Health Care

The Biggest Anti–Abortion Rights Lie Is Back at the Supreme Court

One of the most consistent and adamant claims of the anti-abortion movement is that opponents of reproductive rights care deeply about women’s health. Indeed, even after winning the reversal of Roe v. Wade, conservative crusaders continue to trumpet their supposed efforts to support women and women’s health. Of course, the devastating health impacts of the abortion bans that have proliferated around the country after the fall of Roe have dramatically undermined this claim. And now the anti-abortion movement’s positions in two big cases the Supreme Court is hearing make it even more obvious just how big a lie this claim is.

The purported concern about women’s health is all over a brief filed in the Supreme Court by the Alliance for Hippocratic Medicine, a hyperconservative group of doctors and medical associations incorporated for the specific purpose of trying to roll back the FDA’s approval of mifepristone, one of the two extremely safe drugs widely prescribed for medication abortion. The brief in FDA v. Alliance for Hippocratic Medicine reads as a greatest hits of faulty claims about the purported dangers of abortion: “The potential for serious adverse events.” “Abortion-drug complications.” The need for “surgical intervention.” These lines sound all too familiar to reproductive justice advocates who have been fighting for years against things like TRAP laws—targeted restrictions on abortion providers designed to shut down clinics and make it more difficult to access abortion under the guise of protecting women’s health.

Yet to understand what the Alliance and its comrades really think of women, look no further than the statute they repeatedly invoke in their Supreme Court litigation: the Comstock Act. That law prohibits the mailing of “obscene, lewd, or lascivious materials,” like pornography, or “every article or thing designed, adapted, or intended for producing abortion.” Today, anti-abortion activists, led largely by Jonathan Mitchell (a lawyer for former President Trump and the architect of S.B. 8, the Texas law that deputizes ordinary citizens as anti-abortion bounty hunters), are reimagining the Comstock Act as a national abortion ban.

Named for the former dry-goods salesman and anti-vice crusader Anthony Comstock, the Comstock Act was passed in 1873 as part of a broader sexual purity campaign aimed at curbing the distribution of obscene literature and other materials perceived as promoting sex for pleasure rather than for procreation.

Comstock’s attack on non-procreative sex was closely linked to a growing fear that women, including those who were newly entering the workforce, would seek to free themselves from their obligations as wives and mothers. Passed before women obtained the right to vote, the Comstock Act was very much a reflection of its era—a time when fringe physicians literally warned women that failing to become a mother before age 25 risked a “continuous tendency to degeneracy of and atrophy of the reproductive organs.”

Of course, those pseudoscientific theories have since been debunked—even the lawyers in the Alliance don’t rely on them anymore. (They rely on different questionable science though—their briefs in the lower courts even cited studies that were retracted after the briefs were filed.) So, all that remains of the Comstock Act is its so-called morality justification: the idea that non-procreative sex would lead to the erosion of women’s roles as wives and mothers, a notion that inspired great fear in the Anthony Comstocks of the 1870s and the Jonathan Mitchells of today.

This is what Mitchell and the anti-abortion crusaders at the helm of the conservative legal movement really want for women: to turn the clock back to the 1800s. Just look at the movement’s ultimate goal: “fetal personhood,” the idea that fetuses are entitled to full constitutional rights. If such laws were enacted, women—indeed, all people capable of bearing children—could be subject to all sorts of draconian controls reminiscent of the Victorian era, rebranded as “protections” for the “person” growing, or that might potentially grow, inside of them. Indeed, people could even be forced to undergo dangerous and unwanted medical interventions in the name of preserving a fetus’s health.

But fetal personhood is not very popular with voters, even many Republicans. Just look at the repeatedly rejected ballot measures designed to establish it. Just look at the political backlash against the Alabama Supreme Court’s recent ruling that frozen embryos are human beings. Thus, in an election year, it’s not surprising that key voices of the anti-abortion movement are still talking about “women’s health” while they wait patiently for their opportunity to continue to the movement’s next phase.

To get a better sense of what anti-abortion activists really think of women’s health, read their briefs in the other case addressing abortion at the Supreme Court this term, Idaho v. United States. That case is about whether there is a conflict between Idaho’s near-total abortion ban and a federal law known as the Emergency Medical Treatment and Active Labor Act, or EMTALA. If there is a conflict, Idaho’s law must give way under a doctrine known as preemption, which gives effect to the Constitution’s rule that federal laws constitute “the supreme Law of the Land,” conflicting state laws notwithstanding.

EMTALA, enacted in 1986 with bipartisan support, requires that all Medicare-funded hospitals with emergency rooms certify that they will provide “such treatment as may be required to stabilize” patients experiencing an “emergency medical condition.” That treatment plainly includes abortion when termination of a pregnancy is necessary to prevent placing a patient’s health in “serious jeopardy,” or “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part.”

Conservative groups like the Manhattan Institute, the Foundation for Moral Law, Advancing American Freedom, and the National Right to Life Committee disagree. In their view, when pregnant people show up in an emergency room in Idaho with, say, uncontrollable uterine hemorrhage or severe preeclampsia, they must suffer whatever consequences might flow from Idaho’s restriction of the treatments available to them—be it sepsis, irreversible kidney failure, or hypoxic brain injury.

It may seem ironic that a group that dubs itself “the National Right to Life” and purports to care about women’s health is arguing against what may very well be lifesaving—or at a minimum, quality-of-life-preserving—medical care for women. But caring about “life” has always been a lie, just like caring about “health.” The conservative groups’ briefs in the EMTALA and mifepristone cases lay that bare.

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