“The Dobbs framework is functionally unworkable, inherently standard-less and dangerous to pregnant people,” said Susan J. Frietsche of the Women’s Law Project, who filed the brief. “Dobbs must be overturned.”
On March 29, the Pennsylvania-based Women’s Law Project filed the first-ever amicus brief urging the U.S. Supreme Court to overturn Dobbs v. Jackson Women’s Health Organization, the case that reversed Roe v. Wade. The brief argued that Dobbs is “unworkable” because the decision has “subjected people in need of reproductive healthcare to immense suffering and grave danger” and has “ushered in an era of unprecedented legal and doctrinal chaos.”
The brief was filed in the case of Moyle v. United States, involving a Department of Justice (DOJ) challenge to Idaho’s “Defense of Life Act,” which prohibits abortions unless necessary to save the life of the mother. The DOJ argued that Idaho’s law violates the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicaid-funded hospitals to provide medically necessary stabilizing treatment to patients, including pregnancy termination, regardless of state laws restricting or banning abortion. The DOJ argued doctors violate federal law if they wait until a patient’s condition deteriorates to the point where they are about to die before doctors provide the necessary care to stabilize them.
“We have plenty of solid legal arguments for why pregnant people should not be deprived life-saving medical care at publicly funded hospitals in deference to an extremist fringe political agenda, but we must look at the bigger picture,” said Susan J. Frietsche, co-executive director of Women’s Law Project (WLP). “The fact that this case exists is evidence that the Dobbs framework is functionally unworkable, inherently standard-less and dangerous to pregnant people. Dobbs must be overturned.”
It is vitally important to challenge Dobbs at every turn and send a signal that it is not set in stone.
David Cohen, constitutional law professor
The brief describes some of the tragic consequences of Dobbs, including the stories of patients denied necessary and potentially life-saving obstetrical care because doctors feared liability under abortion bans. Some pregnant patients have been forced into risky, unnecessary surgery involving cutting into their abdomen wall solely to avoid the “appearance” of an abortion.
“The failure of the Dobbs framework to set clear parameters for necessary abortion care in emergency circumstances presently threatens the health and lives of pregnant patients,” according to the WLP brief.
Amanda Zurawski of Texas, for example, was 18 weeks pregnant when she suffered a preterm rupture of her membranes. Doctors told her they could not end her pregnancy until the fetal heart stopped or her life was endangered. Zurawski developed an infection in her uterus and nearly died from septic shock before she received treatment.
“How much medical risk, physical pain and psychological torment should a pregnant person be forced to suffer before being allowed standard emergency abortion care?” asked Christine Castro, senior staff attorney at Women’s Law Project. “There is no definitive answer to that question under Dobbs, yet lives depend on the answer.”
Another case cited in the brief was that of 31-year-old Dallas mother of two, Kate Cox, who after receiving a lethal fetal diagnosis, was told by her doctor that she needed an abortion in order to preserve her health and future fertility. However, the Texas abortion ban only allowed abortions if death was imminent. Cox filed a lawsuit asking a Texas court for clarification on whether she qualified under the law. A trial court granted her request, but Attorney General Ken Paxton appealed the case all the way to the Texas Supreme Court. Cox eventually fled the state of Texas to obtain an abortion. The Texas Supreme Court later ruled she did not qualify to receive an abortion under the law.
“These restrictions are—unsurprisingly, given the endless complexity of pregnancy—vague and dangerous in their application to actual pregnancies,” the WLP brief argued. “And courts are—unsurprisingly, given the deliberate pace of the justice system and the time-sensitivity of pregnancy emergencies—ill-suited to meaningfully address the disputes that arise under these restrictions.”
In Ohio, a 33-year-old woman Brittany Watts sought treatment at a hospital before suffering a miscarriage. While in excruciating pain, she had to wait for eight hours while a hospital ethics committee considered her case. They denied her care and sent her home instead of treating her. She later delivered a nonviable fetus at home, alone, in her bathroom, and then returned to the hospital where she was treated with suspicion rather than compassion. The hospital reported her to the police and Ohio prosecutors charged her with abuse of a corpse because she miscarried into her toilet. A grand jury later dismissed the charge.
Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? … Short of death, how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality?
In early pregnancy, abortion bans have endangered women’s lives by blocking treatment of ectopic or molar pregnancies, as in the cases of Jaci Statton in Oklahoma, Kelsie Norris-De La Cruz in Texas and Mayron Michelle Hollis in Tennessee.
Dobbs has also resulted in the denial of standard obstetrical and gynecological care. In Louisiana, for example, pregnant patients are being forced to go without prenatal care through their first trimesters because providers are avoiding scheduling patients during the early months of pregnancy to minimize their risk of having to provide miscarriage care that may be misconstrued as facilitating an illegal abortion.
“The failure to assure minimal protections to pregnant women’s health has devastated reproductive healthcare in states with abortion bans and demonstrates a race to the bottom that is sowing enormous chaos and discord,” according to the WLP brief. “Dobbs incorrectly presumed that there is a clear line between ‘elective’ and ‘therapeutic’ abortions, but ‘[p]regnancy does not create black and white realities. There is no clear line between miscarriage and abortion, therapeutic and elective abortion, and life-saving and not life-saving abortion.’”
The brief cited the dissenting opinion in Dobbs: “Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in? Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough? And short of death, how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality?”
Beyond the dangerous medical consequences caused by Dobbs, the WLP brief argued that the ruling has created legal chaos, “precipitating a fury of disorienting legal battles across the country. … The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current case, and between and among states. These conflicts are proliferating because of the Pandora’s box of constitutional questions Dobbs opened, implicating travel, federalism, extraterritorial jurisdiction, preemption and federal executive power.”
Ironically, the Dobbs Court overruled Roe and Casey because it concluded those cases were unworkable because they produced inconsistent and unpredictable results.
“Already, only two years after Dobbs, it is plain that the standard Dobbs adopted instead is creating far more confusion, injustice and chaos than Roe or Casey ever did,” argued the WLP brief. In fact, Dobbs is “wreaking ‘significant damage to the stability of the society governed by it.’”
“Part of the cruelty of Dobbs lies in the problem of assuming anti-abortion leadership would be willing and able to protect routine pregnancy care while failing to provide guidance or even guardrails on how to do so,” said Greer Donley, associate professor of law at the University of Pittsburgh Law School. “This failure reflects the anti-abortion rhetoric laced into the Dobbs framework, which perpetuates the demonstrably false anti-abortion talking point that there’s a bright line between so-called elective and emergency abortion care. There’s no such bright line in either medicine or law.”
Oral arguments in Moyle v. United States are scheduled for April 24.
“It is vitally important to challenge Dobbs at every turn and send a signal that it is not set in stone,” said David Cohen, a constitutional law professor at Drexel Kline School of Law and co-author of the brief. “We will not rest until this terrible decision is overturned.”
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