Do doctors have an obligation under federal law to keep their patients alive, even if their patients happen to be pregnant women? Do doctors have an obligation to prevent maiming – or irreversible organ damage, or other kinds of serious bodily harm – and if so, does that obligation extend even to women? Do women have a right to access medically necessary care even if they are pregnant? No, according to the US fifth circuit court.
That’s the conclusion reached by a three-judge panel recently in Texas v Becerra, a case in which Texas sued the Biden administration over guidance that directed all hospitals receiving federal funds to perform “necessary stabilizing treatment” on patients – including abortions on pregnant patients undergoing medical emergencies.
The federal guidance, the Biden administration argued, trumped state laws under the supremacy clause. But Texas said that the guidance conflicted with its own total abortion ban, which provides only a vague and effectively inaccessible medical exemption in cases where the life (not merely the health) of the pregnant woman is in danger. The appellate court sided with Texas, freeing the state to force women to the brink of death – if not past it – before they are allowed to access medically necessary abortion treatment. It effectively greenlights the state to enforce injury and illness on women whom it deems insufficiently endangered.
The matter is not abstract: those whose pregnancies are causing them serious physical harm are already being forced to endure pain and danger – or to flee their states – due to abortion bans. The fifth circuit ruling comes just weeks after Kate Cox, a Texas woman with a health-endangering and medically futile pregnancy, was forced to flee the state after the Texas department of justice intervened to prevent her from accessing care.
The ruling means that Texas, and other anti-abortion states, have been endowed with a morbid power over the lives and health of pregnant women. They can force them to endure ruptures of the uterus, organ prolapse, massive blood loss and sepsis. They can force them to lose their fertility. And even in cases where – through luck and grace – none of this comes to pass, they can force these women to wait, in fear and humiliation, for what fate has in store for them.
Pregnant women in these states can thereby be robbed of their health, of their self-determination, of their dignity and their peace of mind and of quite a lot of money in medical costs – all without recourse or due process to contest the fate that the law has chosen for them. And Republican states can do all this in a sadistic theater of misogynist domination, as a public demonstration of how dearly they supposedly value the lives of fetuses and how cheap they find the lives of women.
The legal analyst Mark Joseph Stern, in a piece for Slate, described the role that the post-Roe courts have been assigned in the wake of Dobbs as one of “death panels”. The judiciary, he says, “holds the power to elevate the potential life of a fetus over the actual life of a patient”.
The issue will now be taken up by the US supreme court, which will be tasked with parsing just how much needless suffering states may impose. In the meantime, being pregnant in a conservative state has become a macabre game of chance, with infertility, dismemberment or death always around the corner, waiting to be forced on women by the state should anything go wrong.
Over the past few years, it has become popular in the abortion-rights movement to refer to abortion as healthcare. And this is true, in the broadest sense: all abortions are medical interventions meant to preserve and enhance quality of life. But relying too much on this framing risks obscuring just how far we have gone down the anti-abortion road in the year and a half since Dobbs. Because abortion, of course, is not only healthcare: it is a means by which women and others capable of becoming pregnant, enact their intrinsic human right to shape their own lives, control their own bodily functions, dictate their own priorities and live their own values.
Abortion is not always necessary to protect a patient’s health, or preserve her bare life: sometimes, it is necessary to allow her to do the things that make her life worth living. But this is not how the anti-abortion side sees it, and it is not the issue being debated in Texas v Becerra: the issue there is not about whether women can determine the course of their own lives, but about whether the state of being pregnant means that a woman forfeits her claim on any life at all.
Who, exactly, is endowed with what the anti-abortion movement has for so long called the “right to life”? Who, exactly, is thought to have unalienable claims to life, liberty and the pursuit of happiness? Not women, at least not in the anti-abortion worldview that now carries the force of law in places like Texas. The vision of the law being advanced in Texas v Becerra is one in which medical providers may not intervene to save a woman’s life, may not presume that that life has value and may not treat that life as having dignity – it is one in which they are forced to make her endure unnecessary pain, unnecessary indignity and unnecessary risk, while her life hangs in the balance.
We are accustomed to considering abortion bans as compelling inaction – as stopping a planned intervention and forcing the maintenance of the status quo; that is, of the pregnancy. But this version of an abortion ban, one that places a wall between a woman in a medical emergency and the care that would save her health, cannot be considered passive. The refusal to provide an abortion in these emergency circumstances is a distinctly active choice, one that will, sooner or later, result in a patient’s death.
Any realistic assessment of the fifth circuit’s opinion compels us to see that Texas’s choice is a homicidal one. The anti-abortion movement does not appear to see the irony: it is still us, the feminists, whom they call “murderers”.
Moira Donegan is a Guardian US columnist
