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Thursday, March 28, 2024
March 28, 2024

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Estrich: Taking realistic view of abortion

By Susan Estrich
Published: August 8, 2022, 6:01am

On the same day that Kansas voted against allowing the Legislature to ban abortion, the Justice Department announced that it was bringing suit against Idaho, which has the near absolute bar that Kansas rejected.

In explaining the Justice Department suit, Attorney General Merrick Garland emphasized that federal law, applicable to every hospital in the country because they all take federal funds, prohibits denial of emergency medical care to patients in life-threatening situations. That includes women facing medical emergencies like septic and ectopic pregnancies, which could literally kill them if they don’t have a life-saving abortion. Under the Supremacy Clause of the Constitution, when state and federal law conflict, federal law governs. Thus, Garland argued, the Idaho law cannot withstand scrutiny.

The ban on turning away patients facing life-threatening emergencies was originally intended to prohibit hospitals from turning away sick patients who did not have insurance. But there is no reason for it not to apply as well to patients who are turned away for political and not medical reasons. Under the Idaho law, all a prosecutor needs to do is show that an abortion has been performed, and then the burden is on the physician to prove that it was done to save the life of the mother.

A lawsuit already pending in Idaho, brought by a family physician and Planned Parenthood, alleges that the defense for medical emergencies is vague and difficult to interpret, since some conditions may kill a pregnant woman but don’t always. Doctors should not have to fear for their licenses or their livelihood when they take steps to save lives. And pregnant women should not have to fear the consequences, or face hostile interrogation, when they go to the hospital.

The specter of a pregnant woman being denied life-saving care is the new picture of the anti-abortion movement.

Literally since Roe was first decided, the abortion debate has been dominated by the phony fiction of women using abortion as a means of birth control or sex selection; that having an abortion was no different than going to the dentist; even that “legitimate victims” of rape and incest would not get pregnant and need abortions. None of it was ever true.

What is significant about the Idaho suit is that it is based on an entirely different picture of abortion — a picture that recognizes abortion as a medically necessary treatment in life-threatening emergencies.

What is significant about the Kansas vote is that a very red state turned out to reject the kind of ban that half the states are likely to adopt. Or, perhaps, not so likely, knowing that voters may reject such bans and the Justice Department is ready to challenge them.

If people start thinking about abortion in more realistic terms, as a necessary medical procedure and, in many cases, a life-saving one, the results change, as they did on Tuesday.

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