The original Roe v Wade decision was founded on the justices discerning a right to privacy lurking in the Constitution. This has been criticized on occasion, by Justice Ginsberg among others, as a weak foundation for an important right, but there it is.
The most recent attack on abortion rights at the federal level is the “Partial-Birth Abortion Ban Act.” This law itself is under attack at the moment. As part of its defense, the Justice Department originally sought to subpoena abortion records (though it has now withdrawn this “in the interest of a prompt completion of the trial”); these records would be used to make the case that late-term abortions are never medically necessary, hence a ban could be upheld. If the law stands, doctors who perform late-term abortions will be prosecuted, and will be required to prove medical necessity. As the NY Times put it
But once this question is resolved, the next round of subpoenas will have a different purpose. It won’t be to determine whether partial-birth abortion is ever necessary. It will be to determine whether each partial-birth abortion was necessary.
If the ban is upheld, any doctor found to have performed the procedure will be subject to a two-year prison term unless he or she can prove that the procedure was “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.” To settle that question, the court will need details about the patient.
What’s interesting is the reversal in legal thinking: Once upon a time, the right to an abortion was based on the right to privacy; now, the Justice Department’s position is something more like “if you want that abortion, you forfeit your right to privacy.