Public Health Law Map - Beta 5 - Medical and Public Health Law Site

contents and to the best of the interpreter’s knowledge and belief, the individual to
be sterilized understood what the interpreter told him or her. (42 CFR sec. 50.205)
E. Abortion
Abortion is the most contentious issue in contemporary medical practice. It divides
medical care practitioner from patient and health care practitioner from medical care
practitioner; it submerges deep ethical problems such as the destruction of medical care
practitioners’ duty of fidelity to their patients; and, perhaps most troubling, leads
medical care practitioners to support legal positions that are destructive of the privacy
of the medical care practitioner–patient relationship.
Abortion also poses medical malpractice risks because the courts do not give medical
care practitioners a right to veto a woman’s decision to have an abortion. Even when
the courts limit a woman’s access to an abortion, they still leave the decision to the
woman. This becomes a malpractice issue when a fetus potentially suffers from a
genetic disease or congenital anomaly. If a woman is denied information about the
availability of prenatal testing and abortion, the medical care practitioner may be held
liable for the costs of caring for the damaged infant.
1. The Politics of Abortion
The U.S. Supreme Court has never ruled that abortion is legal or, conversely, that it
is illegal. Abortion itself is not a constitutional issue. The Supreme Court decisions
that have shaped access to abortion have been based on the legal theory of privacy.
The Court has been concerned with the extent to which legislatures may regulate the
medical care practitioner–patient relationship, not with abortion as a right
independent of the medical care practitioner–patient relationship. Legally, it matters
little that the cases that are prosecuted concern abortion rather than orthopedic
surgery. Politically, there is no strong lobby group pushing legislatures to regulate or
deregulate access to orthopedic surgery. Concerned citizens do not seek injunctions
to prevent strangers from having an arthroplasty.
Over the past several hundred years, the legality of abortion has changed with
cultural norms. The antiabortion laws that were found to violate a woman’s privacy
unconstitutionally in Roe v. Wade had their roots in laws passed in the nineteenth
century to protect women from the medical hazards of unsterile abortions. Abortion
was legal when the Constitution was adopted but had been illegal in earlier periods.
It is meaningless to argue that there is a historical justification for either banning
abortion or making it universally available. Medieval societies banned abortion, but
they also limited medical treatment in general. Societies that allowed abortion were
frequently oppressive to women in other fundamental ways. Whatever legal course
society chooses for abortion must be rooted in contemporary needs and values.
2. The Problem of Privacy
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