Overruling Roe v. Wade? Doctors, Nurses Face Criminal Convictions

On the surface, Roe v. Wade has nothing to do with employment. But it does. Prior to Roe v. Wade, many states criminalized abortions. Doctors who performed abortions (and assisting nurses) were convicted.

Consider State v. Brandenburg. In this 1948 case, a doctor and two “abettors”— nurses— performed an operation to remove a dead fetus from a woman’s womb.

The New Jersey statute read:

‘Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall:

‘a. Administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine or noxious thing; or

‘b. Use any instrument or means whatever—— shall be guilty of a high misdemeanor.'

The defendants argued “lawful justification.”

The New Jersey Supreme Court rejected the defense, stating: “We find it unnecessary to consider whether under our statute and the construction thereof given by our courts threatened impairment of a woman's health, as distinguished from the saving of her life, constitutes lawful justification.”

Unless an abortion was necessary to save a woman’s life, work performed to aid an abortion was a crime.

The court overlooked this evidence:

“Dr. Brandenburg's clear testimony, much of it reiterated, that he did not cause or procure a miscarriage; that at the time of his physical examination prior to the operation the embryo or unformed foetus was dead and in process of being discharged by natural causes; that the cervix was soft and open and that the dead embryo was protruding therefrom; that on the dilating of the cervix for examination bleeding became ‘very, very, very copious,’ such as to present a pressing emergency and to make a delay of even a few hours inadvisable; wherefore the witness proceeded at once to administer an anesthetic, widen the opening of the cervix and remove all the ‘secunda’ (secundinae?), including the ‘miserated’ foetus and the afterbirth; that the operation was an emergency and was necessary in order to save the patient's life.”
The New Jersey Supreme Court upheld Dr. Brandenburg's conviction.

Overruling Roe v. Wade would have enormous consequences for women—and also health care professionals who provide services to women.