Do Do physicians have an obligation under federal law to keep their patients alive, even if their patients happen to be pregnant women? Do doctors have a duty to prevent mutilation – or irreversible organ damage, or other forms of serious physical harm – and if so, does that obligation even apply to women? Do women have the right to medically necessary care, even if they are pregnant? No, according to the U.S. Fifth Circuit Court.
That’s the conclusion recently reached by a three-judge panel in Texas v Becerra, a case in which Texas sued the Biden administration over guidelines that ordered all hospitals receiving federal funds to perform “necessary stabilizing treatments” on patients — including abortions on pregnant patients undergoing medical experienced emergencies.
The federal leadership, the Biden administration argued, overrode state laws under the supremacy clause. But Texas said the guidelines violated its own total abortion ban, which provides only a vague and effectively inaccessible medical exemption in cases where the life (not just health) of the pregnant woman is at risk. The appeals court sided with Texas, giving the state the freedom to push women to the brink of death — if not beyond it — before allowing them access to medically necessary abortion treatments. It essentially gives the state the green light to impose harm and illness on women it deems insufficiently at risk.
The case is not abstract: those whose pregnancies cause them serious bodily harm are already being forced to endure pain and danger—or to flee their states—as a result of the abortion ban. The fifth ruling comes just weeks after Kate Cox, a Texas woman with a health-threatening 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 Texas and other anti-abortion states have gained morbid power over the lives and health of pregnant women. They can force them to undergo uterine ruptures, organ prolapses, massive blood loss and sepsis. They can force them to lose their fertility. And even in cases where – by luck and grace – none of this happens, 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 be deprived of their health, their self-determination, their dignity and peace of mind, and a lot of money in medical bills – all without recourse or due process to challenge the fate the law has chosen for them . And Republican states can do all this in a sadistic theater of misogynistic domination, as a public demonstration of how much they supposedly value the lives of fetuses and how cheap they consider the lives of women.
The legal analyst Mark Joseph Sternin a piece for Slate, described the role the post-Roe courts have taken on in the wake of Dobbs as one of the “death panels.” The judiciary, he says, “has the power to prioritize the potential life of a fetus over the actual life of a patient.”
The issue will now be heard by the US Supreme Court, which will be tasked with analyzing how much unnecessary suffering states can impose. Meanwhile, in a conservative state, being pregnant has become a macabre game of chance, with infertility, mutilation or death always around the corner, waiting to be foisted on women by the state if something goes wrong.
In recent years, it has become popular within the abortion rights movement to view abortion as health care. And this is true, in the broadest sense of the word: all abortions are medical interventions intended to preserve and improve the quality of life. But if we rely too much on this framework, we risk obscuring how far we have gone on the anti-abortion path in the year and a half since Dobbs. Because, of course, abortion is not just health care: it is a means by which women and others of childbearing potential can exercise their intrinsic human right to shape their own lives, control their own bodily functions, dictate their own priorities, and direct their own lives. to lead. 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 loses her claim to any life whatsoever.
Who exactly is endowed with what the anti-abortion movement has long called the “right to life”? Who exactly has unalienable claims to life, liberty, and the pursuit of happiness? Not women, at least not in the anti-abortion worldview that now has the force of law in places like Texas. The vision of the law put forth in the case of Texas v Becerra is one in which medical providers should not intervene to save a woman’s life, should not assume that life has value, and should not treat that life as worthy of treatment – it is one in which they are forced to put her through unnecessary pain, unnecessary humiliation and unnecessary risk, while her life hangs in the balance.
We are used to seeing abortion bans as coercive inaction – such as stopping a planned intervention and enforcing the maintenance of the status quo; that is, of pregnancy. But this version of an abortion ban, one that puts a wall between a woman in a medical emergency and the care that could save her health, cannot be considered passive. The refusal to perform an abortion in this emergency situation is a decidedly active choice, which will sooner or later result in the death of a patient.
Any realistic assessment of the Fifth Circuit’s opinion forces us to recognize that Texas’s choice is murderous. The anti-abortion movement doesn’t seem to see the irony: it’s still us, the feminists, that they call “murderers.”