Making Abortion Rare, the Chief Justice Roberts Way
Aug. 13, 2020
In 2016, Chief Justice Roberts voted to uphold a Texas law requiring abortionists to have hospital admitting privileges. But in 2020, he voted to reject an identical statute in Louisiana.
Why? Because his 2016 opinion was overruled by the majority of the Supreme Court. Even though he still believes the majority erred in their 2016 legal reasoning, he now argues that ruling is binding on him in 2020 and all future rulings.
For Roberts, the core issue at stake is not overturning Roe at the earliest opportunity; it is the stability of the law. That stability requires adherence to precedents (stare decisis). Prior rulings cannot be reversed simply by recycling the original arguments (which previously failed) in front of a new set of justices.
This sets the agenda for at least the next ten years.
Roberts is clearly signaling that he will not vote to overturn Roe. Abortion bans will be struck down. But in the details of his opinion he also signaled that he will continue to entertain regulations that protect women’s health.
The good news for abortion opponents is that provisions in Roe allowing laws to protect health can be expanded to prevent 80% or more of all abortions.
Consider, for example, the problem with coerced abortions. As the prominent pro-choice ethicist Daniel Callahan has written:
That men have long coerced women into unwanted abortion when it suits their purposes is well-known but rarely mentioned. Data reported by the Alan Guttmacher Institute indicate that some 30 percent of women have an abortion because someone else, not the woman, wants it.
Indeed, a subsequent study found that 64% of women reported feeling pressured to choose abortion by others.
The solution to coerced abortions requires more than just making it illegal to force a woman to have an abortion. The best opportunity to prevent coercion is in the screening process prior to an abortion where counselors can ask questions and access the body language of the patient and person(s) accompanying her.
Similarly, the American Psychological Association’s Task Force on Mental Health and Abortion reported that there are at least fourteen risk factors that can be used to identify the women who are most likely to have negative psychological reactions to abortion. Among these are feeling pressured, negative moral views of abortion, prior mental health problems, and feelings of attachment to the pregnancy.
Significantly, over 80% of women seeking abortions fall under one or more of the APA’s higher risk categories. But in practice, abortion clinics are not providing adequate screening for these risk factors.
One reason for the neglect of screening and counseling is there is little or no liability for poor abortion counseling. A slavish respect for “a woman’s right to choose” can easily slip into abortion as a service, no questions asked, buyer beware.
Secondly, a standardized, one-size-fits-all, ten minute pre-abortion “counseling” session is necessary to keeps costs low and throughput high. Indeed, it is arguably the most important factor in keeping abortion costs so low.
If the average cost of an abortion in 1973, $300, had kept pace with other medical costs, an abortion in 2020 should cost around $4,000. Instead, first trimester abortions are in the range of $300-$800.
The low cost of abortion compared to other medical services is achieved by minimizing the costs of screening, counseling, and risk assessment. Women are expected to self-diagnose. If they have the money, they get an abortion. Minimal discussion.
By comparison, there are about 700,000 elective Lasik surgeries per year. But Lasik surgeons never operate based on a person’s self-assessment alone. Instead, they actually reject 20-30% of people seeking Lasik surgery because, after examining their eyes, many people are simply poor candidate for good results. In short, Lasik surgeons take risks versus benefits assessments seriously.
Moreover, while abortion clinics complain of a shortage of abortion doctors willing to operate at low per person rates, there is no shortage of Lasik surgeons. Why? Because Lasik surgery is properly priced. It is priced to include proper screening, counseling and the culling of contraindicated cases.
Regarding Chief Justice Roberts’ demand for respect of precedent, it is most notable that Roe specifically rejected abortion on request, caveat emptor.
Justice Blackmun, the author of Roe, acknowledged that abortion is not a panacea. It has risks. Uninformed, high-risk, or pressured women can be injured by contraindicated abortions. Therefore, according to Roe:
. . . basic responsibility for it [the abortion decision] must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.” (Emphasis added)
It is right there in Roe. It is the doctor’s duty to protect patients from unwanted, unsafe, unnecessary, and non-beneficial abortions. Negligence can and should be punished.
What is needed are laws establishing clear, actionable standards for individualized risk/benefit assessments. Only with clear standards can abortion doctors be held properly accountable for failing to “exercise proper medical judgment.”
Moreover, enforcement of these laws should not depend on politicized state inspectors. The principle means of enforcement should be through civil liability.
If plaintiffs can demonstrate negligence in the screening, counseling, and/or medical advice they received, the legal presumption should be that these women would not have consented to their abortions. In such cases, the injured women should be entitled to damages not only for their own psychological distress and also for the wrongful deaths of their unborn children.
This is the only way to root out negligent pre-abortion screening.
If abortionists cannot document why abortion is more likely to help than hurt each individual patient, they should pay for all the harm that ensues from such careless disregard.
If doctors are confident that an abortion will actually benefit a woman’s life (much less, are unable to document from published research the evidence for such confidence), they shouldn’t be performing abortions. That is the same standard used for all other medical procedures. It should apply to abortion, too.
Such laws will not eliminate all abortions. But they could easily prevent the vast majority of abortions, 80% or more. Moreover, such women-centric laws are precisely those that Roberts, and the vast majority of the public, will support.
David C. Reardon is the author of numerous medical studies on abortion complications and the author of Making Abortion Rare.
For relevant citations and greater detail see:
Reardon DC. Abortion decisions and the duty to screen: clinical, ethical, and legal implications of predictive risk factors of post-abortion maladjustment. J Contemp Health Law Policy 2003; 20(1): 33–114.
Reardon DC. The abortion and mental health controversy: A comprehensive literature review of common ground agreements, disagreements, actionable recommendations, and research opportunities. SAGE Open Med. 2018; 6: 2050312118807624.
