The constitutional right not to participate in abortions: Roe, Casey, and the Fourteenth Amendment rights of healthcare providers.

• Author: Rienzi, Mark L.

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. (13) In short, we know that under the Fourteenth Amendment the government cannot compel a woman to abort her own fetus--the question asked here is, can it force her to abort someone else's?

For much of our history, this question has been largely irrelevant. Until quite recently the right not to be forced to perform abortions has been protected by a variety of other mechanisms, including pre-Roe laws banning most abortions, (14) express state and federal statutory conscience protections enacted after Roe, (15) and a strong view of the Free Exercise Clause that subjected government burdens on individual religious exercise to strict scrutiny under Sherbert v. Verner, (16) and Wisconsin v. Yoder. (17) These overlapping factors largely ensured that the government could not compel an unwilling individual to participate in an abortion. There was little need to consider or explore whether the Fourteenth Amendment provided independent protection.

Recent developments, however, make the question of a Fourteenth Amendment right for healthcare providers more relevant. Legal developments have made it much more difficult for a religious plaintiff to assert a First Amendment Free Exercise claim. (18) Medical developments such as the availability of RU-486 (also called the "abortion pill") and emergency contraception (also called the "morning after pill," and marketed as "Plan B" and "ella") have expanded the pool of healthcare providers likely to be asked to participate personally in procedures they may consider to be abortions. (19) The Department of Health and Human Services has recently rescinded administrative regulations allowing for conscience-based objections by healthcare workers. (20) President Obama and members of Congress have promised passage of legislation known as the Freedom of Choice Act, which some argue would strip healthcare workers and institutions of even state statutory protections against compelled participation in abortions. (21) New legislation establishing greater government involvement in the healthcare system will likely present additional conflicts between government mandates and provider conscience.

These developments have coincided with actions by private employers, government regulators, and courts to require healthcare providers to participate in what they understand to be abortions. In Alaska, for example, private hospitals have been forced by state courts to allow their facilities to be used for abortions against their will. (22) The state of California sued the United States government in 2005, asserting that the state had the ability "to take disciplinary action against either health care entities or health care providers who refuse to provide abortion related services" in certain situations. (23) Since 2005, other states have used their power over pharmacy licenses to require distribution of drugs known as "emergency contraceptives," (24) despite the fact that such drugs are believed to work after fertilization and implantation, which some pharmacists understand to be an abortion. (25) Yet state regulators nevertheless have required them to dispense the drugs, on threat of license revocation. (26) Although medical organizations have historically favored protecting conscientious objectors, (27) in 2007 the American College of Obstetricians and Gynecologists (ACOG) issued an ethical directive requiring physicians to either provide or refer for abortions, and that if a referral "might negatively have an impact on a patient's physical or mental health, providers have an obligation to provide" abortions "regardless of the provider's personal moral objections." (28) Employees in private hospitals have reported being forced by their employers to participate in abortions against their will, on threats of termination and initiation of proceedings against their licenses. (29)

In light of these developments, and in light of the government's expanding role in the healthcare system, the time is ripe for examination of healthcare providers' Fourteenth Amendment rights to refuse to participate in abortions. That examination, presented in the pages that follow, shows that the Fourteenth Amendment does indeed protect this right.

Part I sets forth the historical test used by the Supreme Court to determine which rights merit substantive protection under the Fourteenth Amendment. Generally speaking, the Court's cases show that the Fourteenth Amendment protects "fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and traditions,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" (30) Part I also explains that the Court gives special emphasis to recent history, is careful to protect citizens from psychological harms that might flow from denial of rights, and views the ability to form one's own beliefs about certain issues as itself protected by the Fourteenth Amendment.

With this test in mind, Part II provides a historical overview of a healthcare provider's ability to choose not to participate in abortions. This historical review shows that healthcare providers have generally been free to refuse to participate in abortions. The reasons for this long tradition have varied over time and include that, at various times, abortion was illegal, was expressly prohibited by established principles of medical ethics, and/or was the subject of express statutory conscience protections. (31)

Part III then analyzes whether this history shows that the right of healthcare providers to refuse to participate in abortions is, in fact, sufficiently rooted in the nation's history and traditions to fall within the Fourteenth Amendment's substantive protections. In light of the long history of legal and ethical prohibitions on abortion in many contexts until the 1970s, and the repeated, nearly unanimous, and nearly universal legislative actions to protect objectors after Roe, this Part concludes...