NEWSLETTER April 2024
Women’s rage and resistance
Women’s rage is palpable in the U.S. right now. I’ve already written about the Republican gutting of abortion rights in many states, the pregnant women nearly dying from untreated miscarriages, the alarming maternal mortality ratio among Black women, the extremist takeover of the U.S. Supreme Court, and more. Yeah, we are mad as hell.
This rage is only growing, and with it, the resistance to the unceasing misogynistic, patriarchal attempts to bend women and girls to the right wing’s will, to control their bodies and sexuality in cruel and grotesque ways.
My own rage boiled over again last week. On April 24, 2024, the U.S. Supreme Court heard its latest abortion case in Moyle v. United States. I could hardly believe my ears as I listened to the live audio. The state of Idaho argued that its near-total ban on abortion overrides the Emergency Medical Treatment and Active Labor Act, or EMTALA, a law enacted in 1986 that requires hospitals that receive federal funding (that’s just about every hospital in the U.S.) to care for all patients with an emergency medical condition to ensure there is no deterioration of their health. Being in labor or suffering a miscarriage is considered an emergency under EMTALA.
Prior to EMTALA, private hospitals could turn away from their emergency rooms anyone facing a medical emergency who didn’t have health insurance or was unable to pay. These poor or unemployed patients were sent to publicly funded hospitals, a practice called “patient dumping.” The delay in getting care harmed patients’ health and made them twice as likely to die. EMTALA thankfully put an end to that barbaric practice.
Since the U.S. Supreme Court’s overturned the constitutional right to abortion in the 2022 Dobbs decision, 14 states have enacted strict abortion bans similar to Idaho's, causing untold harm and suffering. The Biden Administration has been pursuing various avenues to maintain some access to care and shield medical personnel from criminal penalties. Enforcing EMTALA against the states would at least protect pregnant persons who need emergency abortions, and those who care for them.
In Moyle, the federal government argued—correctly, under the U.S. Constitution’s Supremacy Clause—that EMTALA preempts Idaho’s abortion law, which only allows abortions in emergency situations “when it is necessary to prevent the death of the pregnant woman.” They argued that, under EMTALA, any pregnant person who shows up for emergency care is entitled to receive an abortion when that is the standard of care to stabilize her medical situation and preserve her health and life. In other words, she shouldn’t have to be at death’s door before she can receive the emergency care that EMTALA mandates. Sounds reasonable and humane, doesn't it?
No, replied Idaho. It's up to states to regulate the practice of medicine, and Idaho has chosen to ban abortion with few exceptions. As a result, a pregnant person in Idaho can't get an abortion unless a doctor makes a "good faith" judgment that she is likely to die. Under this interpretation, pregnant persons in Idaho would be the only class of persons no longer protected by EMTALA.
Supreme Court Justice Sonia Sotomayor sounded shocked as she sought further clarification. She asked Idaho’s lawyer whether, under the state’s restrictive abortion law, doctors could perform an abortion to prevent the loss of an organ (e.g., uterus, fallopian tubes, kidneys), even if the pregnant woman's condition wasn’t going to kill her. He replied that, in Idaho's view, abortions are NOT allowed in such cases, which he waved away as “hypothetical.” He also claimed the federal government was trying to use EMTALA to turn Idaho’s emergency rooms into “abortion enclaves, in violation of state law.” Oh, the horror!
The U.S. Solicitor General, Elizabeth Prelogar, countered that this was precisely why EMTALA was adopted—to guard against situations where the person might suffer grave health consequences if turned away by an emergency room. Prelogar pointed to the numerous medical conditions that require an abortion as the standard of care. For example, the premature rupture of the membranes (i.e. before a fetus is viable) puts pregnant persons at risk of an infection that can cascade into sepsis and hysterectomy if action is delayed. Because of Idaho’s abortion law, Prelogar noted, “women in Idaho today are not getting treatment. They are getting airlifted out of the state to Salt Lake City [Utah] and to neighboring states where there are health exceptions in their laws, because the doctors [in Idaho] are facing mandatory minimum two years in prison, loss of their license, criminal prosecution.” A pregnant woman is now helicoptered out of Idaho every two weeks to receive emergency care, something that rarely happened before Idaho’s abortion ban. Patient dumping is back.
It was gutting and infuriating to listen to the questions and comments from some of the far-right justices on the Court. Never mind that for a doctor to wait until a patient is on her death bed is unworkable, unethical and very dangerous, as we know from the experience of pregnant persons in Ireland, Texas, Oklahoma, and elsewhere. Pregnant women in Texas are now miscarrying in hospital bathrooms because emergency rooms don’t want to deal with them, while women in Oklahoma are told to wait in the parking lot until they “crash.” The far-right justices appeared ready to rule that pregnant women in abortion ban states no longer deserve emergency care.
There was, however, the small matter of the U.S. Constitution's Supremacy Clause, which says very clearly that federal law supersedes state law on the same matter. This should make Moyle very easy to decide. But during the hearing, the Court's far-right justices casted about, looking for a legal theory that would allow them to set aside the Supremacy Clause and rule in favor of Idaho: Can the federal government really attach conditions like EMTALA to its funding of hospitals? (Justice Kavanaugh) Can doctors’ right to refuse to perform an abortion, as guaranteed by federal law protecting religious freedom, be invoked to thwart EMTALA? (Justice Roberts) Wasn’t there something—anything!—they could use to deny pregnant persons emergency abortion care?
Justice Alito went further and asked the Solicitor General why the phrase “unborn child” figured in EMTALA, and whether it implied that a fetus had its own right to life. “Have you ever seen an abortion statute that uses the phrase ‘unborn child’?" he asked sarcastically. Prelogar replied that this provision wasn’t included in EMTALA to ban abortions, but rather to require hospitals to offer stabilizing care to preserve the fetus when the medical emergency also affected it, with the pregnant person free to accept or decline that care. Justice Alito persisted, wondering aloud why an “unborn child” couldn’t be considered an individual needing stabilization under EMTALA, so that an emergency abortion could never be performed. “Fetal personhood,” a goal of the anti-abortion movement, was obviously on Justice Alito’s mind. Hearing him parse out his vision of women as reproductive vessels, as lesser human beings, was truly disturbing. The Handmaid Tale’s vibe was strong.
Credit: Mariam Zuhaib/AP
Meanwhile, the Idaho Capital Sun reported this month that, since Dobbs, “Idaho has lost 55% of its high-risk obstetricians, according to the Idaho Physician Well-Being Action Collaborative. That has left Idaho with less than five [maternal-fetal medicine] specialists full-time.” As a result, “Three Idaho hospital labor and delivery departments recently closed. Idaho is seeing the expansion of ‘obstetric deserts,’ where ‘pregnant mothers may need to travel long distances either for prenatal care or for the delivery of their baby,’ said Idaho Hospital Association CEO Brian Whitlock.” And obstetricians are fleeing other abortion ban states, such as Texas, Oklahoma and Tennessee.
The rage felt by women and young people is propelling resistance at the personal and political levels. At the personal level, young people are taking firm measures to control their fertility. You might remember that, in 2016, after Donald Trump was elected president, young women flocked to clinics to have IUDs inserted. They were afraid that Republicans would overturn the Affordable Care Act (“Obamacare”), which mandates that all methods of contraception are available free of charge. IUDs are much more expensive up front than other contraceptive methods but, once in place, they are effective for many years, so young women were opting to avoid pregnancy over a longer-term period, free of charge. (Fortunately, Obamacare has not been repealed, despite multiple attempts by Congressional Republicans).
A recent study published in JAMA Health Forum found a significant uptick in permanent contraception (a.k.a. sterilization) in young adults (aged 18 to 30) in the U.S., beginning in mid-2022, when Dobbs was decided. The table below shows an abrupt increase in tubal ligations, potentially reflecting “fears of restricted access to abortion and/or contraception” and “a sense of urgency among individuals who were interested in permanent contraception” before Dobbs but had not yet acted. The table makes clear that the burden of contraception still falls heavily on women, with men not embracing vasectomy as they should, but the increase in vasectomies from previously very low levels is nevertheless notable. Some young men are now realizing that abortion bans affect them too.
Even more remarkable, perhaps, is the fact that the number of abortions overall in the U.S. has gone up since Dobbs. An estimated 1,026,690 abortions occurred in the formal health care system in 2023, a 10% increase over 2020 numbers. This shows that “people continue to seek and obtain abortion care despite the drastic reduction in abortion access in many states,” as noted by the Guttmacher Institute, a research organization. This loss of access “has been counterbalanced by monumental efforts on the part of clinics, abortion funds and logistical support organizations to help people in ban states access care through financial and practical support. States bordering ban states had particularly large increases.” Guttmacher further reports that, “these annual estimates are almost certainly an undercount, as they include only those abortions obtained within the formal U.S. health care system: at brick-and-mortar health facilities, such as clinics or doctor’s offices, and via telehealth and virtual providers.”
According to Guttmacher, about 160,000 pregnant persons traveled out of state in 2023 to obtain an abortion. This makes clear how determined pregnant persons are to control their lives. But why the increase in abortions overall? The highest number of abortions in the U.S. was recorded in 1990, at 1.6 million, and their number had declined steadily until they reached a low of 885,000 in 2017.
We don’t know for sure, although there are hints. When a reproductive health clinic or hospital department closes in a restrictive state, all of its services go away—not just its abortion services, but also its counseling on and provision of contraceptives. This probably results in more unwanted pregnancies and a greater need for abortion. The broader availability of telehealth services and abortion pills by mail has probably also contributed to making abortion more accessible. Abortions with pills have risen from 54% of all abortions in 2022 to at least 63% in 2024. That is probably also an undercount, since more pregnant persons are now buying pills online from sites outside the U.S. than ever before.
And frankly, in an environment where being pregnant has become more dangerous, maternity wards are closing and doctors are leaving the state, more people may have decided that they don’t want to take the chance. Indeed, U.S. fertility rates hit a historic low in 2023, at 1.6 children per woman.
At the political level, the fury and resistance have shown up in the voting booth, and anti-abortion politicians are scrambling. “Women are not without electoral or political power,” in the infamous words of Justice Alito in Dobbs. They are wielding that power. State-level referenda and ballot initiatives have so far all come out in favor of enshrining abortion rights or against curtailing them, even in conservative states such as Kansas, Montana, Kentucky or Ohio. More ballot initiatives are planned for the upcoming November 2024 elections, in Arizona and Florida most notably.
Many Republican politicians are reported to have scrubbed their websites of anti-abortion rhetoric, and many now claim their previous position on abortion was misunderstood. Some have even voted to reinstate abortion rights in their state, as three Republican Representatives just did in the Arizona State House, in a vote to repeal the 1864 near-total abortion ban the Arizona Supreme Court had revived in a recent, earthshaking decision. Donald Trump has even said that the Arizona Supreme Court “went too far,” although he can’t help himself and continues to brag about his role in overturning Roe. I doubt any of this will help Republicans in November.
In raging feminist solidarity,
FG