The same Supreme Court that overturned Roe v. Wade will now be asked to answer the question: Are pregnant women full people under the law?
This story originally appeared on Jill.substack.com, a newsletter from journalist, lawyer and author Jill Filipovic.
Feminists often say that abortion bans make women second-class citizens. And it’s true: Abortion bans strip from pregnant women the basic right to bodily autonomy, which other people enjoy. This is true for any abortion ban. But this concept—that banning abortion puts pregnant women in a different class from “regular” people—is particularly apparent in laws that do not allow for a full range of emergency care to preserve a pregnant woman’s health.
These laws quite literally violate general duty-of-care requirements for emergency room workers, and do so only for pregnant women as a class. The anti-abortion movement writes them, promotes them, passes them, defends them, and fights for them in court. And the U.S. Supreme Court is set to hear one of them, and decide: Can the law say that pregnant women are not entitled to the same protections as everyone else?
The case comes out of Idaho, which bans abortions almost entirely. The Idaho ban has an exception for abortions which save a woman’s life, but not those that are necessary to preserve her health. The Biden administration has issued a common-sense rule which basically says that, regardless of state law, emergency rooms and other medical facilities have to comply with federal law when it comes to providing care. That means they still have to afford pregnant women the same duty of care that they afford any patient—which is to take steps necessary to stabilize the patient, preserve their health, and save their life.
In no other case do emergency room physicians have to wait, as a matter of law, until a patient’s condition deteriorates to the point where they are going to die before they can provide necessary care to stabilize them. But if the patient is pregnant, and if what she needs to stabilize her is an end to the pregnancy, ER doctors in states like Idaho may face prison time for doing their jobs.
The Biden administration is trying to clarify that the federal law saying doctors have to keep patients not just alive but stable—that doctors have to help patients not just avoid death, but avoid major and potentially irreversible harm—applies fully to pregnant women, too.
A federal district court agreed. From the New York Times:
“If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges and at least two years in prison,” Judge Winmill wrote. “Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury or even death.”
“And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication,” the judge went on. “All because Idaho law prohibited the physician from performing the abortion.”
The “pro-life” movement, though, sees it differently. They argue that the “unborn child” is a patient, too. In states like Idaho, if a pregnancy threatens a woman’s health, well, that isn’t a good enough reason for the pregnancy to end. These laws put fetal life ahead of maternal life, and render women little more than fetus-sustaining objects.
Women are put through unbelievable tortures in the name of being ‘pro-life.’
If a child came into the ER and was having kidney failure, no hospital would require that his mother donate one of her kidneys to him. Hospitals don’t require that a parent donate blood to their child. They don’t require that a parent who dies in a tragic accident donate their organs to a surviving but in-need child, or to anyone at all. It is only pregnant woman who are consigned to a special, sub-standard category of person not entitled to a standard level of health-preserving care.
Some other abortion bans have language that would allow doctors who perform medically necessary abortions and are criminally prosecuted to defend themselves by arguing that the abortion was necessary to preserve a major bodily function. These laws are also a joke—in practice, few health providers are going to risk going to prison, and so women are put through unbelievable tortures in the name of being “pro-life.”
But the Idaho ban is even more extreme insofar as it does away with any pretense of caring about a woman’s health or the preservation of her body parts and major bodily functions—her fertility, her limbs, her organs, her brain health. A doctor can only act, under Idaho law, if a woman is going to die.
Of course, this is not how healthcare works in the real world. There are no guarantees in medicine, and even odds can be difficult to calculate. Bodies are different, and pregnancy is a notoriously perilous and unstable condition. A pregnant woman who is in stable condition one minute can take a major turn the next; sepsis infections can take over swiftly, at which point an abortion might be too late. There is simply not a clear line between “preserving health” and “preventing death.”
And many women do need abortions to preserve their health, whether it’s to avoid a hysterectomy and an end to their fertility, or a massive infection that shortens their lives, or catastrophic hemorrhaging that damages their organs and may put them on a ventilator, or one of the many pregnancy complications that can cause severe organ damage and organ failure and brain injury.
Pregnancy is not the only complex health condition. There are so many ways the human body becomes ill, deteriorates, and breaks down. That’s why federal law governing emergency room treatment in hospitals that receive federal dollars calls in a general principle, rather than trying to adjudicate each possible scenario: Doctors need to treat patients, regardless of whether those patients can pay, and they need to not just keep patients from dying, but are obligated to do their best to get patients back into a stable and sound condition.
A pregnant woman who is in stable condition one minute can take a major turn the next; sepsis infections can take over swiftly, at which point an abortion might be too late.
I’m far from an expert here, but my guess is that if doctors generally did to non-pregnant patients what anti-abortion legislators are asking them to do to pregnant ones—waited until a those sick patients’ health deteriorated so badly that they nearly died, and perhaps lost a limb or an organ or saw their lives shortened because of the waiting—they would be in violation of federal law, hospital policy, their professional oath, and basic human decency. If a patient did die because a doctor was waiting for them to be on death’s door before offering treatment but the doctor got the calculus wrong, that would be indefensible.
Pregnant women are the exception, in a league of their own.
There is no other way to understand this, other than as an attempt to make pregnant women a special class under the law, with fewer rights and fewer protections. Because if pregnant women are people with a full range of rights and privileges, then under federal law, they should be treated with the same care at hospitals as anyone else. On the other hand, if pregnant women are primarily understood life support machines for fetuses, then they will be treated as such.
The same Supreme Court that overturned Roe v. Wade will now be asked to answer the question: Are pregnant women full people under the law? I don’t like to make predictions, and I won’t make one here. But given that this Court has already stripped women of our fundamental bodily autonomy, I don’t like where this is headed.
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