
All of what I’m saying in this essay relates primarily to a woman who has reliable access to prenatal health care – which is sadly lacking for major parts of the population. But that’s another problem, one that I’m not addressing today.
I’ve never experienced a high-risk pregnancy, and I never had to make the kinds of decisions faced by the pregnant woman and her doctor if the course of a pregnancy takes a disastrous turn. But I can read and I have empathy – and I’ve learned about the heartbreaking decisions people face when a pregnancy is non-viable. I can imagine the agony of a woman and her family as they face the high likelihood that their plans will not come to fruition – that the anticipated “blessed event” will in fact not happen. The progress of the pregnancy to this point has been monitored by her doctor, and the pain of making a decision to terminate the pregnancy is felt by both the patient and her doctor
Proposed (and existing) drastic restrictions on abortion access interject new actors into this medical decision-making process. Suddenly, what should be a very private decision among the interested parties (the woman and her doctor, and the partner or spouse if he is involved in the entire pregnancy and not just its onset) becomes a public decision, where both the patient and her doctor face potential legal ramifications from their joint decision. The doctor, who has likely known the patient for years and is invested in the success of the pregnancy, can no longer just worry about her patient but rather has to be concerned about her livelihood or potential imprisonment for a decision to act in the best interests of her patient. All of a sudden, the doctor is forced to violate the medical privacy of the pregnant woman in order to be able to provide the necessary care. No OB/GYN relishes carrying out an abortion; these doctors are about life, not death. But all doctors know that there are times when hard decisions are necessary, and they should be able to make these decisions in the best interests of their patients – the pregnant women propped up in stirrups before them. I repeat – the doctors care deeply about the fetus, but the woman is their patient.
Anti-choice activism is most often cast in religious language – claiming that the fetus is a person in the eyes of God or that the unborn child is “known to God” and thus worthy of equal consideration as its host when medical decisions are made.
See yesterday’s post about the mingling of religion and politics for more about this issue.
I would like to see the abortion issue couched in different terms –as a medical privacy issue. The rhetoric would change, I think. I don’t think anti-choice advocates would wave around signs about the need to violate medical privacy. We all care about medical privacy, so couching the issue in these terms would wake people up to what is really at stake here – laws that make private medical affairs public knowledge. Slippery slopes and all that.
This is not a new idea. The notional right to privacy was the basis for Justice Harry Blackmun’s 1973 opinion in Roe v. Wade. In that opinion, he said that a fundamental element of the Constitution was the right to be left alone, without government interference. (This is, by the way, a deeply conservative point of view). It is true that the Constitution does not contain an explicit right to privacy, but it is also true that the 9th Amendment (the one that no one talks about) says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” One of the objections to the inclusion of a Bill of Rights in the original Constitution was a concern that enumerated rights would be seen as an exclusive list. The people who wrote the Constitution were apparently less certain about their wisdom than current textualists and originalists, who claim that the document means no more or less than what they think it meant in 1787. The 9th Amendment casts doubt on their omniscience, stating, basically, “We may have left some things out of this, but that doesn’t mean we wouldn’t have included them if we had thought about them.”
Beginning with a case almost a decade earlier – Griswold v. Connecticut – the Court began exploring what Justice William O. Douglas called a “penumbra of privacy” created by specific guarantees of several amendments, including the First, Third, Fourth, and Ninth. This case challenged the state of Connecticut’s century-old law that criminalized the use of contraception. In his 1973 opinion in Roe v. Wade, Justice Blackmun expanded on this “penumbral” argument about a right to privacy.
In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA), which codified a right to medical privacy. This law generally prohibits healthcare providers and healthcare businesses from disclosing protected information to anyone other than a patient and the patient's authorized representatives without their consent. It is easy to understand why this is important. Good patient care requires honest reporting by patients, who need to be confident that their doctors are not going to report them to their employers, family members, or law enforcement based on information they gave their doctors. Absent such assurances, patients are likely to keep important and medically essential information from their doctors, resulting in a lower standard of care.
This also provides the rationale for attorney-client privilege, by the way.
The internet age has highlighted the importance of personal privacy. Identity theft and financial fraud can result from wholesale violations of privacy if companies collect and then share personal information. Justifying a deep invasion of the right to privacy in the case of abortion weakens the case for protecting privacy in other areas. We go there at our peril.
Right on! Excellent. So true. 👍🏻