Dobbs Opened Up an Attack on Doctors

Americans are rightly shocked by the news of a 10-year-old rape victim who had to cross state lines to lawfully terminate her pregnancy. The girl’s home state of Ohio outlawed abortion in the wake of Dobbs v. Jackson Women’s Health Organization, the recent Supreme Court decision overturning Roe v. Wade (1973). So the girl’s doctors referred her out of state for the medical procedure that saved her from grievous physical injury and possible death. Making matters worse, the law-abiding Indiana doctor who performed the abortion had her judgment questioned by her state’s grandstanding attorney general, who raised the specter of legal action against the doctor.

The whole sorry affair should remind us of one key reason why Roe was decided in the first place: to protect doctors.

It is a sad fact that some doctors will avoid providing essential medical care if the treatment in question is politically controversial. These doctors understandably fear that an overzealous prosecutor might use a vague law against them, just as Indiana’s attorney general threatened to do here.

Doctors who deal in certain types of pharmaceuticals run the same risks. In fact, just three days after Dobbs, the Supreme Court actually enhanced the legal protections for doctors who prescribe opioids. In an ironic twist, the Court did so while effectively reviving a pre-Roe case that protected the medical privacy rights of abortion providers.

The opioid case is Ruan v. United States. Xiulu Ruan is a licensed practitioner authorized to prescribe opioid painkillers. Like many other doctors, he faced a cruel dilemma: Write too many prescriptions, and prosecutors might come knocking. To avoid unwelcome prosecutorial attention, doctors often ignore their own best medical judgment and leave suffering patients untreated. But Ruan wrote the prescriptions.

The Supreme Court ruled 9–0 in his favor but was split on the rationale. Writing for six members of the Court, Justice Stephen Breyer set up a framework for doctors and prosecutors to follow in these sorts of cases. First, doctors must show they are qualified to prescribe the drugs in question. Once they do that, the federal courts must presume that the doctors acted lawfully and responsibly. It is then the government