For Rawls, publicness is a hallmark of civil disobedience. But Watson thinks that “covert disobedience” is more apt for this moment. “You do it covertly for two reasons,” she explained. “The need is immediate, and you do not believe CD has any chance of changing the law.”
Some docs are freer to act than others — California and Massachusetts, among other blue states, have moved to shield providers who help patients from anti-abortion states and the patients who travel for that help. Do these providers have an ethical duty to do so? Mary Faith Marshall, director of the Center for Health Humanities and Ethics at the University of Virginia School of Medicine, answered carefully. “Under the oath I have taken, I have a body of knowledge and skills and profess to use them at the benefit of my patients even to my own detriment. We don’t require people to be martyrs,” she stressed. But “providers should be advocating for their patients at the level of the individual and at the collective level. It may mean civil disobedience; it certainly means lobbying, speaking out.” Just as doctors toiling in the hospital sepsis wards were instrumental in Roe, clinicians are best positioned to show legislators in ban states: “These are the sequelae of your decisions.’”
Like most of the people I spoke to, Matthew Wynia does not expect lots of doctors to step out and declare themselves felons. “We docs are rule-followers,” he wrote in an email. “But the one place where we might become rebels is when a state law directly forces us to harm our patients.” Hospitals are risk-averse and tightly regulated. Departure from the law can result in lost funding, censure, or discreditation. Nevertheless, hospitals protect undocumented patients from immigration authorities. ERs revive patients who overdose on street opioids without informing the narcotics police. “If a state law today forces us to harm patients by waiting until they are at death’s door before we intervene with life-saving surgery,” continued Wynia, an internist and director of the University of Colorado’s Center for Bioethics and Humanities, “it is reasonable to debate whether that’s a law we should collectively disobey.” In the AMA Journal of Ethics, Wynia proposes “professional civil disobedience,” in which groups and associations decide together “to break a social rule in order to support the medical needs of our patients.”
Encouragingly, medical associations have responded to the overturn of Roe with unprecedented unity and clarity. More than 75 of them joined the American College of Obstetricians and Gynecologists and the American Medical Association in a statement condemning the bans. “Our patients need to be able to access — and our clinicians need to be able to provide — the evidence-based care that is right for them, including abortion, without arbitrary limitations, without threats, and without harm,” they declare. The extreme right may be pushing the medical establishment leftward. At its June convention, the AMA, hardly the most radical organization on the planet, resolved to “recognize that health care, including reproductive health services like contraception and abortion, is a human right.” These organizations can do more by establishing funds to support the legal expenses and lost income of members sidelined by the consequences of ethical, illegal actions. And there are myriad other institutions that can be pressured to slow, even if not outright sabotage, the destructive machinery: university administrations, state licensing boards, federal agencies.
“This is the moment for those who believe they are illegitimate laws to refuse to accept them.”
Watson believes that together, substantial numbers of civil disobeyers could change hearts and minds and with them norms and, finally, laws. “The social reaction to these laws will determine whether they are legitimate or illegitimate,” she told me. “This is the moment for those who believe they are illegitimate laws to refuse to accept them.” Resistance takes place in the streets, in academic journals and op-ed pages, and at the bedside. “It is up to doctors to determine what is imminent risk, and as soon as it is defined and predicted, not to wait for it to become realized” — in other words, when the water breaks, don’t sit on your hands until the patient is on the verge of sepsis. “If everyone agrees, then that becomes the standard of care. And the hospital counsel has to tell the docs, ‘Do good medicine. I have your back.’” The imperative is to act now, she said. “This is how the historic moment can turn without waiting 50 years for a new Supreme Court.”
We may find that the tragic stories alone will change the laws faster than anticipated. Nearly three-quarters of Americans favor legal abortion if a woman’s life or health is at risk, a recent Pew Research Center poll found. It is not difficult to look at an ectopic pregnancy, a case of pregnancy-caused life-threateningly high blood pressure, or a severe fetal anomaly discovered late in gestation and understand that abortion care is inextricable from the other work of doctoring. Even the American Association of Pro-Life Obstetricians and Gynecologists finesses the untruth that abortion is never medically necessary by distinguishing it from “preterm parturition,” which, they say, does not entail killing the fetus but is merely “separating a mother and her unborn child for the purposes of saving a mother’s life.” If only to legitimize other ignorant and punitive provisions, anti-abortion states may amend the bans to allow doctors who treat complex or problematic pregnancies to do their jobs without legislative meddling.
Far more difficult, though, as always, will be defending what Watson calls “ordinary” abortions, what doctors used to term “elective” — to distinguish them from “therapeutic” — abortions, and what the American Association of Pro-Life Obstetricians and Gynecologists derogates as “induced abortions,” whose only aim is to “produce a dead baby.” These are the abortions that I and millions of others have had, without a 104-degree fever, without three kids crying for milk, without an artistic career to pursue or two crappy jobs without insurance or family leave to hold down. We sought abortion for no other reason than we were pregnant and did not want to be.
We sought abortion for no other reason than we were pregnant and did not want to be.
To regain the right to ordinary abortion, appeals to good medicine lose their power, and little a provider does or refuses to do will win the day. Instead, we must let it be known that — as National Advocates for Pregnant Women Executive Director Lynn Paltrow, Lisa Harris, a doctor and professor of obstetrics and gynecology at the University of Michigan, and the University of Virginia’s Marshall argue in a forthcoming issue of the American Journal of Bioethics — something much bigger is at stake.
A bedrock principle of justice, from common law to constitutional law, is that no one can be compelled to give over their body or any part of it to save another person, even if the other person might die without it. Such a forced intrusion “would change every concept and principle upon which our society is founded,” wrote a Pennsylvania court in a 1978 case upholding a man’s right to refuse to donate bone marrow to his cousin, who needed it to survive.
When the person becomes pregnant, however, fissures open in the bedrock. This is where Roe came in. “While we conventionally think of Roe as the decision that defined the Constitutional right to not be pregnant, it also delineated — and was in fact the first articulation of — rights a woman has while pregnant,” write Paltrow, Harris, and Marshall. Each in her own capacity, these authors have witnessed hundreds of pregnant people in the U.S. — almost always those who use drugs and are brown, Black, and/or poor — arrested, detained, and forced to undergo unwanted medical procedures and treatments to “protect the fetus,” even when their pregnancies were proceeding normally. With Roe gone, the threat of such violation spreads to every uterus-bearing human: “An abortion ban [means] that anyone who becomes pregnant … will become newly vulnerable to legal surveillance, civil detentions, forced interventions, and criminal prosecution.” The bans, they write, create “a new class of persons for whom fundamental Constitutional rights don’t apply.” This is not a medical problem. It is a legal, existential one.
For 150 years, the medical profession has dominated reproduction and abortion. With this dominance comes both power and vulnerability — and ethical obligation. Yet if we leave abortion to the doctors, we risk privatizing and depoliticizing it. Since the overturn of Roe, I’ve noticed that the word “abortion” has gained a tail: It’s now “abortion care.” Indeed, abortion is health care, as the placards and T-shirts say. And the decision to end a pregnancy may be taken “in consultation with” a doctor, just as it may involve a lover, mother, affinity group, or, in the hearts of its parents, the fetus.
But not all abortion is care, defined as what one person does for another. It is, instead, something a person does for herself, by herself. Abortion is a defining act of autonomous, free individuals exercising their inalienable human rights. We must fight for abortions that enrich lives, not just those that save them.