Some Faint and Likely Temporary Relief on Abortion Rights

Two years after the Supreme Court abolished the constitutional right to abortion, in Dobbs v. Jackson Women’s Health Organization, the Justices have issued a pair of decisions that may appear faintly reassuring amid a bleak landscape for reproductive rights in the U.S. In Food and Drug Administration v. Alliance for Hippocratic Medicine, issued earlier this

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Two years after the Supreme Court abolished the constitutional right to abortion, in Dobbs v. Jackson Women’s Health Organization, the Justices have issued a pair of decisions that may appear faintly reassuring amid a bleak landscape for reproductive rights in the U.S. In Food and Drug Administration v. Alliance for Hippocratic Medicine, issued earlier this month, the Court unanimously rejected a challenge from a group of anti-abortion physicians to efforts made by the F.D.A. to ease access to mifepristone, the drug used in medication abortion. (The agency had in recent years permitted mifepristone to be administered later in pregnancy and ended the in-person requirement for prescribing the drug.) The A.H.M.’s complaint rested primarily on what Brett Kavanaugh, writing for the Court, politely called “complicated causation theories”: the organization argued—without substantial evidence—that the F.D.A.’s changes made medication abortion less safe, which increased the odds of patients having complications, which made it more likely that they might need emergency care, which heightened the chance that a doctor who is opposed to abortion on moral grounds might have to provide that care. None of these doctors had actually faced this moral conundrum, and nothing in this daisy chain of contingencies, the Court ruled, amounted to standing under Article III of the Constitution.

The other abortion-related case on the Court’s lineup, Moyle v. United States, centered on the conflict between Idaho state law, which prohibits abortion except to avert the death of the pregnant person, and the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires that hospitals receiving Medicaid funding provide stabilizing emergency care to any patient who is at the broader risk of “serious impairment to bodily functions.” “What falls in the gap between” the two laws, Elena Kagan wrote, “are cases in which continuing a pregnancy does not put a woman’s life in danger, but still places her at risk of grave health consequences, including loss of fertility.” Idaho disagreed, arguing in a brief that EMTALA would turn emergency rooms into “federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand.”

The case encapsulated a dilemma for doctors who work under draconian post-Dobbs laws. The twenty-two states that have restricted or banned abortion since Dobbs have codified exceptions to preserve the life of the pregnant person, but six states have not included exceptions to preserve the health of the patient: Arkansas, Idaho, Mississippi, Oklahoma, South Dakota, and Texas. In these states especially, abortion laws have often created a sadistic ambiguity about when emergency abortions are permissible—does early preeclampsia, for example, or a placental abruption, or a preterm rupture of the amniotic sac (a condition known as PPROM) put the patient’s life sufficiently in peril? A high or near-certain risk of infection, hysterectomy, massive hemorrhage, or multiple-organ failure may not be enough to keep a physician within the law if death does not seem imminent. (As a maternal-fetal-medicine specialist told me in 2src22, “These laws presume a certainty that doesn’t exist in medicine. How ‘life-threatening’ the situation has to be—I don’t know what that means.”)

The easiest way to summarize the 6–3 outcome in Moyle is that the Court is temporarily allowing hospitals in Idaho to provide emergency abortions, but reserving judgment on whether the state must permanently allow them to do so. The path to the decision—which, the day before it was formally issued, was briefly posted to the Court’s Web site—was convoluted. A district court had entered a preliminary injunction of Idaho’s law, and the Ninth Circuit Court of Appeals declined to stay the injunction. The Supreme Court could have also declined, but instead granted a writ of certiorari and permitted the law to take effect while it considered the case. Then, in a one-line, per-curiam opinion, the Court lifted the stay without deciding on the merits, calling the writ “improvidently granted.”

The Justices in the majority differ on how they define improvidence. For the three liberal Justices, the writ was wrongheaded because federal law plainly compels emergency abortion care. But Amy Coney Barrett, in a concurrence joined by Brett Kavanaugh and John Roberts, argued for reversal because both Idaho and the federal government had made clarifications to their positions since the Court took on the case; Idaho had slightly softened the language of the original statute, for example, and the U.S. had spelled out conscience exceptions for doctors under EMTALA. The Justices, Barrett wrote, “should not jump ahead of the lower courts, particularly on a matter of such importance.” (Now she tells us!) Ketanji Brown Jackson, in a part concurrence, part dissent, wrote, “As a practical matter, the Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho.” Jackson added, “This months-long catastrophe was completely unnecessary.”

Opining for the minority, Samuel Alito held that federal law does not require abortion care under any circumstances; his position leaned heavily on the fact that EMTALA’s text includes the phrase “unborn child.” Alito fixated on this phrase in his dissent, just as he and Neil Gorsuch did during oral arguments; he sees it as a gotcha, or a Freudian slip, and his perseveration hints strongly at Alito’s sympathies toward fetal personhood. In Alito’s view, because EMTALA makes provisions for prenatal care, a physician must somehow strike a balance between the competing health interests of, say, a woman in her twentieth week of pregnancy who develops preeclampsia—putting her at risk for strokes, kidney and other major-organ failure, and death—and her almost certainly doomed fetus. “It goes without saying that aborting an ‘unborn child’ does not protect it from jeopardy,” Alito writes. (He preserves the scare quotes, as if to say, “Those are the federal government’s words, not mine.”)

It is somewhat good news that Alito was joined in his opinion only by Gorsuch and Clarence Thomas, and not the other three conservative Justices. But, as Jackson pointed out, the decision in Moyle does nothing to help patients in other states with harsh yet vague abortion restrictions—Texas, for instance, where the Fifth Circuit ruled in January that EMTALA does not compel hospitals to provide emergency abortions in contravention of state law. Jackson did not conceal her frustration that the Idaho case, having been paused on the Court’s docket for months and exhaustively debated in its chambers, will now hold for later—perhaps until after a Presidential race in which abortion rights have proved to be a winning issue for the other team. She wrote, “Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time?” If Jackson’s hypothesis is correct, the Texas EMTALA case, with its close similarities to Moyle, could be up next. She went on, “Today’s decision is not a victory for pregnant patients in Idaho. It is delay. . . . This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

In the oral arguments in Moyle, Alito asked the Solicitor General, Elizabeth Prelogar, if she would “dispute the fact that the hospital has a duty to the unborn child where the woman wants to have the pregnancy go to term.” In addition to reinforcing Alito’s affinities for fetal personhood, the passage is intriguing for its assumptions about what an abortion patient might “want.” Amanda Zurawski, who was the lead plaintiff in a recent failed challenge to Texas’s abortion laws, and the central figure in a devastating campaign ad for President Biden, suffered PPROM at seventeen weeks, but she was refused an abortion because a fetal ultrasound still detected cardiac activity. Within a few days, Zurawski went into septic shock and delivered a stillborn girl. “Scarring from the infection was so severe that she required surgical reconstruction of her uterus and lost the use of one of her fallopian tubes,” Jane Bland of the Texas Supreme Court wrote, in an opinion that nonetheless lifted an injunction against the state’s Human Life Protection Act. Any physician who would hesitate to provide abortion care under such extreme circumstances, Bland wrote in the decision, would be “simply wrong.” It seems that doctors who fear prosecution for performing abortions—they face the possibility of six-figure fines, imprisonment, and the loss of their licenses and livelihoods if they guess wrong about what the law allows—merely need to go back and read Texas’s statute more closely.

It is safe to say that Zurawski, who named her baby Willow, wanted “to have the pregnancy go to term.” Did she also “want” an abortion—or did she need one? For Bland, the answer is self-evident. For others, the question is falsely premised. In June, Christina Francis, the C.E.O. of the American Association of Pro-Life Obstetricians and Gynecologists, told a Senate committee that “abortion does not need to be legal in order to ensure that we can provide our patients with excellent health care.” Francis has advocated for pregnant patients in jeopardy to be induced and “simply deliver the child,” which, she has said, is “much faster than abortion and improves outcomes for the mother.” (Simple and fast—now that’s what I call childbirth.)

Francis’s medical practice tacitly adheres to a Catholic doctrine known as the principle of double effect: that doing a bad thing (such as inducing childbirth before or near viability) is morally permissible so long as it is the undesired consequence of doing a good thing (preserving a patient’s health). The doctrine may be familiar to the seven Justices—including all six in the conservative majority—who were raised in the Catholic Church. They may have also heard the story of the Italian pediatrician Gianna Beretta Molla, the patron saint of unborn children. When Molla was pregnant with her fourth child, she was diagnosed with a life-threatening uterine tumor and offered a hysterectomy—an acceptable treatment by the logic of double effect. But Molla chose to bring her pregnancy to term, and, a week after delivering a healthy girl, died of sepsis, leaving her children motherless. Pope John Paul II paid tribute to Molla in a homily delivered upon her canonization, in 2srcsrc4: “Through the example of Gianna Beretta Molla, may our age rediscover the pure, chaste, and fruitful beauty of conjugal love.” That moment of rediscovery may be upon us. ♦

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