We’re witnessing two equal and opposite abortion policy reactions this summer, and they both carry considerable momentum. On the one hand, public opinion continues to hate on—and organize against—the very unpopular and draconian efforts to ensure that reproductive care in the United States is ever more constricted, more dangerous, and more susceptible to criminal prosecution. On the other hand, state legislators and officials and courts across the country continue to undermine and imperil what we understand to be basic health care. They do so in complete and unrepentant understanding that these efforts are subversive and frequently invisible and also antidemocratic. Which means that the only remaining question is: In a footrace between the massive power of reproductive democracy and the complex machinery of reproductive oppression, who will win?
The single best piece of evidence that the GOP and Donald Trump are speed-walking away from their record on abortion is their deep-sixing of Project 2025. Once touted as the indisputable road map for whatever fresh hell was to follow the reversal of Roe, Project 2025 expressly promised that “the Dobbs decision is just the beginning” and included the right-there-in-black-and-white pledges to bring back the Comstock Act, withdraw approval for mifepristone, ramp up “surveillance,” undermine Title X, “install a pro-life task force,” and of course pursue a “family agenda.” This is what they are backpedaling away from, but no matter what Trump claims about the provenance of 2025 and who steps down to show that they’re not really going to do that, the confusion and the stepback don’t help the GOP here. The terrifying ideas in the proposal have stuck, and the people really hate them.
And while by and large the uncertainty and confusion around abortion policy is the GOP political gold standard, in this instance the razzle-dazzle promise to leave it to the states while backing away from your signature issue is proving not to be a winning strategy.
Witness the disgraceful chickening-out dance of Indiana Attorney General Todd Rokita, who squandered taxpayer money and his own credibility on a deranged effort to go after his state’s largest hospital system with the accusation that it had violated patient privacy laws when one of its doctors told a newspaper that a 10-year-old Ohio girl had traveled to Indiana for an abortion. That story made national headlines post-Dobbs. Rokita, who lost and lost and lost some more, finally managed to get a judge to accede to his request to dismiss his own lawsuit over the matter last week. State actors using state law to threaten doctors is a bad look, and a terrible strategy. Rokita pretending that the whole suit was a success when it failed was not leadership so much as cowardice.
Here is what we do know: Since Roe v. Wade was overturned in 2022, voters in six states have shown up in record numbers to protect abortion by way of constitutional amendments and ballot initiatives regarding abortion. Abortion rights now decide state Supreme Court races. And as my friend Joyce Vance writes this week, “As many as 11 states may have abortion-related measures on the ballot this year,” including Arizona, Colorado, Florida, Maryland, Missouri, Nevada, New York, and South Dakota. Which means that—as was the case in the 2022 midterms—abortion may well be the most powerful galvanizing force in state and local races, as it will be in the presidential contest. Kamala Harris and Tim Walz continue to utterly pummel the right on its abortion messaging, as Donald Trump and J.D. Vance continue to campaign on a generalized loathing of female cat enthusiasts and women’s bodies.
It’s thus tempting to suggest that women are organized and energized and inspired and that the thing is in the bag. Except there is an equally powerful force at work to suppress all this incredible energy, and to ignore it or downplay that is dangerous in the extreme. The fact is, across the country women are still being denied critical, at times lifesaving, health care. As Amanda Seitz at the Associated Press reports this week, “More than 100 pregnant women in medical distress who sought help from emergency rooms were turned away or negligently treated since 2022.” It’s true. The Supreme Court itself backed away (are we sensing a theme yet?) from one of the term’s big abortion cases, opting to kick the can down the road on a landmark challenge to President Biden’s post-Dobbs formal guidance on the Emergency Medical Treatment and Active Labor Act. As clarified by Biden, EMTALA now requires that emergency rooms provide “stabilizing treatment” for women in crisis and would preempt any state abortion ban in situations when an emergency termination is needed, even if that emergency is broader than the exceptions to the state abortion ban. Idaho disagreed. It felt that its state law trumped EMTALA. And in refusing to decide the case, the high court merely left open the physician confusion that lives in the gaps between the state of Idaho’s abortion ban and the obligations under federal law.
And in leaving that question unresolved, after snatching it out from the appeals courts prematurely, the Supreme Court has not only created yet more confusion; it has also left Idaho patients and physicians with no clue about what is currently permissible medical care.
“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Justice Ketanji Brown Jackson wrote in her dissent in the EMTALA case. As she emphasized, pregnant people, some of whom could suffer dramatic dangers to their health and fertility due to the lack of clarity, now remain “in the dark” about whether Idaho law or EMTALA controls, as do their treating physicians. “As of today,” she wrote, “the Court has not adopted Idaho’s farfetched theories—but it has not rejected them either.”
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Take seriously the play here, whether deployed by Rokita, Trump, or SCOTUS. Claim the law. Back away from the law. Leave confusion about the law at your feet. Move the goalposts early and often so as to disclaim your wins and fudge your intentions.
And to highlight what continues to take place in the gap between the law and … the law, this week two women who suffered horrific outcomes as a result of emergency medical care withheld for their ectopic pregnancies filed administrative complaints against their respective hospitals in Florida and Texas. The details are now familiar: In one case, a Florida woman was repeatedly denied treatment for an ectopic pregnancy that eventually ruptured, leaving her bleeding heavily and in blinding pain. Doctors eventually removed her right fallopian tube to save her life, lowering her chances of having a successful pregnancy in the future. In a second case, involving a Texas woman with an ectopic pregnancy, two different on-call OB-GYNs “acknowledged that her pregnancy could rupture but still denied her medical care.” She was eventually forced to undergo emergency surgery to remove most of her right fallopian tube and roughly three-fourths of her right ovary, according to the complaint.
All this is happening because state officials have refused to follow federal guidance and because state physicians—facing steep fines and, in, say, Texas, up to 99 years of prison time if convicted of performing an illegal abortion—are terrified. The same tactics that have been preventing physicians from providing care since Dobbs are still doing all the work to create confusion, alongside draconian penalties with ambiguous exceptions and vague promises that “the system” is really not denying care.
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And yet “the system” continues to deny care. “The system” is trying to keep abortion off the ballot in Arkansas. “The system” is monkeying with state election boards. “The system” has been all but locked down by a Supreme Court that really, really has no intention of reinstating abortion rights, even if Democrats were to pull off a trifecta in November. Which means that Kamala Harris winning the White House and Democrats taking the House and the Senate will amount to what we lawyers like to call a good start. “The system” will still work to restrict abortion. What will need to change at that point is almost too vast to contemplate, but it assuredly sweeps in the offices of state attorneys general, state Supreme Courts, hospital boards, and state legislatures, as well as all the warps and woofs of democracy itself.
There are two equal and opposite forces at work on the issue of abortion this summer: If democracy were functioning, we would have abortion rights. The greasy levers of modern American democracy, however, have been co-opted by captured courts and Leonard Leo and dark money and religious zealotry. Those will be taken back not solely by the results of a single election, but by decades of reforms and reimagining how this all got so out of whack in the first place. What we are learning this summer is that the future of women’s health and equality depends not just on what comes in November, but on building a democracy based on clarity, consistency, and majority rule.
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Publish date : 2024-08-14 08:57:00
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