A doctor once again found herself in the crosshairs of the antiabortion movement — and this time not for performing an abortion but for talking about one.
Last July, Dr. Caitlin Bernard, a physician in Indiana, terminated the pregnancy of a 10-year-old sexual assault victim from Ohio. At the time, the procedure was legal in Indiana, though the state has since passed a ban that is now tied up in court.
Bernard spoke publicly about the procedure, and it caused a firestorm. At first, Indiana’s antiabortion attorney general, Todd Rokita, accused Bernard of making the whole case up. Not long after, police arrested the man who had assaulted the child. Now Indiana’s medical licensing board has censured Bernard for speaking out, arguing that she violated her patient’s privacy, even though she did not use the girl’s name or otherwise identify her.
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The Bernard case encapsulates two key developments: Doctors, many of whom had remained on the political sidelines, are becoming more active on the side of abortion rights, and conservative states are responding by cracking down on the flow of speech and information.
Before Roe v. Wade, physicians played a prominent role in the fight to reform abortion laws. Groups like the American Medical Association called for the decriminalization of abortion. Leading constitutional arguments for abortion rights centered on the impossibility of practicing medicine in the shadow of laws that made abortion a crime. Equally important, criminal abortion laws led to the censorship of speech about abortion, as physicians understood. Sometimes, doctors got in trouble for informing people about which other practitioners were safe or for making a referral. The line between providing medical information and committing a crime was unclear, and it was often physicians who paid the price.
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But after Roe, many physicians retreated from the fight. Some medical organizations, like the American College of Obstetricians and Gynecologists, often submitted briefs in abortion cases and criticized federal abortion restrictions. Others, like the American Medical Association, were more circumspect. Even as the American Bar Association endorsed abortion rights in 1992, the AMA demurred. One exception involved physician speech. When the Reagan administration introduced a rule that stopped doctors and clinics from receiving federal family planning dollars if they referred patients for abortion or counseled them about it, the AMA protested and went to court. The rest of the time, however, abortion was mostly a political third rail for leading medical groups.
Now that abortion is a crime again in large swaths of the country, a broader array of physicians have once again mobilized against bans. The reasons are familiar: Now, as in the past, physicians must interpret vague and sometimes contradictory wording about medical exceptions, and they may face harsh fines and other criminal consequences if a prosecutor second-guesses their decisions. And once again, physicians might get in trouble not only for performing abortions but even for talking about them.
In 2022, the National Right to Life Committee, a leading antiabortion group, developed a model law that would define a great deal of speech about abortion as criminal aiding or abetting. That included “giving instructions . . . regarding self-administered abortions or means to obtain an illegal abortion” as well as making referrals. Conservative states may not even need to pass the new model law: Prosecutors could potentially use existing criminal laws on aiding or abetting to prevent physician speech.
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But wouldn’t that violate the First Amendment? The answer isn’t clear, and antiabortion lawmakers might be willing to take their chances. Providing information about an act, like abortion, that is criminalized can cross the line into aiding or abetting. In 1997, for example, the Fourth Circuit Court of Appeals signed off on penalties against Paladin Press for its publication of “Hit Man,” a book that provided advice on how to commit the perfect murder. Paladin’s supporters had argued that the book was simply a crime novel. But the line between providing information and using speech to facilitate a crime is hard to identify. In a more recent case, a court held that a guide in Yellowstone National Park had not crossed the line when he published information about illegal cliff jumping, because he didn’t provide a detailed account of how to commit a crime or make it easier for people to get away with violating the law.
When can doctors provide information about abortion without crossing this line? Will offering medically accurate information about abortion be said to encourage it or make it easier for a crime to take place?
There are no easy answers, and that may be the point, because it makes it less likely physicians will mobilize against abortion bans. But the Bernard case in Indiana is just the beginning. If talking about abortion is a crime, physicians will be on the front lines of the abortion wars whether or not they want to be, and it won’t just be when they opt to provide abortions. And while the price of resistance may seem high, silence will have a cost too. Any fight to roll back this generation’s criminal abortion laws cannot succeed without doctors demanding change.
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Mary Ziegler is a professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”