Health Care/Joan Retsinas

‘Be Afraid, Very Afraid’ of Trump

You think Geena Davis’s admonition to “Be afraid, very afraid” in “The Fly” is absurdly ominous? (Jeff Goldblum turned into a fly.)

Maybe not. Welcome to today’s “Twilight Zone,” aka Conservatism 2024, where the frightening is normal. In an eerie irony, the scions of Barry Goldwater want to shrink government. Let the air, the oceans and the land rot. Let the temperature climb until the Arctic melts. Let poor people wallow in greater squalor, greater hunger. Let us all grow ill. No matter - Uncle Sam is standing down. Thus spake the true-blue conservative mantra.

Except for one exception: women’s bodies. There Uncle Sam demands to be in the examining room, in the doctor’s office, in the hospital emergency department. Thus spake Project 2025, Conservatism’s blueprint.

As with all blueprints, the devil is in the details.

Consider the latest tussle over abortion. What if a pregnant woman comes to an emergency room and must have an abortion to save her life? To save her fertility? To save her health? What if the state law, in all its wisdom, forbids abortion, threatening physicians and hospital staff with criminal censure if they perform one? What if the woman cannot whisk herself to a hospital in a state more accommodating? Does this sound like a “Twilight Zone” episode?

Tune into the discussion of Idaho v. United States, a case that made it to the Supreme Court. When Idaho banned abortions, it came up against the 1986 federal Emergency Medical Treatment and Active Labor Act, which requires that hospitals that receive Medicaid and Medicare funds (virtually all hospitals) preserve the life and health of patients in the emergency department. Who should prevail: the federal government or the state? The woman in crisis is marginal to this legal conundrum. This is state law versus federal law, an obstetric replay of arguments over slavery when southern states asserted their “states’ rights” to trump (what a word) the federal law.

To dive into the innards of the dilemma, Idaho did allow an abortion to save the life of the woman, but not her health. As Justice Elena Kagan noted, in that gap a woman can live, but lose her fertility. The line between grave harm and death can waver. In July 2023, Idaho amended its law to allow abortions for ectopic and molar pregnancies, provided they would save the lives of the mother and the fetus. (Doing nothing would not save the fetus, while doing nothing might kill the mother.)

Fortunately, women can now, temporarily, breathe “phew.” The Supreme Court declined to hear the case. For now, the EMTA stands in Idaho. But the “phew” is marginal. The Supreme Court did not argue the substance of the argument, did not talk about women’s bodies, women’s health, did not delve into the sanctity of the doctor-patient relationship, did not think about hospitals’ liability, which goes both ways. If an emergency room doctor performs an abortion in a state where abortion is illegal, can the state charge the physician and the staff for criminal behavior? If the doctor turns the woman away and she dies, can her family sue the hospital for neglecting her, when they knew she was at risk of dying? How great the risk? All those dreadful conundrums to ponder.

On June 27, 2024, by 6-3 decision the Court dismissed the case on procedural grounds and explicitly stated that the merits of the case—the substance—would not be addressed. This is the second such case the Court has dismissed, citing procedure.

The Supreme Court passed this dismissal, 6 to 3. The dissenters: Clarence Thomas, Samuel Alito, Neil Gorsuch. The substance was not addressed.

So for the moment, until the next procedurally clean case comes along, the hospitals in Idaho can try to help women in crisis.

The Supreme Court interred Roe v Wade into a historical footnote. In the next few years, a new President will probably add one or two more Supreme Court Justices, along with more than a few federal judges. Be afraid.

Joan Retsinas is a sociologist who writes about health care in Providence, R.I. Email joan.retsinas@gmail.com.

From The Progressive Populist, October 1, 2024

Populist.com