What are the abortion cases moving in the Supreme Court?
An update on mifepristone and EMTALA cases being heard by SCOTUS
It’s been a while since I’ve taken us through the current state of abortion access in these weird ol’ United States. After the long-coming gut punch of the Supreme Court decision in Dobbs, we watched as communities slowly learned through the grief of attacks on autonomy. Devastating stories of people getting turned away from care, from providers not knowing what to do in navigating these impossibly cruel laws, and also stories of deep resilience.
It was said many times by leaders in the reproductive health, rights, and justice movements in the weeks following Dobbs; upending the legal framework was not the end goal of the anti-abortion movement. There was more for them to go after.
Before Dobbs, the anti-abortion legal tactics in legislatures and court houses around the country was a chipping act. Chip away at laws, chip away at freedoms, chip away at facts, chip, chip, chip chip chip. It was careful. Small. Maybe if they moved at such a quiet, stealth pace people would lose track of the overall overhaul.
After Dobbs, the anti-abortion tactics are a hacking act. Flailing with sharp objects to see what else they can cut away after already severing the head from the body. Maybe the legs can go. Maybe the hair can go. An attempt to remove all recognizable parts that make a human a human.
Now, the hacking is coming for the bits that are left.
For over a year now, a case has slowly moved from a low court in Texas through many challenges and appeals, all the way to the Supreme Court. Anti-abortion strategists are trying to make a case that mifepristone, one of the medications used in medication abortion care, was approved too quickly and too recklessly by the FDA. Medication abortion care now accounts for over 60% of abortions happening in the country because of how many procedural bans, gestational age bans, and targeted regulations of abortion providers and clinics that are still getting in the way of clinics that are still open in states that haven’t been totally taken down by total abortion bans.
If they are able to make the medication less accessible, they think, they’ll be able to even further eliminate abortions in the country. The ones that are still happening in the face of their efforts to make us feel small.
The oral arguments for this case were just heard on Tuesday at the Supreme Court and it became clear that some of the judges realized what an asinine line of claims the anti-abortion folks are making. Mifepristone is safe. It’s effective. We have over 20 years of research, even more years of stories from folks around the world, and millions and millions of successful abortion stories over the course of that time that prove its safety and efficacy. But as we keep learning in a harsher fashion, there’s no interest in ensuring peoples’ safety.
The other abortion case being heard by the Supreme Court could not make that any clearer.
Physicians are required by federal law to intervene with emergency medical care under the Emergency Medical Treatment and Labor Act, or EMTALA. Under EMTALA, emergency departments in hospitals in the United States “must provide medical care to stabilize all emergency patients.” But, the state of Idaho, one of the states trying to come after people who need and provide abortions in devilishly obsessive ways, tried to make a case that there was a limit to EMTALA and that limit was stabilizing patients by providing abortion care.
Many of the abortions that happen in this country are by the careful thought and choice of the pregnant person. Most, even. Someone gets pregnant, for whatever individual and valid reason is theirs and theirs alone, they don’t want to be pregnant. And they get the abortion care they need to end that pregnancy. But, sometimes, abortion care is provided in emergent circumstances to save the pregnant person.
There are many health conditions that become very lethal very quickly that pregnancy cannot coexist with. Conditions related to blood pressure, fluid build up, bleeding… I’m not a doctor but I happen to live and work with physicians who can share all of those specific details. What’s important here is that in some instances, people present to the emergency room at hospitals with life-or-death health conditions and the only way to keep that patient alive is to end their pregnancy.
These circumstances are devastating and very, very scary. They often require immediate intervention as the patients’ condition can change with little to no warning. And the horrific reality that is if the patient is not able to access their emergency abortion care, they can die.
But some fuckers over in Idaho said you know what, we don’t care about these patients. As a state, we’ve claimed ourselves to be so “pro-life,” so “pro-baby,” that we don’t need to abide by EMTALA if it means providing lifesaving abortions because abortion is, by their definition, life-ending. The health care provider should stand around and wait until dealth is imminent to meet the state’s abortion ban exception of when the pregnant person’s life is in danger. The Biden Administration pushed this dangerous and hateful decision all the way to the Supreme Court. Because no health care provider who has taken an oath to care for patients, to do them no harm, should be forced to stand back and wait until a patient is legally determined about to die when they can provide stabilizing treatment that would prevent someone from reaching death’s literal door. Oral arguments for the EMTALA case will be heard in just a couple weeks on April 24.
The Supreme Court process is an odd one… over the course of the year they decide whether or not they will take up cases, they’ll hear arguments in the cases they take, and then on pre-determined “decision days” they’ll release their decision in the case. As we saw with the Dobbs decision, cases with big implications are often saved to be published for the very end of the session in June.
So here we are, just a couple months from June, with two enormous attempts to hack at our livelihoods being considered once again.
What are the potential outcomes?
There are many nuanced possibilities, of course, because law is never all that applicable to real-life needs and experiences. But in the case threatening access to mifepristone we could either see no-change to access to the medication or we could see the Court force the FDA to revert back to an earlier version of guidelines for mifepristone that would make it no longer accessible via telehealth (how so many folks are accessing care these days in the face of restrictions and bans). In a worst case scenario the Court could act irrationally and ban mifepristone all together (if this very unlikely outcome were to happen, people would still have access to another regimen of medication abortion care using only misoprostol). In the EMTALA case, the Court could either listen to the horrors that health care providers have seen in emergency departments across the country and protect the right to life-saving abortion care, or it could turn its backs on people in life-or-death situations around the country.
We have so much still at stake, even if it feels like so much was already lost. I’ll provide another update on these cases once we get the decision in June, but for now it’s important to know that the state laws in your state still stand. Your abortion appointments today or tomorrow or next week are still valid. Your local abortion clinic is still there for you. Advocates are still there for you. And as people are self-managing their abortion care with medication abortion more frequently than ever, it’s important to have access to information to protect yourself legally. I recommend saving the emergency number for the Repro Legal Defense Fund in your phone (844-868-2812) in case you or someone in your community needs advice on how to navigate increased surveillance and punishment by the police state on pregnant people, not matter the outcome of their pregnancy. And just support the Fund in general… their services are completely lifechanging for people targeted by these inhumane restrictions and bans.
So that’s that on that. Always here to listen, to be in conversation, and to answer questions. The best way we can keep going through this state of bizarre dystopian attacks on our freedoms are to stay informed and stay together.
I’m on my second listen through of Cowboy Carter, the new Beyonce album. It’s… so fucking genius. The references to other artists, other music, going beyond country, and then the masterful storytelling layering she does across time between albums and concepts and lifetimes… she’s so fucking good. It is a clear build from introductory ballads to closing dance anthems. It’s everything. As always.