The Rhetoric of Choice: Restoring Healthcare to the Abortion Right
Volume 64, Issue 2, 385-423
In 1973 the Supreme Court in Roe v. Wade both identified a constitutional right of abortion and asserted that “the abortion decision in all its aspects is inherently, and primarily, a medical decision” to be made in consultation with a “responsible physician.” Since that time, the Court’s analysis has shifted away from the medical model, to identify abortion exclusively as a right of decisional autonomy. While scholarship has uniformly criticized the Roe analysis for subordinating women’s constitutional rights to the judgment of their doctors, it has left unanswered an important question: What, if anything, was lost when the Court turned from the medical model of reform toward identifying abortion as a right of decisional autonomy?In this Article I argue that a previously unrecognized benefit of the Roe Court’s analysis was that it viewed abortion as a right that was inextricably linked to healthcare. Thus, while early cases compromised a woman’s right of choice, I argue that at the same time these cases better protected effective access to abortion via healthcare. By contrast, I demonstrate that the Court’s current analysis narrowly identifies abortion exclusively as a right of choice, uncoupled from access to healthcare. This analysis increasingly isolates pregnant women as rights holders and no longer acknowledges them as medical consumers. While nominally protecting the abortion right, it has severed the access necessary to exercise the right. As a result, the right of abortion is in danger of becoming a right without a remedy. I conclude that it is critical to reclaim healthcare as an integral aspect of the abortion right while rejecting the early analysis that deferred women’s decisionmaking to doctors. This reclaimed healthcare analysis will allow the right to better withstand challenges of legislation that seeks to restrict access to abortion-related healthcare and will create broader appeal for the right by casting it in a gender-neutral context.