A League of Their Own

Do pregnant women have the same rights under the law as everyone else?

Photo by Olga Kononenko on Unsplash

Feminists often say that abortion bans make women second-class citizens. And it’s true — abortion bans strip from pregnant women the basic right to bodily autonomy, which other people enjoy. This is true for any abortion ban. But this concept — that banning abortion puts pregnant women in a different class from “regular” people — is particularly apparent in laws that do not allow for a full range of emergency care to preserve a pregnant woman’s health. These laws quite literally violate general duty-of-care requirements for emergency room workers, and do so only for pregnant women as a class. The anti-abortion movement writes them, promotes them, passes them, defends them, and fights for them in court. And the US Supreme Court is set to hear one of them, and decide: Can the law say that pregnant women are not entitled to the same protections as everyone else?

The case comes out of Idaho, which bans abortions almost entirely. The Idaho ban has an exception for abortions which save a woman’s life, but not those that are necessary to preserve her health. The Biden administration has issued a common-sense rule which basically says that, regardless of state law, emergency rooms and other medical facilities have to comply with federal law when it comes to providing care. That means they still have to afford pregnant women the same duty of care that they afford any patient, which is to take steps necessary to stabilize the patient, preserve their health, and save their life.

In no other case do emergency room physicians have to wait, as a matter of law, until a patient’s condition deteriorates to the point where they are going to die before they can provide necessary care to stabilize them. But if the patient is pregnant, and if what she needs to stabilize her is an end to the pregnancy, ER doctors in states like Idaho may face prison time for doing their jobs. The Biden administration is trying to clarify that the federal law saying doctors have to keep patients not just alive but stable — that doctors have to help patients not just avoid death, but avoid major and potentially irreversible harm — applies fully to pregnant women, too.

A federal district court agreed. From the New York Times:

“If the physician provides the abortion, she faces indictment, arrest, pretrial detention, loss of her medical license, a trial on felony charges and at least two years in prison,” Judge Winmill wrote. “Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health — such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury or even death.”

“And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication,” the judge went on. “All because Idaho law prohibited the physician from performing the abortion.”

The “pro-life” movement, though, sees it differently. They argue that the “unborn child” is a patient, too. In states like Idaho, if a pregnancy threatens a woman’s health, well, that isn’t a good enough reason for the pregnancy to end. These laws put fetal life ahead of maternal life, and render women little more than fetus-sustaining objects.