The stakes for women just keep rising

Since the Dobbs decision, we have weathered three years of extreme politicization of abortion rights.

The news comes at such a fast, furious pace, that more and more I find myself numb to that gut-punch feeling it can (and still should) trigger. I had not planned to write on abortion this week, but then read Monday’s New York Times feature detailing the online provision of abortion pills. The reporting on the array of concerns burdening patients who need abortion care truly sent me reeling. In particular, a Texas woman who inquired how to explain to her hometown doctor why she is no longer pregnant if she got an abortion. Her fear of exposure to law enforcement is palpable. Should she forgo medical care until it is safe to show her non-pregnant belly? If she explained the loss as a miscarriage, would medical staff know the difference?

Miscarriage is no longer a foolproof explanation anyway. Women across the country, from Alabama to Georgia to Ohio, have been charged with felonies after pregnancy loss, in numbers that continue to rise, according to the nonprofit Pregnancy Justice. Last week in West Virginia, a county prosecutor went so far as to warn those who miscarry to proactively turn themselves in, telling WVNS 59News those women should “[c]all law enforcement, or 911, and just say, ‘I miscarried. I want you to know.” Because dialing the local precinct to report one’s reproductive status is a sure sign of a free, functional democracy. Right?

The stakes just keep rising. Since the Dobbs v Jackson Women’s Health Organization decision, we have weathered three years of extreme politicization of abortion rights. Last week, the Trump administration reared its head again, this time rescinding guidance about hospitals’ obligation under a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), to provide health- and life-saving abortions to patients experiencing medical crises. “EMTALA has long protected the right to emergency abortion care when it is the necessary treatment to stabilize a patient. Stripping away federal guidance affirming what the law requires will put lives at risk,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “To be clear: this action doesn’t change hospitals’ legal obligations, but it does add to the fear, confusion, and dangerous delays patients and providers have faced since the fall of Roe.”

Among the most ominous anti-abortion legislation emerging in states, lawmakers in roughly one in four have introduced legislation to classify terminating a pregnancy as homicide. No such bill has passed any legislature thus far, but, as I recently pointed out in The Contrarian, that is hardly a reason to write off the effort. Quite the opposite, fringe bills are to be taken more seriously: “The tone set in the states can send a nationwide signal of just how far we can expect politicians to go in defending or degrading democracy. State legislatures also tell the story of the health of American democracy itself: When extreme bills do become law, it is rarely a reflection of the will of the people but rather the deliberate byproduct of gerrymandering and concentration of power.”

Case in point, as ever, is Texas, which already enforces a near-total abortion ban. Still, the legislature saw fit to up the ante by passing a new bill this session. The bill, now awaiting the governor’s signature, could revive a 100-year-old law against “procuring” an abortion without explicit protections for pregnant people. Yes, the same state where just last month a local sheriff searched data from more than 83,000 automated license plate reader cameras to track down a woman suspected of self-managing an abortion.

For those who advocate charging a woman for murder when she has an abortion– a network of self-described “abolitionists” who call the proposals they support “prenatal equal protection” – this agenda is about assigning rights to fetuses, embryos, and fertilized eggs. That’s a dangerous framework that is about “controlling women and undermining the rights all people who become pregnant,” according to Dana Sussman, senior vice president of Pregnancy Justice.

Turns out it is a wildly unpopular idea, too. A new survey from Pregnancy Justice and the National Women’s Law Center reveals that a majority of likely voters oppose policies that grant legal rights to fertilized eggs, embryos, and fetuses. They also oppose the criminalization of pregnancy loss, denial of emergency medical care, and broader threats to reproductive freedom.

Yet here we are, with bills to codify those rights brewing in a quarter of U.S. states this year. Even when they do not succeed, we cannot simply ignore them or hope their proponents call it quits. Rather, this is a prime opportunity to double down on educating people and harnessing public opinion. Professor Kimberly Mutcherson of Rutgers Law (who has weighed in for The Contrarian on IVF policy) offers a bright-ish note to this dark moment, telling CNN, “Women have been criminalized for their pregnancies for decades, frankly, so to the extent that there is a wider and broader conversation about what it means to treat an embryo or a fetus as a person, and the ways in which that diminishes the personhood of somebody who was pregnant, that is in fact a valuable thing…. Maybe this is actually going to bring us to a better space.”

Jennifer Weiss-Wolf is executive director of the Birnbaum Women’s Leadership Center at NYU School of Law. She also leads strategy and partnerships at Ms. Magazine.

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