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

The recognition of personal privacy, as distinguished from privacy in one’s
possessions, is a relatively new legal concept. It is also a limited right. In the 1988
case of Bowers v. Hardwick, [Bowers v. Hardwick, 478 U.S. 186 (1986).] the U.S.
Supreme Court refused to extend the right of privacy to include homosexual activity
between consenting adults. The Court reiterated that privacy considerations cannot
be used to shelter socially unacceptable behavior such as drug use, possession of
prohibited munitions, dangerous behavior, and behavior that offends deeply held
societal norms. With this language, the Court shifted the balance between individual
rights and societal stability toward community values.
In the 1989 Webster v. Reproductive Health Services [Webster v. Reproductive
Health Serv., 492 U.S. 490 (1989).] decision, the Court broadened the authority of
states to regulate the availability of abortions. The Court found that there was no
overriding privacy right that supersedes the states’ traditional right to regulate
medical practice to protect the public health and safety. Although this decision was
heralded by antiabortion medical care practitioners, it should give all medical
practitioners pause. The extent to which the state may regulate the availability and
performance of abortions is precisely the extent to which the state may regulate all
other aspects of medical care delivery. A state that may condition practice in state
facilities, or with state funds, on the banning of abortions could use these same
powers to determine which patients medical care practitioners may treat and what
treatments will be allowed. The same authority that allows states to ban the routine
treatment of addicts with controlled substances would allow the state to ban facelifts
or any other medical treatment.
3. Protecting Personal Beliefs
The states and the federal government have passed laws that allow medical care
professionals, with some exceptions, to refuse to participate in abortions. These laws
are strictly the result of political compromises, not constitutional rights. Although
most medical care providers who oppose abortion do so on religious grounds, this
does not trigger the First Amendment’s protection of the free exercise of religion. A
law that regulated abortion or any other medical treatment on religious grounds
would constitute an illegal establishment of religion.
These laws are limited in two respects. First, they apply to actions, not to patient
counseling. A medical care practitioner cannot appeal to a conscience law to defend
a medical malpractice lawsuit based on failure to counsel a patient about the medical
indications for abortion. Second, they have limited applicability in emergency
situations. If a woman presents to the emergency room in extremis because of an
incomplete abortion, the emergency room medical care practitioner cannot hide
behind a conscience law and allow the woman to die. Fortunately, almost all medical
care providers treat saving a mother’s life as of a higher ethical urgency than their
personal religious beliefs.
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