Publication Date

2016

Document Type

Article

Abstract

In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant restrictions on access to abortion-related healthcare. The aid in dying (AID) movement has experienced the opposite trajectory between framings of healthcare and a constitutional right of decsionmaking. Originally identified as a “right to die” by advocates such as Dr. Jack Kevorkian, the movement has since transitioned to a right framed as healthcare. Dr. Timothy Quill’s call for “death with dignity” helped to reframe the AID movement from a narrow focus on decision-making at death to transforming the process of dying more generally. The transition to death with dignity coincided with an expanded public discourse about how poverty, disability, social and family support, and healthcare access impact end-of-life decision-making. At the same time, the goals of the movement expanded from court-won rights to changing healthcare practices, and increasing healthcare access, legal rights and social support for people facing the end of life.

It is a critical time to study and draw lessons from these two movements as they are accelerating in opposite directions: Last year pro-AID legislation was passed in California and was pending in twenty-five states, and cases were filed in California and New York. The Supreme Court will hear oral arguments this term in a Texas case on regulatory restrictions of abortion clinics. Further, more state abortion restrictions were enacted between 2011 and 2013 than in the entire previous decade. While other scholarship has compared AID and the abortion right to consider their doctrinal, moral and ethical similarities, this Article is the first to identify that these two movements arc in opposite directions between framings of healthcare and rights, with vastly different efficacy for the rights holder. I draw upon this comparison to consider how the history and discursive development of these two movements offers the possibility of framing healthcare more broadly within the context of dignity to achieve social justice goals beyond narrow constitutional rights status. The transformation of AID from a constitutional rights frame to a healthcare frame highlights the importance of developing a healthcare model related to dignity that is undergirded by social support, legal rights and healthcare access. However, the history of the abortion right cautions against narrowly identifying healthcare within the confines of the individual doctor-patient relationship because it risks subordinating the decisional autonomy of patients to the decision-making of their doctors. Taken together, these movements gesture toward situating rights within a healthcare framing that considers how social, political and economic systems and relationships come to bear upon decision-making. I conclude that while constitutional rights status is important for anchoring a minimum protection of the right of patient decisional autonomy, a healthcare-as-dignity frame brings with it the possibility of addressing underlying conditions that deprive individuals of meaningful choice in these contexts.

Publication Title

Utah Law Review

Volume

2016

Issue

5

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