By Mary Anne Franks for Ms. Magazine.
Broadcast version by Alex Gonzalez for Northern Rockies News Service reporting for the Ms. Magazine-Public News Service Collaboration
People end up in emergency rooms for a variety of reasons. They’re having trouble breathing. They’ve suddenly developed chest pains. They’re bleeding uncontrollably. They’ve fallen off a roof, they’ve crashed their car, they’ve overdosed, they’re suicidal, they got stabbed in a fight, they got shot by police.
Some people who need emergency services are poor, or have no insurance, or are in the country illegally, or have committed a crime. Under the federal Emergency Medical Treatment and Labor Act (EMTALA), they are all entitled to receive emergency care. This law is based on a simple principle: Hospitals shouldn’t be allowed to let people die based on who they are, how much they can pay, or what they have done.
On April 24, the Supreme Court will hear oral arguments in Moyle v. U.S., a case that will determine whether individual states are allowed to exclude a single group from this basic protection: pregnant women. The state of Idaho claims that it has the right to forbid pregnant women and girls—and only pregnant women and girls—from receiving emergency care that could save their lives.
How, and why, would a state want to do this?
First, the how: In 2022, the Supreme Court ruled in Dobbs that forced childbirth does not violate the Constitution. This allowed Idaho’s 2020 “Defense of Life Act,” a draconian anti-abortion law, to go into effect. According to the law, anyone who performs an abortion faces imprisonment of up to five years in prison. Healthcare professionals who perform abortions will also have their professional licenses suspended or revoked permanently.
This puts the state law directly in conflict with federal emergency care law. EMTALA requires Medicare-funded hospitals (which most hospitals are) to provide medically necessary stabilizing treatment to any patient with an “emergency medical condition.” An emergency medical condition is one that, in the absence of immediate medical attention, is likely to cause “serious impairment to bodily functions,” “serious dysfunction of any bodily organ,” or otherwise puts the health of the patient “in serious jeopardy.”
Pregnancy complications are a common reason for emergency care visits, and the medically necessary stabilizing treatment necessary to prevent serious injury or death to women and girls experiencing those complications sometimes includes the termination of the pregnancy.
Given that an abortion is sometimes the only medical treatment that will prevent death or serious bodily injury to women, a more accurate title for Idaho’s abortion law would be the “Let Women Die Act.” But as seen in the majority decision in Dobbs and the arguments propounded recently by the Alliance Defending Freedom in the mifepristone access case, forced birth proponents are rarely candid about their necropolitical agenda. Defenders of Idaho’s law instead feign outrage at the suggestion that the law will kill women, pointing to the law’s exception for abortions performed by a physician who “determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”
Idaho insists that the law’s exception for abortions necessary to save the life of the mother means that there is no conflict between it and federal law. But as the Department of Justice pointed out when it sued to stop the Idaho law from being enforced with regard to EMTALA’s requirements, federal law requires emergency medical care necessary to prevent serious injury, not just death. The federal law does not authorize the withholding of essential medical treatment to patients who are only close to, but have not yet arrived, at death’s door.
What is more, as countless medical professionals have attested, the line between serious bodily injury or death is rarely precise. It is often difficult, if not impossible, to predict the exact moment that a serious medical condition becomes a life-threatening one.
As the National Women’s Law Center detailed in its amicus brief in the case, “No clinical bright line defines when a patient’s condition crosses the lines of this continuum. At what point does the condition of a pregnant woman with a uterine hemorrhage deteriorate from health-threatening to the point that an abortion is ‘necessary’ to prevent death? When is it certain she will die but for medical intervention? How many blood units does she have to lose? One? Two? Five? How fast does she have to be bleeding?”
The recognition that serious bodily injury and death are so closely related as to be nearly indistinguishable has long been reflected in U.S. law. At common law, a person could be convicted of murder not only if he intended to kill but also if he intended to inflict “grievous bodily injury.” The law of self-defense generally allows a person to use deadly force when facing an imminent threat of death or serious bodily harm, not only to herself but to others.
Significantly, Idaho’s self-defense law specifies that a person is not required to wait for the danger to become fully apparent before acting: “The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.”
Unless, of course, the person in danger is a pregnant woman.
Mary Anne Franks wrote this article for Ms. Magazine.
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By Lauren Rankin for Yes! Media.
Broadcast version by Farah Siddiqi for Ohio News Connection reporting for the Yes! Media-Public News Service Collaboration
Donald Trump didn't deliver on many of his campaign promises as president, but he did achieve one of his administration's stated goals: overturning Roe v. Wade. After appointing three of the five justices who ended the constitutional right to an abortion and unleashed a growing tragedy, Trump has bragged about his role in undoing nearly 50 years of reproductive health care precedent.
But as we face the prospect of another potential Trump presidency, the architects of Project 2025 have made it clear that overturning Roe was just the first in a multistep plan to eradicate access to safe abortion. Though the Republican Party removed a federal abortion ban from its official party platform, there's something more sinister that's been hiding in plain sight for 150 years.
The Comstock Act, signed into law in 1873, made it a federal offense to disseminate contraceptives, abortifacients, and information about either across state lines or through the mail. Named after Anthony Comstock, an anti-obscenity crusader who inspired the title of the biographical book The Man Who Hated Women, the Comstock Law had far-reaching tentacles. Even married couples who used contraception could be sentenced to up to one year in prison.
Over time, various challenges to the Comstock Act, including United States v. One Package in 1936, which made it possible for physicians to distribute contraception across state lines; Griswold v. Connecticut in 1964, which established the constitutional right to contraception; and, of course, Roe v. Wade in 1973, essentially made it unenforceable. However, the law was never repealed and has instead become a "zombie law," a term used to describe laws still on the books that have been overruled by other legal cases. Take, for instance, Arizona's 1864 abortion ban, a zombie law that became legally viable after the Supreme Court struck down Roe v. Wade. Though Arizona's law was repealed in September, it still remained on the books long enough to instill fear in those seeking and providing abortions in the state.
Now, after the fall of Roe, Project 2025 plans to revive the zombie Comstock Act and make it workable. Since it's already on the books, Congress isn't required to pass the Comstock Act. Instead, a president and appointed judges can choose whether to enforce it. Project 2025 architects hope that, if given another term, Trump will do just that.
A Significant Threat to Abortion
Abortion bans are deeply unpopular in the U.S. Since Roe fell in June 2022, voters have supported abortion rights every single time the issue has been on the ballot, even in traditionally conservative states like Kansas, Montana, and Ohio. While a national abortion ban could threaten congressional seats for Republicans, it would also require control of both houses of Congress and the executive branch, a higher threshold than simply winning the presidency. So, it seems, the architects of Project 2025 have developed a workaround to meet their aims.
After Roe was overturned, President Joe Biden's Department of Justice issued guidance about whether the Comstock Act could be used to criminalize someone who receives mifepristone and misoprostol through the United States Postal Service. "We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully," the memorandum opinion states. "Federal law does not prohibit the use of mifepristone and misoprostol," the memorandum continues. "Indeed, the U.S. Food and Drug Administration ('FDA') has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy."
But under a Trump presidency, the DOJ would likely have a different view, especially since Project 2025 explicitly calls for the enforcement of the Comstock Act "against providers and distributors of [abortion] pills."
Additionally, the spate of radical, far-right judges Trump appointed during his first term have already proven their willingness to ignore existing case law to curb access to abortion. In 2023, U.S. District Judge Matthew Kacsmaryk, who has deep ties to the anti-abortion movement, defied court precedent to suspend the approval of mifepristone. "The Court does not second-guess FDA's decision-making lightly," he wrote in his decision. "But here, FDA acquiesced on its legitimate safety concerns-in violation of its statutory duty-based on plainly unsound reasoning and studies that did not support its conclusions."
If Trump is able to appoint even more partisan judges like Kacsmaryk to the federal bench, it's possible they would use the Comstock Act to criminalize folks sending or receiving mifepristone and misoprostol (or even information about it) through the mail. "If the Comstock [Act] were enforced, it would seriously impact the work we do," says Sneha S. Nair, partnerships coordinator at Women First Digital, a collection of online platforms that provides abortion and contraception information and services. "We rely on digital platforms to share [sexual and reproductive health] content worldwide, and restrictions like the Comstock [Act] could lead to significant censorship and suppression of vital information."
But even the threat of Comstock being enforced is concerning for abortion advocates and providers. "What people believe the law to be is just as important, if not more so, than what the law actually is," says Farah Diaz-Tello, senior counsel and legal director at If/When/How, a legal organization that aims to transform the policy landscape to make reproductive justice a reality. "When people have to second-guess what their options are and they just know that there's a sort of vague and looming fear of criminalization ... that is not a risk that everybody has the privilege to tolerate."
For Black and Brown people, who have already borne the brunt of criminalization for pregnancy outcomes, even the threat of an enforceable Comstock Law could be enough of a deterrent to prevent them from seeking necessary care.
Refusing to Be Silent
While Project 2025's architects may be banking on the Comstock Act, they will have to contend with a network of providers and advocates refusing to put the genie back in the draconian bottle. For example, Shout Your Abortion's post-Dobbs campaign, "Fuck SCOTUS, We're Doing It Anyway," promotes information about and access to medication abortion online.
Similarly, the Four Thieves Vinegar Collective, a DIY medical collective, has literally turned an information card about medication abortion into medication abortion. Embedded in the cards are three doses of misoprostol, which can be used on its own to induce an abortion, and since it's a paper card, the pills are harder to detect.
Others believe the best way to combat Project 2025's insidious ploy to use the Comstock Act as a backdoor abortion ban is to refuse to be cowed into silence about the revolutionary power of being able to terminate a pregnancy in your own home.
Today, the majority of abortions in the U.S. are induced through medication, most often a combination of the drugs mifepristone and misoprostol. Telehealth for abortion care, in which a provider virtually prescribes these drugs to patients, has become increasingly popular, even in states with abortion bans.
"The number of people served through telehealth has just grown exponentially since the pandemic," says Elisa Wells, co-founder and co-director of Plan C, which promotes access to medication abortion online. "[When people find out] that you can get an abortion by the mail, which is a really new idea ... they think, 'Wow, that's amazing!'"
Research from the Society for Family Planning's WeCount project revealed that in the second half of 2023, more than 40,000 people in states that restrict telehealth or ban abortion were able to receive medication abortion from providers in states that have "shield" laws that protect providers from being criminalized. Plan C's website traffic has surged since Dobbs; Wells says they now receive approximately 2 million visitors annually.
There's also the option of self-managing abortion with abortion pills. For people in states with severe restrictions or bans, self-managed medical abortion with pills has become an option for many who otherwise wouldn't have access to abortion care. Plan C, for example, showcases many sites that prescribe and mail medication abortion to folks directly, including Aid Access and Hey Jane.
There is a vast digital ecosystem of medication abortion information and services that abortion seekers can have mailed right to their door-unless Project 2025 goes into effect.
"What we are most concerned about is that people have access to accurate information about how to get the pills, how to use the pills, and the fact that in some states there might be legal risks associated with using the pills," says Wells. "Every day is a risk assessment, and people can make good decisions about their lives. It's not for me to say about somebody else's life. What's the best choice for you?"
Lauren Rankin wrote this article for Yes! Media.
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A recent survey of OB/GYNs in the state shows that doctors are concerned and confused by Texas' abortion ban. 76% of doctors surveyed say they feel like they can't practice medicine according to best practices and evidence-based medicine, and 60% of those who responded fear legal repercussions.
Dr. Damla Karsan, an ON/GYN with Comprehensive Women's Healthcare in Houston, said the guidelines are not clear.
"The question is how sick does a woman have to be, how close to death does she have to be to be confident that the state will deem that the intervention was warranted? There's just really no clarity around this," she said. "It's a very murky area."
Texas adopted the "heartbeat bill" in 2021 that bans abortions as early as six weeks into a pregnancy. The legislation makes exceptions for a life-threatening physical condition, or a serious risk of substantial impairment of a major bodily function.
Those in the medical field say they're concerned the abortion law will create a shortage of OB/GYNs in the state. Many of those surveyed say they're considering retiring early or leaving Texas because of the legislation and 57% of resident physicians say the abortion law is relevant to their decision about staying in the state after residency. The law will negatively impact low income and rural patients, Karsan said.
"We already have one of the highest maternal mortality rates, and we have some staggering numbers of counties in the state of Texas that don't even have an OB/GYN, and so that's going to get worse. And as usually happens it's those individuals that have the least access to care, are going to be hurt the most," she continued.
Karsan has been involved in two legal challenges to the abortion ban, including the case of Kate Cox.
The Houston mother of two received national attention after traveling to another state to obtain an abortion after it was determined her third child would not survive, prompting one message from Karsan for Texas lawmakers.
"Abortion is healthcare and healthcare decisions are complicated, and those decisions really should be left to individuals who have years and years of training to be able to navigate this space. And, this is not political; this is medical," she argued.
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In the race for New Hampshire governor, the candidates' positions on reproductive rights could be a deciding factor.
Pollsters have said it is a dead heat between Democrat and former Manchester Mayor Joyce Craig and Republican former U.S. Sen. Kelly Ayotte, and both claim to champion women's health.
Kayla Montgomery, vice president of public affairs for the Planned Parenthood New Hampshire Action Fund, said Ayotte voted for a national abortion ban while in the Senate and supported the Supreme Court overturning Roe v. Wade.
"We can't put our trust in someone who has been against abortion rights and against reproductive freedom her entire career," Montgomery contended.
Ayotte said if elected, she would not change the state's current law, which allows for abortions up to 24 weeks of pregnancy, or back new restrictions.
Craig said she would work to codify abortion rights into the state constitution. New Hampshire is the only New England state without an explicit legal right to abortion care.
Ayotte said her opponents are "politicizing abortion to win votes" but her previous board position with the right-leaning nonprofit Winning For Women is raising questions about her pivot to a more moderate approach. The group has spent millions backing anti-choice candidates for office and Ayotte herself backed bills to remove insurance coverage for birth control.
Sen. Debra Altschiller, D-Stratham, said Ayotte has grown out of step with New Hampshire voters.
"She instead decided to get on board with an extreme right-wing agenda on limiting reproductive health care for the people of her own state," Altschiller asserted. "We remember."
Altschiller added reproductive freedoms are under attack at the State Capitol, despite a majority of voters backing abortion rights, and thinks Craig would serve as a firewall in the governor's office to ensure protections. She noted Craig has also committed to nominating pro-choice justices to the state Supreme Court, where there is a retirement coming up in 2026.
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