Is There a Difference Between the Right to “Have” Vs. “Perform” an Abortion?

This week Indiana woman Purvi Patel was in court to appeal her 20-year sentence for feticide and neglect of a dependent. Meanwhile, Oklahoma lawmakers are deciding whether or not to overturn Republican Governor Mary Fallin’s veto of a bill that will strip the license of any doctor who performs an abortion, and allow that physician to be charged with a felony. These two events may not seem directly related at first, but in reality they are two sides of the same coin when it comes to the effort to end all abortion access.

According to prosecutors, Patel ordered and ingested medications meant to terminate her pregnancy, and when she delivered the roughly 24-week fetus did not make enough effort to obtain medical assistance for the micro-preemie, and instead tried to hide the remains in a Dumpster when the fetus didn’t survive.  The feticide charge stems from attempting to harm the fetus when it was inside her, the neglect from being unable to sustain its life once it was delivered.

If those two crimes seem to make no sense together, neither did SB 1552, the Oklahoma bill that would criminalize doctors for performing a legal medical procedure. “Under the bill, doctors who perform an abortion could face three years in prison, and lose their medical license,” reported NPR’s Jennifer Ludden. “There are no exceptions for rape or incest—only the mother’s life. Oklahoma lawmakers passed the measure with no debate. The only doctor in the Senate—a Republican—voted no, calling it ‘insane.’” The bill was so clearly unconstitutional that even a strict abortion opponent like Fallin felt there was no way to uphold the law. Instead, she vetoed it, calling it too ambiguous and vague and unlikely to withstand legal challenge.

What abortion opponents are zeroing in on, and what abortion-rights supporters have been forgetting, is that the Roe v. Wade decision was less about granting a pregnant person the right to an abortion specifically, and more focused on protecting the right of the physician to perform a procedure without being jailed.

“Most remarkably, when describing the right to abortion before viability, [Supreme Court Justice Harry] Blackmun actually writes: ‘The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.’ At this point in the opinion, the woman is no longer consulting with her physician. Now the physician is consulting with ‘his’ patient. It’s as if the right has shifted entirely to the doctor—who is assumed to be a man,” explains Bloomberg View columnist Noah Feldman, a Harvard Law professor, in a recent op-ed. He adds, “That’s why my students are so surprised. They assume, reasonably enough, that Roe v. Wade is a landmark decision establishing a woman’s right to choose. Instead they find an opinion that transfers responsibility for the woman’s decision from the state to the physician—with the woman’s control over her own body almost an afterthought by the end of the opinion.”

While the reproductive-rights movement has been laser-focused on the right for a person to not be forced to continue a pregnancy or give birth against that person’s will, anti-abortion activists are returning to the basics: making sure it is illegal to perform the medical procedure itself. Demanding abortion only be done by board certified OB-GYNs—requiring admitting privileges to a local hospital within a certain set of miles around a clinic, limiting how many abortions a physician can perform per month without being forced to follow the expensive and medically unneeded regulations that go with operating an abortion clinic—all of these rules have been used to slowly throttle off the number of people legally allowed to offer care.

SB 1552 made the end game obvious. Of course women can retain the right to an abortion, anti-abortion advocates argue. But anyone who provides that abortion will go to jail.

Sound unreasonable? That was the exact language used by abortion opponents supporting a ban on abortions in Louisiana if the fetus has a genetic or physical anomaly. “Supporters of the bill said they didn’t believe it restricted a woman’s ability to have an abortion because it would penalize the doctor who violates the ban, not the woman,” reports the Washington Times. “If convicted, a doctor could be sentenced to up to two years in prison and could face malpractice claims and a wrongful death lawsuit. Gene Mills, president of the conservative Louisiana Family Forum, said while there may not be case law specific to the restriction proposed, ‘that doesn’t mean that this won’t be tested successfully.’”

In other words, punish the doctors, not the patient, as the mantra of the pro-life movement goes. 

So where does Purvi Patel fit into this? Performing an illegal abortion in Indiana is a Level 5 Felony. Level 5 Felonies in the state are punished with on to six years’ imprisonment and a fine of up to $10,000. Instead, the state decided to charge her with feticide, which was formerly a Class C felony but was instead escalated to a Class B in 2009, and like other fetal protection laws was meant to allow prosecution to charge a person with two crimes when a pregnant person is assaulted or killed, not to be used against the pregnant person instead.

Since Patel’s feticide charge stems from allegedly inducing her own abortion, then why wasn’t she charged with illegal abortion instead? After all, if she did self-induce, she would actually be the “abortion provider” in this case, not following the regulations of the state.

But the anti-abortion movement is desperate to continue the myth that they aren’t trying to end a woman’s right to an abortion, and that they would never jail them if they obtained one. Instead, it was necessary to find other ways to define her crime, including essentially calling her a murderer for not clamping the umbilical cord immediately after delivery. Through this sort of semantic gymnastics the right can continue to say that they are not hampering a woman’s right to an abortion and not punishing women even when they obtain illegal abortions, but still continue their mission to make safe, legal abortion completely inaccessible.

Since the 1992 court decision in Planned Parenthood v. Casey, which allowed states to put restrictions on abortion in the first trimester as long as no “undue burden” was put on a person’s right to access that care, anti-abortion activists have completely rewritten the definitions of “burden,” “access” and “patient safety” in order to argue the woman’s right to abortion has been completely untouched. They aren’t targeting women. They are simply passing laws to limit exactly who can perform a termination.

Now, by trying to remove all doctors from the equation, abortion opponents are giving their final argument: You can keep your right to an abortion, ladies. But good luck finding someone who will perform it for you.