While notably and most commonly hailed for its expansion of abortion rights, Roe v. Wade was noteworthy in its deference to a doctor’s professional decision making. In contrast, the Dobbs leak reveals the current Court’s empowerment of states to develop abortion laws that comport to a state’s respective interests in fetal life. This decentralization is justified through the notion that the medical needs of Californians may be different from Minnesotans or Texans. However, the extent to which local governments adapt their healthcare priorities to the needs of their citizens is unclear. Since 2005, the US Congress has only had 27 physicians elected to office while data on local physician representation in local government is relatively difficult to ascertain. Without local, state, and federal representatives who understand the complexities of medical decision-making first-hand, the interests of patients may be undermined. Alternatively, having medical professionals participate in specific reforms may offer insight and perspective in an area that requires an advanced degree to practice.

Most recently, some state governments have aggressively moved to restrict and criminalize access to abortion while simultaneously banning gender-affirming care. These health policies may be in line with cultural and political prerogatives, but their draconian limitations fly in the face of a broad consensus of medical research. Left to evaluate these policies, the Court may need to rethink its approach to medical decision-making when state governments override scientifically supported treatment for short-term political gains.

While the Court deliberated over the landmark Roe v. Wade decision, Justice White dubbed the initial drafts as creating a “‘medical question doctrine’ … [holding]…doctors, rather than the Court had the final authority on certain medical-legal questions.” While mocked at the time, the encroachment of government into the doctor’s office may require looking to the guidance of Justice Blackmun in determining how much discretion physicians should have in dispensing treatment for their own patients.

In a brief review of literature, the term “medical question doctrine” has only appeared four times, and only in the decade following the Roe decision. However, the Court’s skepticism regarding the competency of physicians at interpreting the law should be juxtaposed with broad physician concern about the Court and other political branches making medical decisions. Even as Justice Blackmun sought to “vindicate[] the right of the physician to administer medical treatment according to his professional judgment,” the collision of state interests have threatened his goal.

The Court is right in some respect: the needs of patients in individual states differ across the country. But so do the needs of patients in individual counties, cities, and even wards. In seeking decentralization, the Court does not go far enough in deferring to local interests. Given the complexity of the human body, and the broad diversity of needs, treatments, and experimentation that comes with health policy, the Court should be cautious in allowing states to overregulate the medical industry.

This is not to say that state legislatures do not have a place in deciding the permissibility of experimental treatments, setting licensing standards, or any other sort of regulations. A concerning history of underregulated medical experimentation demonstrates the need to be prudent in developing a new theory of medical deference. The examples that demonstrate the dangers of a lack of oversight in the medical community color the United States’ history: the Tuskegee Experiments where black men became an unwilling control group in testing the effects of untreated syphilis; the Opioid Epidemic where millions across America were overprescribed painkillers leading to addiction and death; and the “[systematic undertreatment] for pain” amongst Black Americans.

However, when these policies are challenged, the Court should keep a watchful eye for state policies whose purported interest lacks the backing of the scientific community. In developing a medical question doctrine, the Court should look to the breadth of science on the policy, the good faith justification by the physician, the interest convergence of industry in pushing the treatment, the effectiveness of the treatment in past experimentation, and the interests of the state in regulating the treatment. While this list is incomplete, it offers a means for doctors to justify and defend themselves against overbroad policies that constrain good faith efforts to improve the health outcomes of patients.