Terry H. Schwadron
March 6, 2020
The Louisiana case argued before the Supreme Court this week is a test of whether America intends to further limit abortion, without overturning Roe v. Wade.
The June Medical Services v. Russo case, the first to come before the Court with its two Donald Trump appointees, involves a Louisiana law that is likely to force the closing of all but one of the state’s abortion clinics by requiring staff to have admitting privileges at a hospital within a designated distance. It would likely affect 70 percent of women seeking abortions in Louisiana.
Less than four years ago, the Supreme Court struck down a hospital admitting privileges law in Texas that does exactly what the Louisiana calls for. Nevertheless, this Supreme Court agreed to hear a new challenge. The only difference seems political, that is, the replacement of two centrist justices with Neil Gorsuch and Bret Kavanaugh, who celebrate more conservative roots.
At Wednesday’s court arguments, Chief Justice John G. Roberts Jr. futilely asked repeatedly about what makes this case different from the Texas on which the Court already has ruled. The issue again — is it precedent or political appointments that govern here?
Actually, more than 450 similarly laws, targeted regulation of abortion providers, have passed in states over the decade, and the pace is increasing. Most have been argued as protecting the health of patients, and disputed, naturally by patients who see them for what they are — attacks on legal abortion.
I looked around at some of these laws hitting the courts or legislatures in hopes of learning something about the state of our divisions and culture.
I’ve learned about new legal conflicts over criminalizing abortion in Ohio, even if the fetus has a diagnosis of Down syndrome, while Alabama is refusing to protect pregnant workers. And South Dakota is leading several states in threatening medical personnel who affirm a transgender minor’s gender. Even if I don’t agree, years of listening to anti-abortion arguments at least make understandable the idea of laws to protect fetuses.
But together, the underlying themes of these cases underscore that the moral cause of protecting fetuses seems to last only until children are born into an uncertain and chaotic world.
Protecting fetuses but not pregnant women simply makes no sense to me. Threatening to jail medical personnel unless they reject a patient’s sexual orientation sounds plain nuts. And insisting on birthing children who require life-long treatment without proving societal health care and access makes for absolute hypocrisy.
As it turns out, all three of these cases have landed before the ACLU, which is representing a liberal view of them. Without endorsing the ACLU ‘s position or the outcome of these particular cases, it seems useful to step back for a moment and think about what it says that they all are arising in these times. To me, there is a unifying message: We care about more about our different and divided principles and slogans than we do the practical and terribly important impact on Americans. We find ourselves in such a deep political, societal chasm that we cannot get over would-be adherence to causes that we have lost sight of the people who live out those campaigns.
In Ohio, the full Sixth Circuit Court of Appeals said it will hear arguments in a challenge to a state lawcriminalizing abortion if even part of a person’s reason for seeking the abortion is a fetal diagnosis of Down syndrome. It is another in a series of anti-abortion state measures in Ohio and around the country, meant to strip away legalized treatments. Similar bans have been enacted in Arkansas, Indiana, Kentucky, Missouri, North Dakota, and Utah.
Proponents say their goal is to protect the rights of people with disabilities. But this law does not ensure that would-be moms are given information, resources, and support to raise their children — including children with Down syndrome (or any other disability). As outlined in a Hill.com commentary, the bill does not expand access to necessary services or protect any person with disabilities from discrimination in education, housing, employment, medical care, or any other area of life. It does not make it easier for people with disabilities to raise children or protect them from abuse.
Indeed, Ohio has cut funds for children with disabilities, providing less than neighboring Pennsylvania, for example.
It would seem that forcing pregnancy to term in such cases comes with an obligation to help with services. Otherwise, let’s just label it what it is, another of the 400 recent state bills nationwide to restrict abortion.
In Alabama, a woman working as an emergency medical technician for a private company in 2015 asked for a new assignment to avoid having to lift 50-pound packs, as her doctor had prescribed. The company said no, adding that only those hurt on the job are eligible for temporary “light duty” assignments — if there is a dispatcher-type job available.
She took a forced leave of absence for seven months at a financial loss.
According to the ACLU, despite the clear mandates of the Pregnancy Discrimination Act that calls for employer accommodation, current law leaves pregnant workers who want to continue working while maintaining a healthy pregnancy exposed and unprotected. Now Congress is planning to debate a bipartisan Pregnant Workers Fairness Act (H.R. 2694) to make clear that employers must provide reasonable accommodations for pregnant employees — like a stool to sit on, a schedule change, or a break from lifting heavy boxes — unless doing so would place an undue burden on the business. Such bills have been adopted in 27 states.
Again, apart from any outcome in this individual case, what is striking that a society so fixated on anti-abortion efforts would require legal guideposts to recognizing a need to help pregnant workers. Any bus or subway rider knows without having to be told to offer one’s seat to a pregnant rider.
On the first day of its legislative session, South Dakota lawmakers introduced HB 1057, a bill that would make it a felony for medical providers to affirm a transgender minor’s gender. For reasons not very clear, the legislature is focusing on transgender youth playing sports and receiving life-saving medical care, clearly moving to bar transgenders from playing sports by disrupting potential medical care.
This proposed bill would not only compromise health outcomes for transgender youth, but it would lead to the arrest and imprisonment of doctors for treating their patients consistent with prevailing medical standards. The ACLU is lobbying in opposition.
It is not hard to imagine circumstances where withholding medical care might be life-threatening. At the least we can agree that the threat might lead to depression, social isolation, self-hatred, or risk of self-harm. Bills of similar stripe are moving ahead in Florida, South Carolina, Missouri and New Hampshire, among others.
As with abortion, these legislative attacks are not really about medical care. They are attempts to legislate sexual orientation by making sports exclusive to non-trans peers.
Attempting to bar trans students from playing sports, much like deciding on bathrooms, strikes me as a whole lot more concern about the sloganeering involved than care about showing caring and empathy for teens going through tumultuous developmental years.
Maybe we should step back more often and ask whose interests we are seeking to serve.