WASHINGTON (CN) — The Supreme Court’s recent review of emergency abortion access revealed the next chapter of the reproductive care fight, one that pits women’s health against the rights of a fetus.
“Certainly, you wouldn't dispute the fact that the hospital has a duty to the unborn child where the woman wants to have the pregnancy go to term,” Justice Samuel Alito, a George W. Bush appointee, asked the government during oral arguments April 24.
Alito was joined by Justice Neil Gorsuch, a Donald Trump appointee, in questioning how the Emergency Medical Treatment and Labor Act could force hospitals in conservative states to perform emergency abortions that would otherwise violate state law. Alito and Gorsuch noted that the statute includes protections for the “unborn child.”
“The term ‘emergency medical condition’ is defined to include a condition that places the health of the woman's unborn child in serious jeopardy,” Alito said. “So, in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty.”
Alito’s questions, seeming to suggest certain rights are due to fetuses, triggered alarm bells for reproductive care advocates who have been warning about the push for fetal personhood.
“What I think I saw was a very clear attempt to make fetal personhood the law of the land,” Karen Thompson, the director of litigation at Pregnancy Justice, said of Alito’s questions.
Pregnancy Justice is an advocacy group focused on the rights of pregnant people. The group submitted an amicus brief before the court warning that conservative states like Idaho are attempting to displace the rights of pregnant people in favor of fetuses.
“Once you start criminalizing people based on this idea that an embryo, that a blastocyst, that a fetus has more rights than the actual living breathing person … that somehow they have less rights than the pregnancy that they're carrying, we think that that is a clear violation of the 14th Amendment,” Thompson said. “We think that personhood is for people.”
The Supreme Court is not being asked to decide if fetuses have rights, but several justices could be signaling how they might rule on the issue should it come to the court. The term unborn child is frequently used by advocates for fetal personhood and court watchers have taken note when the justices use the same terminology.
“I think using that language puts the justices who use it firmly in a politically ideological position, they’re as much as signaling their bias in the outcome of the case,” said Lawrence Gostin, a Georgetown Law professor and director of the O’Neill Institute for National and Global Health Law.
U.S. Solicitor General Elizabeth Prelogar said Congress included an obligation to stabilize a fetus because lawmakers wanted to make sure that emergency rooms treated things that would put the fetus in distress but not affect the pregnant person.
“Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that,” Prelogar said. “But to suggest that in doing so Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization, I think that that is an erroneous reading of this statute.”
Alito said his question wasn’t meant to suggest that obligations to stabilize the fetus would mean the pregnant woman did not deserve stabilization. Prelogar said this, however, was Idaho’s position.
Thompson went as far as to say that was the theme of the argument session.
“In the tone of their voice and the tone of their questions, I think what really got surfaced was a deep disregard for pregnant people's health,” Thompson said.
Unlike the court’s review of the popular abortion drug mifepristone, the consequences for women’s health care were front and center at oral arguments.
“You have a pregnant woman who is early into her second tri-semester at 16 weeks, goes to the ER because she felt a gush of fluid leave her body,” Justice Sonia Sotomayor, a Barack Obama appointee, said. “She was diagnosed with PPROM. The doctors believe that a medical intervention to terminate her pregnancy is needed to reduce the real medical possibility of experiencing sepsis and uncontrolled hemorrhage from the broken sac.”
Sotomayor was describing the story of a woman in Florida who was turned away from an emergency room. The doctors said she was not yet sick enough to be eligible for emergency abortion care, which the state only provides in cases where the pregnant person’s life is threatened.
Conditions like the one described by Sotomayor are dangerous but often do not cross the line into life-threatening. Preterm amniotic sac rupture carries the risk of sepsis, limb amputations and uncontrollable bleeding requiring a hysterectomy. Pre-eclampsia could lead to complications like seizures and strokes.
Conservative states have put doctors in the position to refuse care to pregnant women with these conditions, forcing them to either wait until their condition is bad enough that death is on the horizon or travel to another state to receive medical care.
Justice Elena Kagan, a Barack Obama appointee, noted that just one Idaho hospital airlifted six pregnant women to neighboring states in the last few months. Before the Supreme Court allowed Idaho to deny emergency abortion care, the hospital — which has the greatest emergency room services in the state — only transferred one pregnant patient to a neighboring state.
Many fights over abortion access stem from the idea of giving women a choice over their reproductive health, but this case won’t impact elective abortions.
“The fact is the abortions that we are talking about are abortions for health care,” Thompson said. “They're even admitting it's a lifesaving thing. And so the fact that we're already seeing Idaho struggle with this I think tells us all we need to know about what's going to happen across the country if their point of view stands.”
The female justices seemed moved by these real-life accounts of denying emergency abortion care, but it was not clear their male counterparts felt the same.
“It should really, truly bother the conscience of the justices,” Gostin said. “But I would not be surprised to see something even more shocking, which is a complete gender split. The five men restricting emergency care for pregnant women with four women dissenting? Talk about a bad look for the Supreme Court.”
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