Abortion, Every Day (4.24.24)

Idaho argues against giving women life-saving care

Click to skip ahead: Starting off with the EMTALA at the Supreme Court. In Ballot Measure Updates, news from Florida, Arizona and South Dakota. In the States, Tennessee’s travel ban heads to the gov’s desk. In 2024 news, Biden goes after Trump in Florida. In Stats & Studies, not enough people know about EMTALA, and raising the alarm on abortion reporting.

---

EMTALA at the Supreme Court

Listening to the Supreme Court arguments this morning about just how sick women need to be in order to qualify for care was straight up nauseating.

For those who need a refresher on Moyle v. United States, you can read explainers here and here. But I highly recommend that you check out this detailed overview from KFF, which answers any possible question you could have.

The short version is that Idaho says that the state’s ban doesn’t conflict with the Emergency Medical Treatment and Labor Act (EMTALA), the federal law requiring life-saving and stabilizing treatment in hospital emergency rooms. Idaho claims their law requires them to stabilize both women and their “unborn child.” The Biden Administration, however, correctly points out that Idaho’s law does prevent doctors from adhering to EMTALA—as evidenced not just by the ban itself, but the fact that doctors are leaving the state en masse because they can’t give patients the standard of care.

In fact, the situation on the ground in Idaho is so bad that doctors are advising pregnant patients to get extra life insurance and to ensure their health coverage will pay for an emergency flight out of the state. This week, the American Medical Association backed up the Biden Administration, saying that Idaho’s law “undermines core medical ethics.”

NPR has a good rundown of what’s at stake in the case, from the impact on the ground in Idaho, to the 2024 election and fetal personhood. And Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, tells Salon, “This case could radically change how emergency medical care is practiced in this country and could make pregnant people second-class citizens in America's emergency rooms.”

It’s not just pregnant people. Remember what George Washington University professor Sara Rosenbaum told the Texas Tribune this week:

“Now you've opened the door to excise any disfavored condition. What if, ‘We're going to prohibit our hospitals from providing emergency care unless someone’s dying from a drug overdose, because we think that by offering emergency care, we're encouraging people.’ Or hospitals are now barred from treating populations with HIV unless they're dying. There's no endpoint to this.”

And while we heard arguments about just how close to death women need to be before legally requiring care, Republicans are desperate to make this case about anything other than our lives and health. That’s why we’re seeing so many takes on ‘states’ rights vs. federal power’ and how the Biden administration is using the case to rewrite the law. They need to make this about something other than women dying while doctors who could have saved them look on.

If you listened to the arguments, you know that it went down pretty much as expected, with conservative justices being assholes. It was fun, though, to see Justices Ketanji Brown Jackson and Elena Kagan going all in on Idaho attorney Joshua Turner—who was clearly in over this head. This, from Justice Kagan, was especially resonant:

“It’s become [that] ‘transfer’ is the appropriate standard of care in Idaho, but it can’t be the right standard of care to force somebody onto a helicopter.”

Solicitor General Elizabeth Prelogar was also a rock star, and did a really good job of bringing the arguments back to the real life impact that this has on patients. (Speaking of real life impact, The Guardian and CBS News spoke to Idaho doctors about what the case means to them.)

Something I found extra interesting—and perhaps predictive of a tactic we’ll see more of—was Turner’s focus on mental health. Specifically, he brought up fake scenarios involving women in their third trimester going to the hospital emergency room claiming to be suicidal in order to get an abortion. He said that under EMTALA, doctors would be forced to give those women abortions.

Now, that’s just not true. And I think it’s telling that the anti-abortion argument comes down to the idea that women are liars who want to end their pregnancies as late as possible. But I wonder if the focus on mental health—which also came up in South Dakota this week, outlined below—is a way for conservatives to pivot away from the physical health argument, which they are losing badly.

After all, anti-abortion activists and lawmakers are eager to stop talking about women going septic and dying; talking about mental health allows them to stop engaging in that conversation and make the issue about supposed ‘loopholes’ in pro-choice policies.

I’ve written previously about the horror and cruelty of mental health language in abortion bans: Nearly every exception for the life of the pregnant person includes the caveat that abortion is prohibited if they’re suicidal. That means Republicans knew that women would want to kill themselves as a result of being forced into pregnancy and enshrined into bans that they simply don’t care.

All of which is to say, if they start talking about mental health—we have a hell of an argument ourselves.

Ballot Measure Updates

With Florida’s 6-week abortion ban set to take effect on May 1, abortion rights groups in the state are urging voters to support Amendment 4. Voices of Florida Executive Director Sarah Parker says, the law “has turned back the clock, but we cannot live in the past.”

Anti-abortion groups, however, see Florida as their chance to stop the incredible post-Roe momentum of pro-choice amendments. Kelsey Pritchard of Susan B. Anthony Pro-Life America told the Catholic News Agency, “If we win Florida, I think it can really turn the tide on these ballot measure fights.”

Conservatives are hyper-aware that every time abortion has been on the ballot, abortion rights has won. A win in Florida would break that streak and give anti-choicers a much-needed mental boost.

Pro-choice groups in Florida have a different kind of hurdle in front of them; this is the first state where abortion rights will need to get 60% of the vote, as opposed to a simple majority. Activists behind Amendment 4 are counting on bipartisan support to get them there. They don’t want the measure overly-tied to Democrats.

Lauren Brenzel, campaign director for Floridians Protecting Freedom, told the Associated Press, “I think that normal people are aware that a candidate campaign is really different than a ballot initiative.” And with President Joe Biden in the state this week, Democratic state Rep. Anna Eskamani, says that if the amendment becomes seen a partisan campaign, “it just makes it more challenging to reach 60%.”

For more on Amendment 4, POLITICO interviewed abortion rights advocate and executive director of the Florida Women’s Freedom Coalition, Anna Hochkammer.

Meanwhile, there was a debate last night about the abortion rights amendment in South Dakota. It featured Rick Weiland of Dakotans for Health, the group advancing the measure, and state Rep. Jon Hansen, a state rep who is also vice president of South Dakota Right to Life. Do I hate the idea of two men ‘debating’ my humanity? I sure fucking do!

Something worth noting, though, is that women’s mental health was brought up at this debate in much the same way it was at the Supreme Court arguments on EMTALA. Hansen claimed that the amendment would allow women to get abortions in the third trimester by claiming mental distress—which is almost word-for-word what Idaho attorney Joshua Turner argued. Are anti-abortion groups sending out some new talking points?

Finally, abortion rights advocates in Arizona say enthusiasm for their amendment has grown significantly since the state Supreme Court ruled in favor of an 1864 abortion ban. Activists for Arizona for Abortion Access tell The Guardian that since the day of the decision, their volunteer numbers have grown from 3,000 to more than 5,000. Love to see it!

Quick hits: Truthout with more on the Nevada pro-choice amendment, and the Associated Press on the new Idaho ballot measure initiative.

In the States

We knew this was coming: Tennessee’s travel ban is headed to the governor’s desk to be signed. This is Republicans’ so-called ‘anti-trafficking’ effort, legislation that would actually criminalize helping a teen get an abortion in any way. Because of deliberately broad language defining ‘trafficking’ as “recruiting, harboring or transporting,” it would be illegal to lend a teen gas money to get an out-of-state abortion, or even send them the url to a clinic.

Democratic Rep. Aftyn Behn called the legislation “a direct attack on me, on my family, on my friends, on my network that support Tennesseans who are pregnant and vulnerable minors that need access to care to go across state lines and receive the necessary care.” And if you want to know how eager Republicans are to start arresting people, consider that Rep. Jason Zachary, who sponsored the bill, threatened Behn with arrest—saying that her comments are “what recruitment looks like.”

A legal challenge against the travel ban is expected. A similar law in Idaho was blocked by a judge who ruled it violated free speech rights.

Remember, this doesn’t stop at teenagers—minors are just the canaries in the coal mine. Already, multiple Texas counties have made it illegal to help a woman of any age leave the state for an abortion, and Alabama Attorney General Steve Marshall has argued that the state could restrict pregnant women’s travel in the same way they restrict a sex offender’s. (This never ceases to amaze me.)

I wish that was the only news out of Tennessee today, but alas: The state has also advanced the legislation that will require public schools to show an anti-abortion video produced by Live Action, a radical group known for deceptive videos. Nashville Scene also reveals that the state has cut lessons about birth control from sex education curricula: Tennessee removed mentions of emergency contraception and information on how to get contraception.

If you missed the good news out of Arizona earlier today, you can read more here:

Breaking: Arizona House Repeals 1864 Ban

Anti-abortion Republicans in the state are pissed off about the repeal, which they know their colleagues supported out of fear of voter backlash. Arizona Rep. Alexander Kolodin says, “We’re willing to kill infants in order to win an election.”

In other Arizona news, the Los Angeles Times has a look inside an abortion clinic, and what it’s been like since the state Supreme Court ruling.

In Maine this week, Gov. Janet Mills enacted new protections for those seeking and providing abortions and gender-affirming care. The legislation has been the center of a lot of conservative ire, with Republican attorneys general claiming it would allow “state-sanctioned culture war litigation tourism.” (Because it would allow people to use Maine courts to sue agencies—like law enforcement and prosecutors—in anti-abortion states.)

In Michigan, a House panel approved legislation that would allow pharmacists to prescribe birth control directly to patients, regardless of their age. I’m sure we’re going to hear from Republicans on this one; they love talking about ‘protecting’ teenagers while passing laws that would force them to give birth.

Finally, California is introducing a plan to help Arizona abortion providers practice in the neighboring state should the 1864 law stand. Gov. Gavin Newsom’s bill would allow Arizona providers to get a temporary license in the state.

Quick hits:

• Ohio doctors are worried about the impact of the EMTALA case;

• California is set to spend millions on an outreach campaign letting college students know about abortion medication on campus;

• CVS and Walgreens have begun dispensing abortion medication in Nevada;

• And Axios on how Florida’s abortion ban will impact North Carolina clinics.

2024

President Joe Biden was in Florida this week, blaming Donald Trump for the post-Roe crisis around the country. Biden has been increasingly campaigning on abortion rights, and his team sees the imminent passage of an unpopular 6-week ban as an opportunity for the president to win Florida:

"This extreme Florida law is going to impact 4 million women in the state. Let's be real clear. There's one person responsible for this nightmare. And he's acknowledged and he brags about it–Donald Trump."

Biden also blamed Trump for Arizona’s 1864 ban, saying in a Tampa speech, “Trump has literally taken us back 160 years.”

The New York Times reports that abortion rights groups are spending big money in North Carolina right now in the hopes that it will help win the gubernatorial race and drive votes for Biden. Planned Parenthood Votes South Atlantic will spent $10 million on digital ads, new field offices and a canvassing operation. The Times points out that a Democrat hasn’t won since 2008, and that Biden lost the state to Trump by just over 1%.

Two quick hits: Sen. Elizabeth Warren was on MSNBC, talking about how nowhere will be safe for abortion rights if Trump wins; and Mike Pence continues on his media tour calling for a “minimum national standard” on abortion, aka a federal ban.

Stats & Studies

New polling from Navigator shows that 85% of Americans have heard little to nothing about EMTALA. That’s absolutely wild and really important to change. Because once people learn about it, 74% support the law. In fact, the poll found that 78% of Americans believe that states with abortion bans should have to follow EMTALA—and that includes 67% of Republicans!

Finally, I’m glad to see The New York Times investigating something I’ve been raising the alarm about: how conservatives plan to use data and abortion reporting to go after providers and patients. Most recently, I warned about Indiana Attorney General Todd Rokita’s efforts to make abortion reports public records—but anti-abortion data collection efforts are happening across the country. Intimidating patients and creating hurdles for providers is going to become standard practice in anti-choice states, so the more coverage the better.