The doctor requirement: Griswold, privacy, and at-home reproductive care.
Author | Lindgren, Yvonne |
INTRODUCTION
Privacy law has traditionally offered greater protection to activities exercised within the home. This is true in common law as well as across a broad range of constitutional claims. For example, common law privacy protection identifies the home as a location of solitude and repose and is often conceptualized as the "right to be let alone." (1) Fourth Amendment protections against search and seizure and the notion of the reasonable expectation of privacy are enhanced when the defendant is within her or his home. (2) In contrast to other constitutional claims, however, I argue in this Article that reproductive self-care--care that takes place outside of the formal healthcare setting--receives less constitutional protection when exercised in the privacy of the home. (3) Most frequently, restrictions on reproductive self-care in the home take the form of what I have termed a "doctor requirement": laws that require reproductive care be performed in a formal healthcare setting, often requiring that a doctor be physically present. While the doctor requirement is imposed in a variety of reproductive self-care contexts--including self-insemination, (4) miscarriage management, (5) abortion, and home birth (6)--this Article will focus specifically on medication abortion. (7) It considers a previously unaddressed question: (8) Why is the home treated differently in cases of abortion-related self-care than in other constitutional moments and what does that difference reveal about this type of regulation? I conclude that laws imposing a doctor requirement are unconstitutional because medication abortion at home falls within privacy law's traditional protection of spatial, relational, and decisional privacy. (9) I conclude that the doctor requirement reveals that rather than a realm of privacy, the home has become a site of increasing regulation of pregnant people's reproductive autonomy in the guise of benign medical protectionism.
The anomalous treatment in law of reproductive self-care at home, when compared with the law's treatment of other types of constitutional and common law privacy claims, offers a rich opportunity to consider how claims of reproductive autonomy, safeguarding the health of pregnant persons, (10) and the privacy of the home coalesce in reproductive self-care to reveal underlying tensions in regulation in this area. I argue that medication abortion in the home falls squarely within the protections of privacy jurisprudence: First, in medication abortion the home functions in its traditional privacy role as a zone free from third-party intrusion and governmental surveillance for pregnant people accessing medication abortion. For example, medication abortion at home protects pregnant people in violent intimate relationships from surveillance and further violence from intimate partners that can be triggered by pregnancy: the home protects individuals from harassment and surveillance by anti-abortion protesters at clinics: and the home protects those with compromised immigration status from state surveillance at immigration checkpoints along the southern border of the United States when travelling long distances to access abortion-related healthcare at clinics. Second, the doctor requirement in medication abortion infringes on privacy as a right related to intimacy and autonomy of reproductive decision-making that the Court has recognized at the core of the Fourteenth Amendment. (11) Finally, medication abortion at home is encompassed by privacy's protection of intimate association as abortion at home allows pregnant people to end their own pregnancies in the privacy of their homes with the support of their chosen company, or alone, rather than in a clinical setting. I conclude that restrictions on reproductive self-care in the home are incongruous with privacy law*s traditional articulation in both common law and constitutional law.
Next, I consider more generally whether privacy is an adequate legal framework to identify the interests involved in restrictions on medication abortion at home. While medication abortion at home falls within privacy's framework of zonal, relational, and decisional privacy, (12) I draw upon critical and feminist legal scholarship to argue that the harms imposed on pregnant people ending their pregnancies at home are not adequately captured or conceptualized by privacy's conceptual framework of individuals exercising rights in the privacy of the home. The Court's privacy analysis that identifies the home as a critical zone of protection against state surveillance and intrusion fails to acknowledge the ways in which medication abortion at home implicates private violence, third party harassment and surveillance, and state-sponsored surveillance and regulation in the lives of pregnant people. What is more, the privacy analysis fails to consider the ways in which state policies that deny access to abortion-related healthcare create the conditions under which pregnant people turn to medication abortion in the home, due to clinic closures, immigration enforcement, intimate partner violence, and harassment at clinics, to name only a few. This is especially true for pregnant people who are living in poverty, (13) of color, (14) or with compromised immigration status (15) because pregnancies for these vulnerable groups are disproportionately subjected to surveillance. (16) In short, the doctor requirement reveals how a myriad of political, structural, and economic forces work in tandem to deny the right of privacy in its traditional sense to pregnant people exercising reproductive self-care in the home. Thus, while the doctor requirement falls within privacy's framework, it simultaneously reveals how insubstantial the privacy analysis is in articulating the interests at stake with respect to the right of dignity and autonomy of pregnant people seeking to exercise abortion-related self-care in the home.
It is a critical time to consider doctor-requirement restrictions on medication abortion as these laws are gaining momentum. In the last four years, nineteen states have passed laws requiring that the two-pill regimen for medication abortion be taken in the presence of a doctor, (17) despite guidelines by the Food and Drug Administration (FDA), (18) the American College of Obstetricians and Gynecologists (ACOG), and the World Health Organization (WHO), which do not require that either of the pills be ingested in a doctor's presence. (19) The doctor requirement restricts pregnant people's ability to engage in abortion-related self-care in the privacy of their homes and effectively prohibits the use of telemedicine for abortion care. (20)
This Article proceeds in three parts. Part I describes the two-pill medication abortion regimen and its uses both within and outside of the clinical context. This section details state law restrictions on at-home use of medication abortion and their impact on the widespread practice of using telemedicine to deliver abortion-related healthcare to people living in areas without access to clinics, especially rural areas. (21) It considers the claims that these restrictions are designed to protect women's health in light of the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey, (22) and its recent articulation in Whole Woman's Health v. Hellerstedt. (23) Part II argues that state restrictions on medication abortion are unconstitutional because medication abortion at home falls within the purview of privacy law's traditional protection of zonal, relational, and decisional privacy. It concludes that the privacy interest at stake in medication abortion at home involves matters of personal significance related to procreation, within the physical confines of the home, as well as the right to exercise control over one's body that go beyond mere location of the medical procedure in a healthcare setting. Part III critiques the limitations of the privacy analysis in the context of medication abortion at home and considers how larger systems and structures deny access to privacy for pregnant people seeking to exercise reproductive self-care in the home.
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THE HOME AND REPRODUCTIVE SELF-CARE
Medication abortion involves the use of medication rather than surgery to induce an abortion. (24) A pregnant person may end a pregnancy at home using medication abortion under two circumstances: within the clinical context facilitated by a doctor or outside of the clinical context by self-inducing abortion. This section details the ways that medication abortion is used to end pregnancy both inside and outside of the clinical setting. In each of these instances, some part of the medication abortion regimen occurs at home.
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MEDICATION ABORTION AND THE HOME
Medication abortion is commonplace in the United States through medical facilities. (25) In this clinical context, a pregnant person takes a two-drug protocol--mifepristone and misoprostol--approved by the FDA. (26) The FDA protocol requires that the first medication, mifepristone, be dispensed at a clinic, (27) but does not indicate where either of the two drugs must be ingested. Studies reveal that most pregnant people who end their pregnancies using abortion medication choose to do so at home. (28) Medication abortion using the two-drug regimen under a doctor's supervision is considered to be safe and effective, with a ninety-two to ninety-five percent success rate, comparable to that of surgical abortion. (29) As I will discuss in more detail below, (30) numerous studies have confirmed the safety and efficacy of the at-home administration not only of the second pill, but of the entire regimen of medication abortion through telemedicine. (31) These studies concluded that in-home administration was as safe, effective, and as acceptable to pregnant persons as clinic administration. (32)
Telemedicine (33)--virtual consultation with a physician by video--has been an...
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