The fate of emergency abortion care rests with Supreme Court
The fate of emergency abortion care rests with Supreme Court
Shanae Smith-Cunningham arrived at Memorial Regional Hospital on Dec. 21, 2022 — five days after her water broke, only halfway through her pregnancy. Despite her pleas for treatment and the risks to her health, staff at the Hollywood, Fla., hospital turned her away amid the state’s new abortion restrictions.
The decision to send Smith-Cunningham home put her life in peril, health officials later determined
Translation: We're fucked.
The Supreme Court is happy to ban elective abortions. It's not clear that they're willing to accept a ban of ones where the woman's life is in danger and the fetus isn't going to survive.
The conservative majority clearly hates women and will do the worst thing, which will be keeping it vague enough that doctors are afraid to provide care while not making it an outright ban just like several states have implemented an effective ban without making it explicit.
If the conservative justices cared about women's safety at all they would just recognize the right to pregnant women's bodily automomy. Then they could balance that with a viabke fetus and end up with the exact same outcome as Roe v Wade. But since they threw that in the trash openly, we aren't getting back there while they are on the bench.
It's not clear that they're willing to accept a ban of ones where the woman's life is in danger and the fetus isn't going to survive.
Even if they're hesitant to do that, in the states with any kind of abortion ban, the standard of evidence for any of the exceptions to apply and the delays in processing means that no doctor or patient can safely make that call before it's too late, effectively making the ban total.
This is an aside, but I absolutely loathe the term "elective abortion" I want all parents to become parents with forethought and intent. We've seen how disastrous it can be for children to grow up in un-loving households and it'd be wonderful if we could minimize how many future children have to suffer that.
Let all pregnancies be intentioned and wanted and realize that accidental pregnancies brought on by two people having some fun shouldn't force parenthood on a couple that don't desire it. Let pregnancy be elective and allow abortions to be a tool for people who don't want to transition their lives into parenthood.
(This isn't a criticism of the parent comment, but that term just pisses me off)
And it's all because we let those barriers stop us after the Dobbs decision. They're going to keep doing this shit until we drag their asses out into the street.
The issue here is mainly that two laws conflict: one, a complete abortion ban at the state level. Two, a federal law, EMTALA, that requires Emergency Departments assess and stabilize any patient that comes in. EMTALA has a few other requirements, like not asking about payment until after treatment and preventing unnecessary discharges or transfers. This is the law that makes it so that uninsured people go to the ED/ER when they are sick, since regular docs can deny you for not being able to pay.
The key part of EMTALA here is that assessing and stabilizing a patient. If someone comes in during a crisis and the only way to stabilize them is to terminate the pregnancy, that is at odds with Idaho's abortion ban. Basically, SCOTUS now has to say whether saving the mother is important enough to warrant terminating the pregnancy.
It’s bigger than that, it cracks EMTALA entirely if a state can overrule it by a policy.
From reading all of the coverage this morning, I think there is a chance that even this court might rule against Idaho here. Recall that one of the reasons why they overturned RvW is precisely because it wasn't legislation, and they felt the court ruling went too far in establishing practices that really should be established by statute.
But here is a Federal statute that says emergency rooms need to do whatever is necessary to stabilize patients when they show up. It doesn't mention abortion at all; it was written to make sure hospitals didn't turn patients who needed emergency care away because they didn't have insurance. But the statute is quite clear that these emergency rooms can't turn away the patients, yet that is exactly what is happening in Idaho, when a pregnant woman shows up with a critical condition that can only be resolved by ending a pregnancy in distress, where the fetus is extremely unlikely to have a positive outcome regardless of any action. The action is to save the mother's life (or her future fertility).
The Idaho lawyer seems to argue that now that abortion is fully illegal in Idaho, it is not an acceptable method of treatment in any case. But there have been several briefs from doctors that have been filed stating the opposite.
I am optimistic that they can pick off enough of the conservative majority who will give deference to the plain text in the Federal law, and give doctors there the power do do what they need to do to fix the situation. We'll see, though.
I don't believe that stated rationale from this court means much; they're making this kind of decision on ideological grounds, and coming up with a post hoc rationalization.