Since the Supreme Court’s radical June 2022 ruling that overturned the landmark 1973 Roe v. Wade decision legalizing abortion in the U.S., successful battles have been waged in states across the country to restore reproductive rights. Since the Supreme Court decision, seven states have either defeated ballot measures to outlaw abortion, or enshrined the right in state Constitutions. Voters in up to 12 states will decide the fate of abortion rights in referendums expected to be on the ballot this November.
But in recent months, courts have been pushing in the opposite direction. On Dec. 11 last year, the Texas Supreme Court blocked a woman whose life was in danger from receiving a medically necessary abortion — forcing her to receive emergency reproductive health care in another state. On Jan. 5, the U.S. Supreme Court upheld on a temporary basis, the state of Idaho’s right to enforce its strict abortion ban, even in medical emergencies. That law, the “Defense of Life Act,” makes it a felony for anyone who performs or assists in an abortion, with penalties of imprisonment for a minimum of two years and a maximum of five years. The U.S. Supreme Court will also be hearing a case in coming months that could ultimately eliminate public access to the drug mifepristone, the most commonly used abortion pill.
Between The Lines’ Scott Harris spoke with Carrie Baker, Sylvia Dlugasch Bauman chair of American Studies and professor of the study of women and gender at Smith College, who is also a contributing editor at Ms. Magazine. Here she talks about recent post-Roe court rulings, that have further restricted reproductive rights, dangerously outlawing medically necessary abortions to save lives.
CARRIE BAKER: So the cases that you mentioned in Texas and Idaho both involve bans on abortion that have very, very narrow exceptions—only to save the life of the pregnant person.
And what we found is that those exceptions are basically meaningless because doctors are very hesitant to offer abortions when the penalty is years in jail, having their medical licenses taken away. Huge fines. And so often with the doctors do if they refer the patients out of state and if the patients are in a state of emergency, of course they can’t do that.
But in this case, the Biden administration issued a ruling or a regulation saying that a federal law called the Emergency Medical Treatment and Labor Act (EMTALA) that requires that federally-funded hospital emergency rooms provide care to people in emergency situations no matter what.
They said, that that requires that doctors provide emergency care, including abortion care, if necessary. And if that conflicts with a state law, the federal law preempts the state law. And that was the argument that the Biden administration made.
And there was a lawsuit filed by the Department of Justice in Idaho challenging the Idaho law, saying it was pre-empted by this federal law.
And that’s the case that you just mentioned that the Supreme Court last Friday accepted, agreed to hear the case and in the meantime allowed the Idaho law to remain in effect, endangering women’s lives.
Now, there’s another case in Texas that’s similar where the argument is, is that the Texas law is pre-empted by this federal law called EMTALA, and that, unfortunately, the lower court judges in Texas also ruled against the Biden administration and let the Texas law remain in effect.
So this issue is going to be at the Supreme Court. It’ll be argued in the spring and the decision will be down by June. But I think it’s indicative of the fact that anti-abortion legislators and judges and attorney generals really don’t care about the lives of the pregnant people who have these emergency situations, that they really only care about fetal life if—that’s really what it’s about at all—it’s hard to know, and they don’t care about the lives of the pregnant people.
SCOTT HARRIS: Yes. And it just seems, I think to any person, even someone who is steeped in anti-abortion belief system, it’s just inhumane. The horrible details I’ve heard in some of these lawsuits similar to Kate Cox, was to wait until (the pregnant person) was almost dead. And then only at that point would they provide the care she needed, the medically necessary care.
That’s outrageous. That’s crazy.
CARRIE BAKER: Yeah. I think that we are going to see people die because of these laws and, you know, and they don’t seem to care. Gov. Greg Abbott was determined to keep Kate Cox from getting medical care in her emergency situation. He called all the hospitals in town and threatened them if they, because a lower court judge had ruled that Kate Cox was entitled to get emergency care, then he appealed that immediately and called all the hospitals in town and said, you better not provide that care.
And so she eventually just left the state to get the care that she needed. But his sort of aggressive attempt to block medical care for a woman whose life is being threatened is just inhumane.
SCOTT HARRIS: And Professor Baker, I did want to ask you about miscarriages, because we’ve recently read about an Ohio woman who faced a felony charge after she miscarried at home and someone at the hospital, I believe, called law enforcement, where she was booked. I don’t think she was eventually charged on some technicality, but it’s another example of the kind of extremism we see in some of these states that, by and large, have super majorities of Republicans in their state legislatures and in the governor’s office.
CARRIE BAKER: Ohio was the state that passed a referendum last November to legalize abortion in the state. And that’s where this happened. This was a woman who was having a miscarriage. She went to the hospital. This was before the referendum—they wouldn’t treat her. She went home. She went back to the hospital, still in the middle of a miscarriage.
They refused to treat her and sent her back home. And then she had the miscarriage while she was at home. And then after the miscarriage went to the hospital. And that’s when they asked her, “Well, where is the fetus?” And they ended up charging her with abuse of a corpse. And the grand jury refused to indict her.
But again, it’s another example of where women are suffering because of these anti-abortion laws and, you know, both Kate Cox and this woman in Ohio are women that wanted to carry the pregnancies to term.
These were not women seeking abortion. These were women that had complications during their pregnancies and then were punished.
Listen to Scott Harris’ in-depth interview with Carrie Baker (17:16) and see more articles and opinion pieces in the Related Links section of this page.
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