How Forced Births Will Affect Women’s Healthcare

From Kate Riga of Talking Points Memo:

… The Supreme Court has not only let red states flip the calendar pages back to pre-1973 America. In many ways, it’s worse than that.

Abortion has become a foundational pillar to all kinds of health care procedures. Ripping it out [reduces their availability].

America now faces a reality that will be like returning to the early ‘70s, but with half a century of medical and technological advances that health care providers in certain states can no longer use. Since Roe, abortion care became drastically safer and more efficient, and the medical procedures involved in abortion have become indelibly embedded in the wider health care landscape. They’ve become a key aspect of all kinds of other health care, from miscarriage management to cancer treatment.

Now, in states from Texas to Ohio, we’re already seeing how abortion — or procedures that can be construed as abortion — are deeply intertwined with health care more broadly, and what it means for them to be taken away.

It’s easier, and convenient for the anti-abortion movement, to imagine abortion as a siloed-off procedure, under the auspices of Planned Parenthood and only relevant to young women seeking to end their unwanted pregnancies. But for decades, that hasn’t been the case.

After Roe, Abortion Becomes Safe

After the Supreme Court legalized abortion nationwide, researchers and physicians could finally learn how to get better at it.

“If the procedure is illegal, you can’t do clinical studies and you can’t develop new procedures because you’re doing it secretly,” Johanna Schoen, a professor of history at Rutgers University told TPM. “Most people providing abortions were not clinicians and not able to do it in a medical setting.”

“After Roe, clinicians made it not only the safest out-patient procedure in the country, but also much safer than pregnancy and delivering a baby,” she added. “All of that has to do both with the improvement of abortion procedures and development of new ones.”

In addition to the procedure improvements, after Roe, physicians started receiving more training in how to perform abortions and manage potential complications. Mortality rates associated with abortion started to plummet. And the number of women hospitalized for abortion-related complications dropped between 1970 and 1977, with a steep dip after 1973. By 1995, fewer than 0.3 percent of abortion patients were hospitalized with complications from the procedure.

Abortion Is Now Woven Throughout Today’s Medical Landscape 

While abortion care developed apace, other related medical technologies improved too. By the late 1970s, ultrasounds were being used widely in American hospitals, helping to advance detection of fetal abnormalities.

As the technology continued to improve over the next few decades, physicians became better able to identify abnormality markers. Under Roe, in states that hadn’t impinged on the abortion right with gestational bans (many diagnoses occur in the second trimester, though advances are pushing some earlier), women could opt for an abortion once abnormalities were detected rather than carrying the pregnancy to term.

Now, after Dobbsexperts are certain that women in states with draconian abortion bans will have to go through labor and give birth to babies that cannot survive.

The development of ultrasound technology has also enabled physicians to more accurately diagnose unruptured ectopic pregnancies in a way that was not possible pre-Roe. In these pregnancies, the fertilized egg implants outside of the uterus where it cannot survive but can pose a deadly threat to the woman if it’s allowed to grow.

The improvement in mortality rates associated with ectopic pregnancies followed: a more than 70 percent decrease in deaths-to-cases from 1970 to 1978.

Already, stories are emerging about the demise of Roe throwing ectopic pregnancy care into chaos. Doctors report feeling unsure about whether abortion bans — which are often written using broad political messaging language rather than medical — include ending ectopic pregnancies, which are not viable. Various lawmakers and anti-abortion activists have proven themselves to be particularly unlearned on the subject, some suggesting that terminating ectopic pregnancies is not medically necessary, while others have offered up a supposed solution — just moving the ectopic pregnancy inside of the uterus — technology for which does not currently exist.

Another medical success story already under threat is in-vitro fertilization, or IVF. The first IVF baby was born in 1978; since then, initial single-digit success rates have blossomed to nearly 50 percent for cases where the woman is under 35 years old. One to two percent of births in the United States annually result from IVF.

Fertility clinics have already been flooded with calls by people panicked about what abortion bans mean for their procedures. During IVF, clinicians usually implant one or two embryos in the uterus and store the rest for potential future use. It’s unclear whether bans would stop people from discarding the unneeded embryos, perhaps forcing them to pay to keep them frozen forever. Genetic testing of the embryos could become illegal. And if some embryos don’t survive the implantation process — or are nonviable and discarded — clinics could potentially be liable.

Some states are already contemplating granting personhood to the embryos, which could put IVF clinics out of business and leave the people who depend on them without options.

Far-Reaching Consequences

Even cancer treatment, a seemingly far cry from reproductive care, depends on abortion to afford its patients the right to treat their illnesses without worrying about the oftentimes toxic effect those treatments have on fetuses.

Cancer occurs in about one in every 1,000 pregnancies annually, leaving the women with few options even while Roe’s protections were the law of the land. Many treatments can cause miscarriages or birth defects in the developing fetuses, especially at the beginning of the pregnancy. The CEO of the American Cancer Society said that radiation therapy is never given to pregnant patients at all.

Ending their pregnancies, for these patients, can become a matter of literal life and death — the only way for women to receive the full gamut of treatment to cure their cancer. Now, in some states, women may have to choose: lifesaving treatment that will harm the developing fetus, or leaving their cancer untreated.

Some pharmacists are already restricting patients’ access to methotrexate, a therapy for certain kinds of cancer that can induce abortions. Methotrexate is also used in treating ectopic pregnancies and, since the 1980s, soothing chronic inflammation and pain, making it a mainstay in treating diseases like lupus, rheumatoid arthritis and psoriasis. The Arthritis Foundation has stood up a hotline amid reports of patients struggling to obtain the drug.

Two other pills — mifepristone and misoprostol, the collective “abortion pill” approved by the Food and Drug administration for combined used through 49 days of gestation in 2000, and for longer now — are already being acutely targeted by anti-abortion lawmakers. There’s a long history of animosity towards mifepristone in particular, with the FDA baselessly categorizing it as dangerous for years.

Those medications are indispensable in treating miscarriages, which at least one in four American women will have by age 45. Even before the Dobbs ruling, women have had to rely on abortion clinics for miscarriage treatment, often because of arbitrary limitations on who can distribute mifepristone. That problem has been compounded since the ruling by sparking confusion among some hospitals about whether other aspects of miscarriage care will be misconstrued by authorities as an elective abortion.

“Management of miscarriages and ectopic pregnancies are things that were not really possible when abortion was illegal,” Schoen said. “Women in the middle of miscarriages and ectopic pregnancies were up shit’s creek — and people died as a result of that.”

Abortion is a medical success story. Bringing the procedure out of the shadows allowed clinicians to make it safe and humane, and to weave it into other medical treatments. Procedures that are related to, or can be construed as abortion, are now integral parts of an astoundingly wide range of medical care. All of it is under threat.

The Supreme Court is not sending large swaths of the country back to the relative ignorance of pre-Roe America. It’s sending us back in time armed with prodigious knowledge and then-undreamed-of technology that lessen women’s suffering, and uncomplicate and alleviate illnesses where pregnancy is not an option — but forbidding health care workers to use that knowledge.

Women will suffer and they will die, even while doctors have 50 years of medical advancements at their backs….

It Was Religion, Plain and Simple (and Crazy)

It’s the official doctrine of the Catholic Church that a zygote, blastocyst, embryo or fetus is just as much a human being as you or me. It’s a crazy idea, but it shouldn’t matter to the rest of us what a church’s doctrine is as long as they leave the rest of us alone (and don’t do anything crazy to their children on religious grounds). It shouldn’t even matter to the rest of us that a lot of non-Catholics have adopted the same peculiar idea. The problem is that millions of people who accept this strange religious doctrine want the rest of us to act as if we accept it too.

I don’t know how many people who want to force pregnant women and girls to give birth are motivated by the religious idea or by the desire to control women’s and girls’ lives. Some or many are motivated by both. Linda Greenhouse, who writes about the judicial system for the New York Times, says she originally put the Dobbs decision that overturned Roe v. Wade in the abortion category, but then decided it was really about religion:

My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. For this past term, one of my charts was, of course, labeled “abortion,” and naturally that’s where I recorded Dobbs v. Jackson Women’s Health Organization….

But the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion”….

Justice Alito took pains to present the majority’s conclusion as the product of pure legal reasoning engaged in by judges standing majestically above the fray of Americans’ “sharply conflicting views” on the “profound moral issue” of abortion, as he put it in the opinion’s first paragraph. And yet that very framing, the assumption that the moral gravity of abortion is singular and self-evident, gives away more than members of the majority, all five of whom were raised in the Catholic Church, may have intended.

recent essay in my local newspaper by a Congregational minister, John Nelson, was a powerful reminder that in speaking from one particular religious tradition, the court ignored other vital streams of religious thought. “Samuel Alito is as free as any person to hold forth on morals and politics,” Pastor Nelson wrote, “but his opening salvo is backed up with no reflection on the sources, claims or nuances of morality, leaving the impression that the decision was developed through moral bias rather than moral reasoning.” Describing his own response to the decision as one of “fury,” the pastor said that the justices, in their “concern for the lives of fetuses,” overlooked the “lived experience” of women. “To show no regard for a lived experience is immoral,” he wrote.

Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law. And women, as I have observed before, are all but missing. It is in paragraphs scattered throughout the opinion that the fetus shines.

“None of the other decisions cited by Roe” and Planned Parenthood of Pennsylvania v. Casey, the 1992 ruling that reaffirmed the right to abortion, “involved the critical moral question posed by abortion,” Justice Alito wrote. “They are therefore inapposite.” Further on, he wrote: “The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a state’s interest in protecting prenatal life.”

This was a strange criticism of the dissenting opinion, signed jointly by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They argued vigorously for retaining the 1992 Casey decision, which in fact, in a departure from Roe, declared that the state’s interest in fetal life was present from the moment of conception. Casey authorized the states to impose waiting periods and “informed consent” requirements that the court in the years following Roe v. Wade had deemed unconstitutional.

Justice Alito knows the Casey decision very well. As a federal appeals court judge, he had been a member of the panel that upheld most of Pennsylvania’s Abortion Control Act in the case that became Casey. Then-Judge Alito, alone on the panel, wanted to uphold a provision of the state law that required a married woman to inform her husband of her plan to get an abortion.

In affirming the appeals court’s decision, the Supreme Court in Casey emphasized in one of the opinion’s most vivid passages the unconstitutional burden that the spousal notice requirement placed on women: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” Perhaps that aspect of the Casey decision still rankled. In any event, Justice Alito’s attack on his dissenting colleagues for ignoring the state’s interest in fetal life was seriously misguided.

Of course, from his point of view, Casey didn’t go far enough because the weight the court gave to fetal life was well below 100 percent. The Casey decision was five days shy of 30 years old when the court overturned it, along with Roe v. Wade, on June 24. Given that this was their goal from the start, the justices in the Dobbs majority really had only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.

There is another norm, too, one that has for too long restrained the rest of us from calling out the pervasive role that religion is playing on today’s Supreme Court. In recognition that it is now well past time to challenge that norm, I’ll take my own modest step and relabel Dobbs for the religion case that it is, since nothing else explains it.

Why the Court Has Gone Rogue and Ideas on How to Fix It

Five justices nominated by Republican presidents (and two nominated by Democrats) passed Roe v. Wade in 1973. Four justices nominated by Republicans (and one nominated by a Democrat) upheld Roe v. Wade with some revisions in 1992.

That didn’t happen this week. David Roberts (of the Volts newsletter) helps explain how the Supreme Court got filled up with right-wing fanatics:

If you read about the birth of the Federalist Society, there’s a kind of theme in the background that’s worth elevating. Conservatives’ problem over the years is that they would nominate judges & then be “betrayed” as judges drifted left (or just moderate). Souter, Kennedy, Blackmun etc.

Conservatives have lots of ways to explain this to themselves. Being exposed to liberals corrupts the bodily fluids! Etc. But the most most sensible & obvious explanation is that decent people, once they survey the evidence & arguments, come out in a decent/compassionate/liberal place.

Now, noticing that the smart, decent people they nominated kept coming to compassionate/moderate conclusions, they did NOT conclude, “gosh, maybe we should be more compassionate/moderate, since that’s where good-faith study of the evidence seems to lead!”

Instead, they decided they needed a cult-like organization where they could create hyper-ideological zealots, people so committed to reactionary conclusions that NO amount of exposure to evidence or simple humanity could ever change their minds: thus, Federalist Society.

Thus we have the striking situation we get today: liberals looking for judges can pull them from anywhere. But conservatives looking for judges can ONLY find them in this creepy billionaire-funded hothouse fringe cult full of ditto-brained mediocrities.

It’s really a great illustration that if you want someone truly, consistently reactionary, you need to find a particular dysfunctional personality type that can selectively ignore evidence, ignore nuance & context, ignore simple humanity & human need. You need a zealot.

That’s why the conservatives on SCOTUS are, in addition to being so horrible on the law, just kind of weird & creepy — intellectually mediocre but hyper-prickly & vain. They were forged in the Federalist Society laboratory. That does not produce normal, healthy people.

Unquote.

Jamelle Bouie of The New York Times has some ideas about fixing the Court:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system. For many Democrats, President Roosevelt’s attempt to expand the size of the court is less a triumph than a cautionary tale — a testament to the limits of presidential leadership and presidential power.

But Roosevelt did eventually get a Supreme Court that allowed most of the New Deal to stand. The threat worked. The court was humbled.

It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

Unquote.

One way to begin is for anybody who had trouble voting for Barack Obama, Hillary Clinton or Joe Biden in a general election to recognize that the Democratic Party, lame as it often is, is the only institution that stands between us and living in an anti-democratic, Christianity-centered, climate crisis-denying, anti-woman, anti-gay, reactionary dystopia.

We also need to exert pressure on the aged leaders of the party to face reality. This isn’t 1991 anymore.

Use what’s left of our democracy or lose it.

Requiem for the Supreme Court

That’s the title of an article by Linda Greenhouse, the longtime observer of the Supreme Court for the New York Times. She writes:

They did it because they could.

It was as simple as that.

Greenhouse is no firebrand, but she concludes that the Court’s reactionaries have destroyed “the legitimacy of the Court”.

The title of Jill Filipovic’s article for The Guardian is “It’s time to say it: the US supreme court has become an illegitimate institution”. She writes:

As of 24 June 2022, the US Supreme Court should officially be understood as an illegitimate institution – a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.

On Friday, in Dobbs v Jackson Women’s Health, the supreme court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide. It is difficult to overstate just how devastating this is for pregnant people, for women as a class and for anyone with even a passing interest in individual freedom and equality.

But it’s also devastating for those of us who care quite a bit about American democratic traditions and the strength of our institutions. Because, with this ruling, the Supreme Court has just signaled its illegitimacy – and it throws much of the American project into question. Which means that Democrats and others who want to see America endure as a representative democracy need to act.

Of the nine justices sitting on the current court, five – all of them in the majority opinion that overturned Roe – were appointed by presidents who initially lost the popular vote; the three appointed by D____ T____ were confirmed by senators who represent a minority of Americans. A majority of this court, in other words, were not appointed by a process that is representative of the will of the American people.

Two were appointed via starkly undemocratic means, put in place by bad actors willing to change the rules to suit their needs. Neil Gorsuch only has his seat because Republicans, led by Mitch McConnell, blocked the ability of Barack Obama to nominate Merrick Garland – or anyone – to a supreme court seat, claiming that, because it was an election year, voters should get to decide.

And then D____ T____ appointed Amy Coney Barrett in a radically rushed and incomplete, incoherent process – in an election year.

And now, this court, stacked with far-right judges appointed via ignoble means, has stripped from American women the right to control our own bodies. They have summarily placed women into a novel category of person with fewer rights not just than other people, but than fertilized eggs…. After all, no one else is forced to donate their organs for the survival of another – not parents to their children, not the dead to the living. It is only fertilized eggs, embryos and fetuses that are newly entitled to this right to use another’s body and organs against that other’s will; it is only women and other people who can get pregnant who are now subject to these unparalleled, radical demands.

This raises a fundamental question: can a country be properly understood as a democracy – an entity in which government derives its power from the people – if it subjugates half of its population, putting them into a category of sub-person with fewer rights, freedoms and liberties?

The global trend suggests that the answer to that is no. A clear pattern has emerged in the past few decades: as countries democratize, they tend to liberalize women’s rights, and they expand abortion and other reproductive rights. Luckily for the women of the world, this is where a great many nations are moving.

But the reverse is also true: as a smaller number of countries move toward authoritarian governance, they constrict the rights of women, LGBT people and many minority groups. We have seen this in every country that has scaled back abortion rights, reproductive rights, and women’s rights more broadly in the past several years: Russia, Hungary, Poland, Nicaragua and the United States.

The same week that the Supreme Court issued its decision in Dobbs, the US House of Representatives has been holding hearings to inform the public about what actually happened during the attempted coup of 6 January 2021, and to ideally hold perpetrators, traitors and seditionists to account. We are only a year and a half past that disgraceful day, when an angry mob decided that they, an authoritarian, patriarchal, white supremacist minority, should rule – that any other outcome, no matter how free and fair the election, was illegitimate.

The Supreme Court decision stems from that same rotted root: the idea that a patriarchal minority should have nearly unlimited authority over the majority. The [reactionaries] on the court rightly understand that individual rights and women’s freedoms are incompatible with a system of broad male control over women and children, and a broader male monopoly on the public, political and economic spheres.

But that authoritarian vision is also incompatible with democracy.

And so Democrats now have a choice. They can give speeches and send fundraising emails. Or they can act: declare this court illegitimate. Demand its expansion. Abolish the filibuster. Treat this like the emergency it is, and make America a representative democracy.