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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.” The Court thereby vested in doctors, instead of exclusively in women, the discretion to make the abortion decision. The Roe Court’s accommodation of the “medical model” of abortion reform was criticized for subordinating women’s constitutional rights to the judgment of their doctors. Since that time, the Court’s analysis has shifted to identify abortion exclusively as a right of decisional autonomy. However, the scholarship of abortion has left unanswered an important question: What, if anything, was lost when the Court turned from the medical model of reform towards identifying abortion as a right of decisional autonomy? In this article I call attention to and examine a previously unrecognized benefit of the Court’s early abortion analysis: Under the medical model, the Court viewed abortion as a right that was inextricably linked to healthcare. It was therefore more willing to protect access to abortion-related healthcare as integral to the right itself. While early cases compromised a woman’s constitutional right of choice by subordinating her decision to the judgment of her doctor, I argue that these cases better protected effective access to abortion via healthcare. By contrast, I demonstrate that the Court’s current analysis narrowly identifies abortion 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. Restoring healthcare to the right of abortion will bring the Court’s analysis full-circle, back to recognizing abortion as a right of women’s healthcare, while rejecting the earlier medical reform analysis that cast women as passive objects in the healthcare system and deferred their decision-making to providers. Recognizing abortion as both healthcare and choice will allow the right of abortion to better withstand the challenges of legislation that seeks to restrict access to abortion-related healthcare, create broader appeal for the right by casting it in a gender-neutral context, and will expose the fiction that is currently being perpetuated that women possess a constitutional right to abortion when they have the right to choose abortion but are denied access to abortion services necessary to exercise that choice.

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Hastings Law Journal