The “Gag Rule” Revisited: Physicians as Abortion Gatekeepers

Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992).

Id. at 2878 ( Scalia J. , dissenting).

During a one-term Clinton presidency, the replacement of 83-year-old Justice Blackmun by a reliable Roe supporter may reasonably be anticipated. Prospects for the departure of one or more Roe opponents are much more speculative, as is the election of a Democratic (or pro-choice Republican) president in 1996.

Rust v. Sullivan, 111 S. Ct. 1759 (1991).

Id. at 1769.

American College of Obstetricians and Gynecologists, “12 National Medical and Nursing Organizations Call for Overturn of ‘Gag Rule,’” News Release, June 13, 1991.

Prior to President Clinton's repeal of these regulations, the campaign for Congressional repeal came closest to its goal in November 1991, when the House and Senate passed legislation that would have barred their enforcement. Pianin E. , “House Votes to Shield Abortion Counseling but Fails to Muster a Veto-proof Majority,” Washington Post , November 7, 1991, sec. A16. President Bush vetoed this legislation, and its supporters fell 12 votes short of the 288 needed in the House of Representatives for an override. Pianin E. , “House Affirms Ban on Abortion Advice,” Washington Post, November 20, 1991, sec. A1.

Scalettar R. , Statement of the American Medical Association to the Subcommittee on the Constitution, Judiciary Committee, U.S. Senate, re: The impact of Rust v. Sullivan on medical communications (July 30, 1991).

Statement by Schwarz Richard H. , President of the American College of Obstetricians and Gynecologists (June 13, 1991).

Feldmann L. , “U.S. Abortion Clinics Await Policy Signal by Congress,” Christian Science Monitor, June 18, 1991, at 7.

I employ the term “pro-life” not because I believe it is the best characterization of the anti-abortion position, but rather because respecting abortion opponents' self-labeling preference may contribute in a small way to reducing the bitterness that infects public discourse about abortion.

In stating this conclusion, I do not mean to suggest that repeal of the regulations sustained in Rust served no purpose. Even accompanied by a therapeutic exception, they chilled conversation between patients and health professionals to a degree that made their repeal desirable, from the perspectives of both patients and providers. Sugarman J. Powers M. , “How the Doctor Got Gagged: The Disintegrating Right of Privacy in the Physician-Patient Relationship,” JAMA, 266 (1991): 3323–3327.

Petitioners' Brief for a Writ of Certiorari to the United States Court of Appeals, Second Circuit, Rust v. Sullivan, 889 F.2d. 401 (1989), aff'd 111 S.Ct. 1759 (1991).

Marcus R. , “Abortion-Advice Ban Upheld for Federally Funded Clinics,” Washington Post, May 24, 1991, sec. A1.

42 C.F.R. § 59.8(a)(1)(1989).

42 U.S.C.A. § 300a-6 (West 1991).

Jones H.W. , Nowak's Textbook of Gynecology (Baltimore: Williams and Wilkins, 11th ed., 1988): 236.

Rustv. Sullivan, 111 S. Ct. 1759, 1773 (1991).

42 C.F.R. § 59.8(a)(2) (1989).

111 S. Ct. at 1773.

42 C.F.R. § 59.5(b)(1) (1991).

Valley Family Planning v. North Dakota, 661 F.2d 99, 101 (8th Cir. 1981).

661 F.2d at 101, n.2 (quoting a 1979 HHS interpretive opinion).

661 F.2d at 101.

52 Fed. Reg. 33210 (1987).

53 Fed. Reg. 2922, 2926 (1988).

Lewin T. , “Hurdles Incease for Many Women Seeking Abortions,” New York Times, March 15, 1992, sec. 1:1.

Roe v. Wade, 410 U.S. 113 (1973).

Id. at 163. The U.S. Supreme Court's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey sets the stage for medical gatekeeping in another abortion-related context—state laws imposing obstacles to abortion access that survive the “undue burden” test. In upholding Pennsylvania's 24-hour waiting period and parental consent provisions, the Court said that the Pennsylvania law's medical exemption from these requirements is “central” to their constitutional validity. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791, 2822 (1992). “[T]he essential holding of Roe,” the Court reasoned, “forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.” Id. at 2822. Despite the Pennsylvania statute's use of the term “medical emergency” to narrowly frame its medical exemption, the Court insisted on a broad view of the exception. Quoting from the Third Circuit's opinion, the Court stated: “We read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.” Id. at 2822. This construction was essential, according to the Court, to bring the exemption into line with Roe's proscription against interference with abortion choice where continued pregnancy threatens a woman's health. In so construing the exemption, the Court rejected Planned Parenthood's attempt to do what it had tried without success in Rust—to cast a medical necessity exception in sufficiently narrow terms to foreclose the constitutionality of a barrier to abortion access.

Roe v. Wade, 410 U.S., at 163.

Pfeiffer E. , “Psychiatric Indications or Psychiatric Justification of Therapeutic Abortion?” Arch. Gen. Psychiat., 23 (1970):402–407.

Model penal code § 230.3(2) (1962).

United States v. Vuitch, 402 U.S. 62 (1971).

The Court's opinion last term in Planned Parenthood v. Casey ironically echoed this sweeping view of health in addressing Pennsylvania's requirement that women opting for abortion be given information about their “unborn child.” The opinion justified this requirement by (1) discerning a government interest in apprising women of abortion's “health risks,” (2) declaring that “psychological well-being is a facet of health,” and (3) warning that failure to instruct women about abortion's “impact on the fetus” contributes to “the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” 112 S. Ct. at 2823.

Levene H.I. Rigney F.J. , “Law, Preventive Psychiatry, and Therapeutic Abortion.” J. Nerv. and Mental Dis., 1970; 151:51–59.

Sloane R.B. , “The Unwanted Pregnancy,” New Eng. J. Med., 280 (1969):1206–1213; Senay E.C. , “Therapeutic Abortion: Clinical Aspects,” Arch. Gen. Psychiat., 23 (1970): 408–15.

Whittington H.G. , “Evaluation of Therapeutic Abortion as an Element of Preventive Psychiatry,” Am. J. Psychiat., 126 (1970): 58–63.

Cunningham F.G. , Williams Obstetrics (Norwalk, Conn: Appleton and Lange, 18th ed., 1989): 501.

Walzer M. , Spheres of Justice (New York: Basic Books, 1983):86–91.

Tribe L. , Abortion: The Clash of Absolutes (New York: W.W. Norton, 1990):60.

Id. at 63.

Without acting disingenuously, physicians could accomplish this by taking a broad view of health and a liberal view of the “necessity” of clinical interventions aimed at achieving health. Only if medical necessity is misapprehended as a fixed, timeless measure, unresponsive to evolving social perceptions of need, must such behavior be judged disingenuous and therefore ethically dubious.

111 S. Ct. at 1776.

Luker K. , Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984):62–65., 78–83.

Harris v. McRae, 448 U.S. 297 (1980).

Marder L. , “Psychiatric Experience with a Liberalized Therapeutic Abortion Law,” Am. J. Psychiat., 126 (1970: 1230–1236).

402 U.S. at 72.

Heller A. Whittington H.G. , “The Colorado Story: Denver General Hospital Experience with the Change in the Law on Therapeutic Abortion,” Am. J. Psychiat., 125 (1968):809–816.

Whittington , supra note 47, at 1224–1229.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Washington, D.C.: American Psychiatric Press, 3rd ed., 1980).

Foucault M. , Madness And Civilization (New York: Random House, Inc., 1965).

Callahan D. , What Kind of Life: The Limits of Medical Progress (New York: Simon and Schuster, 1990):34–40.

Nightingale E.O. Stover E. , “A Question of Conscience: Physicians in Defense of Human Rights,” JAMA, 255 (1986): 2794–2797.

Day B. Waitzkin H. , “The Medical Profession and Nuclear War: A Social History,” JAMA, 254, (1985):644–651.

Peck A. , “Therapeutic Abortion: Patients, Doctors, and Society,” Am. J. Psychiat., 125 (1968):797–804.

ACOG poll, “Ob-gyns' Support for Abortion Unchanged Since 1971,” Family Planning Perspectives, 17(6) (Nov/Dec 1985):275.

Veatch R. , The Physician-Patient Relation (Bloomington, Indiana: Indiana University Press, 1991): 54–62.

Tribe , supra note 50, at 75.

Bowen v. American Hospital Association, 476 U.S. 610 (1986); U.S. Commission on Civil Rights, Medical Discrimination Against Children with Disabilities (Washington: U.S. Government Printing Office, 1989).

Stone A. , Law, Psychiatry, and Morality (Washington, D.C.: American Psychiatric Press, 1984):242–244.

Whittington , supra note 47, at 1224–1229.

Halleck S. , The Politics of Therapy (New York: Science House, 1971):144–146. Such invention need not be consciously disingenuous. Clinicians commonly form beliefs, influenced by their prejudices and ambitions, in the face of empirical uncertainty. Katz Jay , The Silent World of Doctor and Patient (New York:First Press, 1986). Indeed, the omnipresence of empirically unsettled questions in medical practice would make clinical decision-making impossible without such beliefs.

Whittington , supra note 47, at 1224–1229.

Halleck , supra note 71, at 146.

Id. at 140–147.

Sunstein C. , “Legal Interference with Private Preferences,” Univ. Chi. L. Rev., 53 (1986):1129–1174.

Michael Seidman suggests that much of American constitutional law can be understood as a means for preserving a barrier between our contradictory private and public lives:

Any theory about what constitutes the good life must recognize that people are both private and public-regarding. We are all … entitled to equality of concern and respect, but we also need lovers, families, and friends for whom we care specially. Any effort to resolve this contradiction is fundamentally misguided.

Seidman M. , “Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law,” Yale L.J., 96 (1987):1006–1059. Law, this model holds, mediates between enclaves of private choice and contrary assertions of public morality. It explicitly protects some spheres of personal preference from state intervention, and it develops mechanisms to shield other realms of private choice from public visibility. Although Seidman focuses on constitutional interpretation, the model can be applied to law more broadly.

Calabresi G. Bobbitt P. , Tragic Choices (New York: W.W. Norton, 1978).

Hilts P. , “White House Eases Stand on Abortion Counseling,” Houston Chronicle, March it, 1992, Sec. A:1 (byline New York Times).

Allen A. , “Tribe's Judicious Feminism,” Stanford Law Review 44 (1991):179–203 (discussing complementary roles of privacy and equal protection arguments for abortion rights).