Jurisprudence
And the Supreme Court may only fuel it.
Photo illustration by Slate. Photos by Natalia Kuzina/iStock/Getty Images Plus and Roberto Schmidt/AFP via Getty Images.
Should the very state of being pregnant place women in a subclass of citizen, vulnerable to criminal prosecution or civil penalties for behavior that would be perfectly legal from a nonpregnant person? Judging by their proposed legislation and various legal antics, the anti-abortion movement says: Yes. Pregnant women simply should not have the same rights as any other U.S. citizen.
Take, for example, efforts to criminalize the crossing of state lines for abortion. There is a very, very long tradition in the U.S. of allowing people to travel out of state to access medical care, and it’s so deeply ingrained we barely think about it. Consider, for example, the businesswoman who lives in New Jersey but works in New York City and so goes to the dentist in midtown Manhattan, or the dad who lives on the Kansas side of Kansas City but takes his sick kid to a specialist at a hospital on the Missouri side. A great many Americans don’t think twice about crossing state lines for health care.
Abortion opponents are trying to change that for one group of people: pregnant women.
Conservative legal groups are already drafting model legislation to prevent pregnant women from traveling for abortions by legally penalizing anyone who helps them, a strategy used by the state of Texas in one of its abortion bans, which allows anyone in the U.S. to sue those who assist women with abortions—and be rewarded with a bounty paid by the state.
The architect of that Texas abortion bounty law was Jonathan Mitchell, an anti-abortion activist (and Donald Trump lawyer) who is currently representing a Texas man in his quest to probe into his ex-girlfriend’s abortion, which she allegedly sought outside of their home state. Mitchell filed a petition to learn the details of this woman’s abortion for, he says, a potential future lawsuit. But to be clear, the woman in question did absolutely nothing illegal: Traveling out of state for health care, including abortion, is not against the law in Texas or anywhere else. It’s just that Mitchell and other abortion opponents would like to change that—and are apparently happy to represent controlling (and, in another case Mitchell took on, allegedly abusive) men to do it.
They’re also happy to reclassify pregnant women as a kind of sub-citizen who, by simple virtue of their pregnancy status, are not entitled to the same legal freedoms and protections as anyone else. A Texas woman who goes to a Colorado abortion clinic is being treated differently from any nonpregnant person who travels for a medical procedure—and you can bet that this categorization of pregnant people as suspect, should they travel out of state, will lead to all sorts of investigations and abuses.
Take this hypothetical: Say the anti-abortion movement succeeds and makes it a crime to travel out of state for an abortion. Say a woman in Idaho (where abortion laws are so extreme, they have no exceptions for saving a woman’s health) travels to Washington state, where abortion is legal, and gets her hands on abortion-inducing drugs. Say she’s not pregnant. Say she takes the drugs anyway. Has she committed a crime? Or, to use a more likely legal model, say Texas makes it a crime to help a woman travel for an abortion, and a Texas woman goes to Colorado, gets abortion-inducing drugs, and takes them, despite not being pregnant. Is the friend who helped buy her plane ticket still liable? Presumably not: No pregnancy means no abortion, which means no violation of an abortion ban. But if the two women in these scenarios had been pregnant, the legal calculus would be entirely different.
Or to use a perhaps more realistic scenario: Mifepristone, an abortion-inducing drug, is also commonly used to treat Cushing’s syndrome, and researchers say it has tremendous potential to treat other illnesses, too, from various cancers to PTSD. Under an anti-abortion legal scheme, if a Texas woman with Cushing’s syndrome travels out of state, gets mifepristone, and takes it, she (or those who help her) would face potential legal consequences only if she’s pregnant. It’s her status as a pregnant woman—not the act of traveling or even taking an abortion-inducing drug—that is the problem. And generally, the law frowns on making a person’s status—rather than their actions—the basis of a crime or a lawsuit. That’s part of treating all people equally under the law, and offering all people the equal protection of it.
Preventing pregnant women from crossing into a state for a legal medical procedure isn’t the only way in which the anti-abortion movement is attempting to curtail basic rights and protections for anyone carrying a pregnancy. Earlier this year, abortion opponents argued before the Supreme Court that pregnant patients should be treated differently than nonpregnant ones in cases of serious medical emergencies—that doctors and other health workers should be permitted to give pregnant women a substandard level of care, and to essentially refuse to appropriately stabilize them. If a woman comes in and is very ill, she’s entitled to one standard of care; if she comes in and is very ill and pregnant, that standard of care is lower in states that criminalize abortion.
At issue in the Supreme Court case, a ruling in which is expected early this summer, is the Emergency Medical Treatment and Labor Act (EMTALA), a law initially written to prevent hospitals from dumping seriously ill patients who couldn’t pay. Pregnant women in particular were often coming into hospitals in labor, only to be refused care; there were stories of women birthing in hallways and cars. EMTALA says that any hospital receiving federal Medicaid dollars (which is most hospitals, both public and private) must provide lifesaving care to anyone who walks through their doors, regardless of their ability to pay. That means that hospitals have an obligation to stabilize ill patients. (If they don’t have the ability to appropriately stabilize a patient, they must move the patient to a facility that does.)
This should all be very uncontroversial. The problem is that the Biden administration issued a clarification that specifically states that this law applies to pregnant women, too—and specifically to pregnant women who are in medical distress and for whom the appropriate course of stabilizing care is an abortion.
Abortion opponents in Idaho balked. In Idaho, if a pregnant woman is in serious medical distress and needs an abortion to, say, prevent her from going septic because of an incomplete miscarriage or to prevent serious complications that will result in her losing her uterus, doctors cannot provide that care unless the woman is about to die. Even then, they may face prosecution, and will have to prove to a potentially hostile jury that the woman’s life was at risk. This is true even if the woman’s pregnancy is doomed, and there is no chance that her fetus will survive. If any nonpregnant person comes into an Idaho hospital and is at risk of a systemic septic infection or losing an organ, everyone agrees the law is clear: ER doctors and other health workers have to stabilize or transfer them and would not face legal consequences for doing so.
The treatment of pregnant women primarily as vessels for a fetus, and the stripping of otherwise applicable rights and protections from women because of their pregnant status, underlies the entire ideology of the anti-abortion movement. As many others have pointed out, there are no other circumstances under which we force people to donate use of their organs to another, no matter how dire the need; even corpses need to have consented while alive before their organs can go to anyone else. A father with two perfectly healthy kidneys is under no legal obligation to donate one even to his own very ill child; he’s not even legally obligated to donate blood, or to, say, cut off his hair to make a realistic wig for his cancer-stricken kid. Fathers are not legally obligated to so much as hold or even meet their own babies, let alone risk their lives or give over their organs and bodily functions to them for 10 months.
No one parent is required by law to walk right up to the edge of death in order to save their child’s life, and no one is required to walk right up to the edge of death in the service of someone who cannot live.
No one, that is, except a pregnant woman in an abortion-hostile state.
Abortion
Joe Biden
Pregnancy
Supreme Court
Texas
Idaho
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