Publication Date

2022

Document Type

Article

Abstract

The Supreme Court in Roe v. Wade framed the abortion right as a right to make the abortion decision in consultation with a “responsible physician.” Under this framing, doctors were cast in the role of medical “gatekeepers” to mediate patient access to abortion. In the ensuing years, the doctor-patient relationship has become the site of restrictive abortion regulations in many states. This Article argues that Roe’s framing suffers from a foundational flaw: While the gatekeeper framing may have been appropriate in the Roe era when abortion was surgical and non-clinical abortions were potentially lethal, today, medication abortion—a two-drug non-surgical regimen that can safely and effectively terminate a pregnancy at home—renders the Court’s gatekeeper framing obsolete and no longer reflects the technological or medical realities of abortion-related healthcare. This Article reasserts the constitutional right of abortion and argues that advances in medical technology call for a new framing for the right as one of direct access to abortion that is not dependent upon the provider-patient relationship. This framing is better suited to protect the breadth and depth of the abortion right because it reflects the new technological realities of the practice of abortion and the promise of abortion care outside of the medical gatekeeper model which has been the focus of restrictive regulation and clinic harassment.

It is a critical time to re-examine the gatekeeper framing of the abortion right considering the dramatic conservative shift in the Supreme Court that threatens Roe and in the midst of a pandemic which—in a complete reversal of the Roe period—renders in-person care by a provider potentially dangerous. In January, the Supreme Court’s first abortion decision since President Trump’s appointment of three justices, FDA v. ACOG, doubled down on the medical gatekeeper model by reinstating an FDA requirement that medication abortion pills must be dispensed in person by a provider. Re-examining the historical, social, and technological assumptions that animate the current framing of the abortion right is vital to thinking of new ways to frame and expand abortion access. Today’s online medical and pharmaceutical marketplace reveal that the Court’s confined vision of the abortion right was informed by the social and technological realities of its time, social and technological realities that no longer exist. If Roe’s cramped vision of the abortion right has run its course, as I argue here, then the movement to protect access to abortion must include direct consumer access to abortion. Empirical evidence reveals widespread use of self-managed medication abortion in the face of abortion restrictions. The shuttering of clinics as “non-essential services” during the COVID-19 pandemic and the unnecessary increased risk of clinic-based care for procedures that can be safely managed at home only amplify the need for direct-to-consumer access to abortion care. As state legislatures seek to make it easier to prosecute individuals suspected of terminating their own pregnancies, it is a crucial moment to reconsider the constitutional foundation of abortion and the right of self-managed care as a matter of criminal and reproductive justice and public health.

Publication Title

Cornell Law Review

Volume

107

Issue

1

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