Criminalizing pregnancy

Alabama’s lavatory of democracy is providing an illustration of the war on women coming (if it’s not already here) in Republican-controlled states after Roe is overruled:

I was astounded by how often patients were turned away from emergency rooms and their doctor’s offices in the middle of their miscarriages. No wonder Alabama has the third-highest maternal mortality rate in the nation, I initially thought. People are denied urgent medical attention outright, which left me wondering at first if health care providers were simply negligent and not keeping up with their medical education. Or was this lack of care a reflection of discrimination? Eventually, I landed on discrimination as the cause.

But I was wrong. The reality is much worse. Instead, these medical professionals seem to know what they are supposed to do, but choose not to.

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Medical providers who treat pregnancy-related issues in red states exist in a constant state of fear of performing any procedure that can be classified as an abortion—even while the procedures remain legal. We know that we face the risk of being prosecuted, having our licenses revoked, or even being thrown in jail if we fail to precisely follow every regulation, no matter how arcane or medically unnecessary it is. (We can be cited if the clinic’s janitor’s closet isn’t the size deemed appropriate by the state, for example.)

Part of the problem is a culture that has decided abortion is akin to killing a child. Morality aside, health care providers have also been conditioned by the state to fear providing not only abortion care, but management of adverse pregnancy outcomes more generally. Abortion is outlawed in the state constitution, and state lawmakers made their moral position and hostility toward abortion clear in 2019 when Gov. Kay Ivey signed the Alabama Human Life Protection Act into law. The law banned abortions at every stage of pregnancy and criminalized doctors, charging them up to 99 years in prison for performing the procedure. Ultimately, a federal court overturned the law, but the state is poised to ban abortion outright through a “trigger law” that goes into effect as soon as Roe falls.

Ivey celebrated the law at the time, lauding it as a restoration of the state’s position on abortion prior to Roe. “In all meaningful respects, this bill closely resembles an abortion ban that has been a part of Alabama law for well over 100 years,” Ivey said during the bill’s signing, before noting the law itself was “unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade.” Enforceable or not, laws like this send a powerful message to doctors.

As an OB-GYN, I work in active fear of being arrested for providing evidence-based health care in this state. I am certain that I am not alone. Intervening in an ongoing pregnancy would be examined as an “abortion” by the medical board and subject to the same scrutiny as any procedure I perform in my clinic. Doctors know that if you perform anything that could even be suspected of an abortion, you had better have all of your regulations followed to the letter. No wonder, even though we are directed under federal law to provide appropriate medical care to any pregnant person who shows up in the ER with a medical emergency, few in Alabama are willing to risk their careers and liberty to provide that care.

Galaxy-brained legal liberals who treat abortion rights as a parlor game rather than a material reality have essentially landed on an argument that it’s OK to eliminate reproductive rights in America because Harry Blackmun’s opinion talked too much about how bans on abortion affected doctors. And sure, fine, I agree the opinion should have talked more about the burdens bans on abortion impose on women. But 1)the Supreme Court, as Gerald Rosenberg has observed, is not an educational institution; feminists were able to explain this just fine on their own, 2)Roe would be getting overruled quite literally irrespective of what the opinion said, and 3)the burdens abortion bans impose on medical professionals are actually highly relevant, not least because women can’t get medical care if doctors are too terrorized by the law to provide it.