On June 13, The Supreme Court announced its unanimous decision in FDA vs. Alliance for Hippocratic Medicine, governing access to a critical drug used in medication (non-surgical) abortions and to manage miscarriages. The decision preserves access (for now) to the widely used drug mifepristone, currently legal in 36 states. The court decided the case on procedural grounds, concluding that the plaintiffs, a coalition of anti-abortion physicians and medical associations, lacked standing.
[time-brightcove not-tgx=”true”]Reproductive-justice advocates cautioned that challenges to the availability of the drug are likely to make their way back to the court, threatening access to a medication that has proved extraordinarily safe and effective.
Yet this case goes far beyond issues of legal standing and procedure. The plaintiffs explicitly deployed their authority as doctors and medical providers to frame their interests as rooted in safety, patient care, and public health, rather than in their religious or moral opposition to abortion.
The complex history of how physicians have organized to legitimate their authority over the reproductive lives of their patients is worth examining, as it reveals how anti-abortion forces are building on a well-worn path that has been at least partially cleared by abortion-rights advocates.
The familiar claim that the decision to have an abortion should be made “between a woman and her doctor” has long been associated with abortion-rights rhetoric as a right to privacy from the state. This principle was at the heart of the Roe majority opinion authored by Justice Blackmun. The “and her doctor” part of this formulation has received less attention, but is at the heart of the argument in the mifepristone case.
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Physicians’ assertions of authority over the right to terminate a pregnancy and other issues of reproductive health did not begin with Roe. As the Roe opinion noted, in the late 19th century, the American Medical Association’s Committee on Criminal Abortion had denounced abortion and asserted that it should only be permitted if “at least one respectable consulting physician” also concurred with the decision. Thus, even when physicians took positions allowing for some access to abortion, they insisted that medical professionals hold an an outsized voice in the process.
In the early 20th century, elites associated with the American Eugenics movement advocated for laws permitting states to sterilize individuals without their consent, in their efforts to rid the population of those they deemed “undesirable” or “unfit.” Doctors were again critical to this effort to supervise and legitimate curbs on reproductive freedom.
In the 1930s, a group called the American Eugenics Society organized meetings of doctors to encourage them to play an active role in the eugenic sterilization programs as an extension of their responsibility as medical professionals. Having doctors on state eugenic boards gave these sterilization schemes the aura of respectability, as they were overseen by medical professionals. As one physician explained to his colleagues at a 1937 conference on the subject, “There is no longer any doubt but that the physician has a eugenic responsibility. In any eugenic scheme of society, the physician, and particularly those concerned with preventive medicine, must play an important part. He will function most in the therapeutic measures of sterilization and birth control.” Doctors thus framed their role not only as treating individual patients but as also having authority over policy and law, especially over issues related to reproduction.
Appeals to physicians to use their authority in this manner continued well after the public respectability of the American eugenics movement waned. In the 1950s and 1960s, some obstetricians and other doctors advanced similar arguments about their obligation to advocate for population control policies. Dr. C. Lee Buxton, Chief of Obstetrics and Gynecology at the Yale School of Medicine argued in a medical journal in 1966 that “the medical profession should accept a major responsibility in matters related to human reproduction as they affect the total population and the individual family.” Doctors would play a significant role in the growing population control movement, again deploying their medical expertise and authority to advance laws rooted in social control.
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This authority was not just a legal right; by this logic it was a professional obligation that doctors could not refuse. Consequently, doctors served on state eugenics boards that oversaw systematic non-consensual sterilizations until into the 1970s. At least 60,000 documented involuntary sterilizations were approved and performed by state bodies in the 20th century.
Obstetricians like Buxton also supported the framework eventually enshrined in Roe that physicians, rather than the state, possessed the authority to determine whether a pregnancy should be terminated or carried to term. In 1970, an AMA committee revised its position opposing access to abortion but still cautioned against “mere acquiescence to the patient’s demand” for an abortion, a sentiment expressed elsewhere by doctors who also supported Roe. Again, we see skepticism from medical authorities that a pregnant person be trusted to make reproductive decisions for themselves.
Most state eugenic laws were repealed by the 1970s, but non-consensual sterilizations continued under certain circumstances. Notably, the federal government continued to approve the procedure for Native American women under the auspices of the Bureau of Indian Affairs. Elsewhere, physicians, rather than state authorities, oversaw non-consensual sterilizations.
For example, in the 1970s, doctors at Los Angeles County Hospital, the teaching hospital of the USC School of Medicine, performed hundreds of tubal ligations on Mexican-origin women, many of whom later stated they never provided their consent.
Ten of these women eventually sued the hospital, naming Dr. Edward Quilligan, the Chief of ob/gyn at the time, as the defendant. The women offered heart-wrenching testimonies about the profound damage these non-consensual sterilizations caused them and their families. Quilligan told a journalist at the time (and to producers of a documentary on the case 40 years later) that he had done nothing wrong: “We were practicing good medicine.”
The judge agreed. In other words, physicians were not only entitled to abridge the reproductive autonomy of their patients, but they were also sometimes required to do so in the name of “good medicine.” Indeed, Quilligan suffered few professional repercussions and he has been honored at the highest level by prestigious medical schools and professional associations.
Read More: Abortion Rights Benefit People Who Want Kids, Too
When a group of anti-abortion medical providers incorporated as the Alliance for Hippocratic Medicine with the express purpose of filing a lawsuit to ban mifepristone, the briefs they submitted all built on this history. They too were doctors drawing on the principle valorized in Roe that decisions regarding the termination of pregnancy required their authority and involvement.
These briefs are largely free of religious and moral arguments, focusing instead on estimates of gestational development, safety of medication, and the efficacy of review processes, among others that fall under the authority of medical providers. And their language often centers on issues between a woman and her doctor, sometimes in paternalistic terms. One brief insisted that their interest in banning the drug stemmed from their ethical commitment to “protect women and girls from the documented danger of chemical abortion drugs,” against all evidence about the safety of the drugs.
Such arguments draw on the troubling history of deference that (historically largely male) physicians have demanded to sometimes supersede the autonomy of their (female) patients.
Abortion and reproductive health providers do face significant legal, political, and personal threats for their work; their safety and professional right to practice must be protected vigorously. Nor should medical expertise and evidence-based research be dismissed. They are a vital part of reproductive health and care.
But a reliance on medical expertise need not be rooted in reflexive deference to that expertise, as Justice Blackmun envisioned. Indeed, the Women’s Health Movement of the 1970s developed approaches to reproductive health, including contraception, access to abortion, care and support during pregnancy and delivery, and child raising that demonstrated how medical expertise and reproductive autonomy can work together. Many reproductive justice groups today advocate similar practices, including advocating for legal access to self-managed abortions that do not require a physician’s involvement.
But the framing of reproductive decisions as lying “between a woman and a doctor” has opened the door for foes of reproductive autonomy to advance their arguments in the neutral language of medical authority. To secure a more expansive vision of reproductive justice will require retiring this phrase in favor of a vision of reproductive justice that does not reject medical experience or advice, but guards against any potential coercion, even when it comes bearing a white coat, to any person’s reproductive autonomy.
Emma Peterson is a recent graduate of Yale University with a degree in the History of Science, Medicine, and Public Health. Daniel Martinez HoSang is a Professor of American Studies at Yale University with a secondary appointment in the Section of the History of Medicine at Yale School of Medicine.
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.
