Criminalizing the Doctor-Patient Relationship: How Abortion Aiding and Abetting Laws Violate a Physician’s First Amendment Rights

The Supreme Court dismantled the right to an abortion in Dobbs v. Jackson Women’s Health Organization by overturning Roe v. Wade. The holding opened the floodgates for state legislatures to pass total and near-total bans on abortion services across the United States. Included among the abortion bans passed are aiding and abetting laws that threaten to punish physicians criminally and civilly for advising pregnant individuals about abortion services. Aiding and abetting laws implicate the First Amendment because they restrict physicians from providing necessary counsel to patients about available healthcare options, both in-state and out-of-state. Denying this necessary counsel thus negatively impacts doctor-patient relationships. Before Dobbs, anti-abortion advocates utilized the First Amendment to slowly chip away at a woman’s access to abortion services. Nonetheless, these pre-Dobbs practices also provide physicians with a constitutional framework to challenge aiding and abetting laws implicating their speech rights. This Note argues the Supreme Court’s 2018 holding in National Institute of Family and Life Advocates v. Becerra requires federal courts to strike down abortion aiding and abetting laws as unconstitutional. In doing so, courts will protect the sanctity of the doctor-patient relationship and the right for physicians to be free of improper government influence when providing counsel about vital healthcare options.