Do Doctors have First Amendment Protection from Anti-Abortion Laws?

Are Physicians Protected by the First Amendment?

Are Patients protected by HIPAA, the Patient Privacy Law?

Can just anybody, or even the state, sue, or arrest and charge with a crime anyone who discussed abortion, was referred for, or had an abortion — even if it was out of the state of the patient’s residence?

How “long” is the “long arm of the law,” and can it actually investigate, charge, prosecute, and punish physicians and/or patients for receiving private healthcare advice and/or services?

Suddenly! Yes, suddenly — as in acutely, and even cataclysmically-like-an-earthquake so — physicians and other healthcare professionals seem to find themselves between a proverbial rock, and a hypothetical hard place.

The reason why, is because 6 GOP-nominated radicals on the still-9-member Supreme Court of the United States (SCOTUS) {Those justices are: Alito, Thomas, CJ Roberts, Kavanaugh, Gorsuch, and Barrett.} have completely ignored judicial precedent — which is the “holy grail” of jurisprudence that helps form the foundation of law itself, and thereby give stability to civil society — and overturned at least TWO rulings of an earlier court — Roe v Wade (1973), and Planned Parenthood v. Casey (1992) — in their 6-3 decision in Dobbs v. Jackson Women’s Health Organization (2022).

The Roberts Court, April 23, 2021
Seated from LEFT to RIGHT: Justices Samuel A. Alito, Jr., Clarence Thomas, Chief Justice John G. Roberts, Jr., Justices Stephen G. Breyer and Sonia Sotomayor
Standing from LEFT to RIGHT: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Of course, overturning even century-old precedent has been the characteristic hallmark of the Roberts Court. Since becoming Joker in Chief Justice in September 2005, he has presided over 20 reversals of well-established precedented opinion, some dating as far back as 1911. If, in the law, nothing is TRULY ever settled, and any court now, or in the future, can simply overturn any law or decision with which they disagree — regardless of how long it’s been in effect, and regardless of what their confirmation testimony was — then our nation’s foundation is insecure.

There are numerous Constitutional problems with the 6 radicalized jurists’ decision, not the least of which is that, by returning to the states the ability to decide abortion law (or any other law over which Federal law has presided), it completely ignores undermines and usurps the essential tenet of the Constitution’s Supremacy Clause, which is that Federal law has ultimate authority over any other law by a state, or locality.

To add insult to injury, Associate Justice Clarence Thomas — long known as “The Silent Justice,” because from Wednesday, February 22, 2006, until Monday, February 29, 2016 — 10 years — he NEVER spoke one word at hearings — wrote in Dobbs that judicial activists could also overturn other recent cases such as Griswold v. Connecticut, Obergefell v. Hodges, Lawrence v. Texas, and other decisions with which they personally disagree.

On page 3 of his opinion (page 119 of 213 of the entire document), he wrote in part that,

“…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”

Justice Thomas continued in part by writing,

“That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”

He predicates his entire opposition to the ruling in Roe upon but one idea: His distaste for the term “substantive due process,” by quoting himself, and opining that,

“As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”

He continues down that lonely, one-lane “substantive due process” road by writing that,

“Third, substantive due process is often wielded to “disastrous ends.” Gamble, 587 U. S., at ___ (THOMAS, J., concurring) (slip op., at 16). For instance, in Dred Scott v. Sandford, 19 How. 393 (1857), the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. See id., at 452. While Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,” Obergefell, 576 U. S., at 696 (ROBERTS, C. J., dissenting), that overruling was “[p]urchased at the price of immeasurable human suffering,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment). Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions, Timbs, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 2)—after more than 63 million abortions have been performed, see National Right to Life Committee, Abortion Statistics (Jan. 2022), https:// http://www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf. The harm caused by this Court’s forays into substantive due process remains immeasurable.”

Again, read this line: “in Dred Scott v. Sandford, 19 How. 393 (1857), the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.”

To reiterate, Justice Thomas argues that in 1857 SCOTUS Justice Benjamin Robbins Curtis (1809-1874) — the author who used the term “due process” in his opinion in Dred Scott, from which the concept of “substantive” due process arose — was wrong to assert/rule/opine that “Congress was powerless to emancipate slaves brought into the federal territories.” In essence, he reaches back into history to justify his objection to modern law, though by so doing, he turns it inside out, and then applies it to modern law.

The gist of the Dred Scott decision, as Justice Thomas wrote, was that “Congress was powerless to emancipate slaves” because the SCOTUS “invoked a species of substantive due process.” {Read an overview of the case at: https://www.history.com/topics/black-history/dred-scott-case} Essentially, Due Process is subdivided into two categories: Substantive, which deals with rights & responsibilities, and Procedural, which deals with the parameters and mechanics of seeking remedy under law, or enforcing the law.

Justice Thomas’ bitterness is palpable. Although, it’s difficult to absolutely discern at which branch of government he’s angry — the SCOTUS, or Congress.

Evan Bernick, the Assistant Director at the Institute for Justice, wrote in late December 2015, that substantive due process is “the idea that the Due Process of Law Clauses of the Fifth and Fourteenth Amendments impose absolute limits on the government’s power to deprive people of life, liberty, or property, regardless of what procedures are used to effectuate those deprivations.

“In summary, according to Curtis, [Chief Justice Roger B.] Taney’s argument that the Missouri Compromise violated the Fifth Amendment’s Due Process of Law Clause did not fail because Congress could deprive a citizen of their liberty or property through general, prospective legislation, “merely because he came himself or brought his property into a particular Territory of the United States” — Congress could not do so. It failed because slavery was so hostile to natural rights that it had no existence absent positive law — thus, banning it from a federal territory did not deprive slave owners who voluntarily entered into that territory with their slaves of any liberty or property at all. For that reason, such antislavery laws did not violate the Due Process of Law Clause. The deep connection between natural rights and due process of law is inescapable.

“”Substantive due process” may sound silly — no surprise, since the term was coined by the doctrine’s critics. But, to paraphrase Lincoln, the doctrine is right, absolutely and eternally right, even though it was improperly — and unjustly — applied in Dred Scott. Substantive due process — better, due process of law — is an entirely legitimate, indeed, essential, part of our constitutional tradition. Defenders of limited government should not be ashamed of it. They should wholeheartedly embrace it.”

The irony is bitter, dark, and deep, and is most loathsome indeed, because not only was Justice Thomas born 1948 in the Jim Crow era South, in the tiny, nondescript, unincorporated, predominately Black community of Pinpoint, Georgia, but he is also a Republican arguing that “states’ rights” should have supremacy over Federal law and the Constitution, and to add insult to proverbial injury, in 1987 he married a White woman.

What’s next? Loving v. Virginia? Brown v. Board of Education? If the argument was in any way associated with either due process, or substantive due process, Justice Thomas seems to oppose the notion merely because it uses that term. Perhaps instead he should have more succinctly written, or said, something to the effect of “use a different word in your argument, because I get hung up when you make it using the term “substantive due process.” But, far be it from him to hold two seemingly contradictory ideas in his mind simultaneously.

“The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”

― F. Scott Fitzgerald, in his 1945 novel “The Crack-Up“

Article VI Clause 2, states,

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

But moreover, the 6 radicalized Justices’ actions hearken back to the “bad old days” in which some states just thought that they could do any old thing they wanted to do, regardless of what other states wanted.

And, as it turned out, we fought a Civil War over exactly such a matter.

The “states rights” folks lost.

I refer, of course, to the matter of slavery.

Some folks still erroneously maintain that the war was fought over “states’ rights” exclusively, but conveniently “forget” (as in neglect mentioning) that it was at all about states rights to foster, permit, and enforce slavery.

Such an interpretation, of course, is a gross perversion of history, because even the most casual reading of history will demonstrate the matter was ALL about slavery to anyone who seeks to understand history.

But, the point being, is that, even BEYOND that matter — being the assertion that “states’ rights” should govern the matter of abortion instead of Federal law, that the 50 states should each one independently have the ability to usurp, or outdo each other state and have 50 different laws rather than a common, uniform Federal standard — there are other matters violated by the SCOTUS decision in Dobbs v. Jackson Women’s Health Organization. And one of them, is First Amendment freedom.

The Constitution’s First Amendment states,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

As it applies to this matter, the First Amendment protects Physicians who counsel their patients about the details of abortion (or any other health-related matter), and the HIPAA (Health Insurance Portability and Accountability Act of 1996) grants Patients rights to enjoy the right of privacy of Protected Health Information, and to be secure from the dissemination of other readily-identifiable characteristics that could be associated with the individual to identify them. That fundamental right of privacy, and by extension, is similarly protected by the Constitution’s Fourth Amendment guarantee “to be secure in their person, houses, papers, and effects,” which states,

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Patient privacy is a fundamentally sacrosanct cornerstone of healthcare.

Furthermore, We the People enjoy rights that are NOT listed in the Constitution, which, as it so happens, is similarly addressed in the Ninth Amendment, (which is an Unenumerated Rights amendment, and not merely a clause), which states,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Of course, the “icing on the cake” is the Constitution’s “No religious test” clause, which is found in Article VI, Clause 3, which states that,

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

At its very heart, the core, the very crux of the matter that resonates with anti-abortionists is that “the dogma lives loudly within” them.

That statement was made by California U.S. Senator Dianne Feinstein-D, who said at the 2017 confirmation hearing for then-SCOTUS nominee Amy Coney Barrett, that, “whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.” Video of that hearing may be viewed on C-SPAN.

The term “the dogma” is a not-so-oblique acknowledgement of the nominee’s long-term and still-ongoing participation in a radicalized secretive pseudo-ecumenical sect of the Catholic Church calling themselves “People of Praise.” And almost anyone familiar with the tenets of the Catholic Church, and now, the Protestant Evangelical community, knows that a principle tenet of them all is that they oppose maintaining freedom for women to choose how to manage their own bodies by attempting to outlaw abortion. In other words “anti-abortion” is a religious matter — not a civil, nor Constitutional one — and nothing else. And, they prove it daily by what they say and write.

A statement on the website of the radical fundamentalist Christian organization Operation Save America reads as follows:

“With the overturn of Roe v. Wade, Tennessee’s trigger ban on abortion is set to take effect during the week we will be in Nashville! We believe this is God’s providence [emphasis added] in the timing of our event as we will be able to effectively pressure city and state leaders to ensure full enforcement of the ban, and seek to help close up loopholes in the legislation. The abortion clinics are currently closed in the Nashville area, we are rejoicing for this, but there is still much work to be done! Please be in prayer for strategic guidance as to how to best utilize our time and efforts in Tennessee!”

“We believe this is God’s providence in the timing of our event as we will be able to effectively pressure city and state leaders to ensure full enforcement of the ban…” Clearly, that is a religiously-motivated statement making explicit the religious group’s intent to be activist in politics.

If that weren’t enough evidence to support the claim, the statement on their website’s front page reads, “We unashamedly take up the cause of preborn children in the name of Jesus Christ; and we employ only biblical principles.”

And, if one still needs more convincing, here’s a point-blank statement also found on their website that unmistakably states that they are a religious political activist group, pushing the tenets of their religious doctrine upon government:

“One of the most significant of these areas is that of civil government. Jesus is King of Kings. This is a political statement. He was crucified by earthly powers for confronting the corrupt civil authorities of his day. We must learn how to fight and win politically; how to get good men in office, how to run effective grassroots campaigns, and how to govern in a biblical and Constitutional manner. Corruption and injustice must be resisted, not pacified. We must train and mobilize the church to fight this battle effectively.”

A finer, but noteworthy point to acknowledge, is the sentence “He was crucified by earthly powers for confronting the corrupt civil authorities of his day,” which is ABSOLUTELY INCORRECT. Jesus of Nazareth was crucified by Roman governmental authorities AT THE REQUEST OF JEWISH RELIGIOUS LEADERS — rabbis of the Pharisee and Sadducee sects — NOT at the Roman government’s request. So, they even get that fundamental theological point wrong.

For those interested, the story may be found in the Bible’s New Testament book of the Gospel of John, chapter 18. In verse 24, Annas, the father-in-law of Caiaphas, who was the high priest that year, delivers Jesus of Nazareth to Caiaphas, the high priest, who in turn, takes him to the Roman civil authority, a low-level procurator named Pontius Pilate, as found in verse 28. Pontius Pilate acknowledges that the matter the rabbis bring before him is strictly a religious one and tells them to “Take him yourselves and judge him by your own law.” In verse 35, Pontius Pilate replies to Jesus of Nazareth saying, “Am I a Jew? Your own people and chief priests handed you over to me. What is it you have done?” After Jesus’ response, Pilate stated that “I find no basis for a charge against him. But it is your custom for me to release to you one prisoner at the time of the Passover. Do you want me to release ‘the king of the Jews’?” And the assembled crowd of religious leaders cry out saying, “No, not him! Give us Barabbas!”

Again, a finer point, but, the Operation Save America folks, who are Christian, can’t even get their own religious facts straight. And if they “can’t even get their own shit straight,” what possible hope is there for those who fall prey to their misguided notions and ideas?

In a story cross-published on Yahoo! News, Dr. Olgert Bardhi, MD, a Texas-based resident physician practicing internal medicine at the University of Texas Southwestern Medical Center in Dallas, said of the Lone Star state’s recent radical law SB 8 that, “It definitely does bother me. If a patient comes in, and you can’t provide them the care that you are supposed to for their well-being, maybe I shouldn’t practice here. The thought has crossed my mind.”

Dr. Bardhi refers to the law (SB 8) that the Texas State Legislature enacted, that, among other things, is purposely convoluted, so that it could be enacted BEFORE any prospective change in Roe v Wade –and– allows any non-interested Third Party to sue the physician for performing an abortion, in addition to criminalizing certain physician actions — a legal “first,” an certainly well outside the norm of accepted legal principle, or practice.

However, in order to activate the law, to use it, one would need access to the patient’s PHI (Protected Health Information), which is ILLEGAL unless one is directly involved in their care. So without PHI, it’d be difficult — if not impossible — to, with any degree of certainty, authentically, and unequivocally prove and demonstrate, that a patient had an abortion… or, was even pregnant.

Some have characterized physicians’ response to the Texas law, and others like it, as timid and fearful, precisely because of what is said to be confusion and uncertainty about the Texas state law, which also addresses physicians advising patients on abortion as an option.

In other words, it’s a “muzzle” law, intended to prevent speech from occurring.

In legal parlance, that’s called “Prior Restraint” and is commonly known as “censorship” when it’s done by a governmental entity.

And THAT is where the Texas law violates the First Amendment.

Secondarily, the HIPAA (a Federal law) ensures patient confidentiality, which means that any party or person NOT providing healthcare services to the patient are FORBIDDEN from accessing any patient information… unless the patient explicitly allows it.

By the way… if you’re interested in reading some analysis about the Texas state law, this article originally published September 2, 2021 on Vox (and cross published on MSN) is quite helpful.

In short, the GOP’s un-Constitutional house of cards is being built upon shifting sands as the tide is rising, and there’s a growing sinkhole very nearby.