EMILY GILL
Reproductive health care has been much in the news over the last months, most recently regarding the Alabama Supreme Court’s ruling that frozen embryos are children. Patients who may be considering in vitro fertilization, in some cases the only option for reproduction, do not know going forward whether they and their physicians may be held legally responsible for embryos that do not develop successfully once implanted. This is only one of the many uncertainties flowing from the refusal of both the Supreme Court and many states to leave individuals’ reproductive decisions up to patients and their doctors. I want to comment upon several aspects of this untenable situation.
One current controversy involves the 1986 Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals nationwide to guarantee emergency care to all patients, and which applies to any hospital that receives Medicare funding and that has an emergency department. Hospitals must stabilize patients or transfer them to a medical facility that can do so. After the right to abortion was overturned, the Biden administration issued a memo saying that the law includes abortion when this is required to stabilize a patient.
Although this requirement is supposed to preempt state laws that ban abortions, the Idaho and Texas attorneys general hold that their laws mean to save the lives of all women and their unborn children, and that therefore EMTALA does not override their laws. The Supreme Court will hear the Idaho case, initiated by the Biden administration because the state’s ban has no exception for threats to the health of pregnant individuals. In several states, women have still been denied abortions when facing threats such as infections and possible loss of the uterus. Oklahoma, for example, allows abortions only with “an immediate threat to the life of the mother.” Texas won a case arguing the EMTALA would force abortions in violation of state law, and the judgment was upheld by the Fifth Circuit. I have read about situations where women have been on the edge of shock from blood loss before abortions were allowed.
A strict interpretation of state law threatened Texan Kate Cox, who had to travel out-of-state to obtain an abortion when continuation of her pregnancy involving a severe fetal anomaly threatened her future reproductive capacity, but only after she sued and was batted away by the Texas Supreme Court. The Texas abortion ban allows abortion only if a pregnant individual faces a “life-threatening condition” that “poses a serious risk of substantial impairment of a major bodily function.” How does one define “serious risk,” “substantial impairment,” or “major bodily function”? Law professor Greer Donley wonders, “Does an
80% chance of losing a uterus or fallopian tube qualify? What about a 30% chance of a cardiac event that could be fatal?” Donley concludes that there is no objective way to identify medically necessary abortions. Antiabortion activists try to distinguish therapeutic (medically necessary) abortions from elective (by choice) abortions. But every case is different. Trying to make this distinction reminds one of some 20th-century attempts to distinguish the “deserving poor” from the undeserving: only the former were entitled to help.
Finally, the Chief Justice of the Alabama Supreme Court, Tom Parker, used the Bible to buttress his opinion that human embryos are children. He turned to the book of Genesis and that of the prophet Jeremiah. “Human life cannot wrongfully be destroyed without incurring the wrath of a holy God. … Even before birth … all human beings have the image of God and their lives cannot be destroyed without effacing his glory.” Columnist Charles Blow in the New York Times wrote that the decision “essentially turns cryopreservation tanks into frozen nurseries.” Classifying embryos as children is “tied to a religious crusade to downgrade the personhood of women by conferring personhood on frozen embryos.” The will of God may win in a theocracy, but the will of a majority of the American people should win in the United States.
— Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University