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Opinion Red states, don’t expect your forced-birth laws to go unchallenged

Abortion rights supporters demonstrate outside the House chambers in the Indiana Statehouse in Indianapolis on Aug. 2. (Cheney Orr/Reuters)
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Indiana and Idaho, two deep-red states, are now front and center in the battle against forced-birth laws. Those who seek to deprive women of their fundamental rights got a rude awakening from the stunning pro-choice victory in Kansas and the Justice Department’s lawsuit against Idaho’s forced-birth law.

Indiana is poised this week to pass one of the most draconian forced-birth laws in the country. Doctors in the state have been providing abortion for Indiana residents and for women traveling from forced-birth states. That will end if the bill passes.

The bill in its current form would ban abortions from the moment of conception unless “necessary to prevent a substantial permanent impairment of the life” of the woman, or unless performed within 10 weeks of a pregnancy resulting from rape or incest (before many women know they are pregnant). As Katie Watson, a medical ethics professor at Northwestern University, tells me, “It would be barbaric for Indiana to partner with rapists and further traumatize crime victims.” She adds that depriving victims access to abortion would be “a second assault on children and women, this time by the state that is supposed to protect them.”

Moreover, since terms such as “substantial impairment” are not medical terms, doctors will be left to puzzle out what is “necessary” to meet the standard. For example, does increased risk of death from hypertension count?

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The debate in the state legislature was illuminating for Katie McHugh, an Indiana OB/GYN. “While lawmakers prattled on about the future life a fetus might have, there was no talk about the person who is pregnant,” she tells me. "What about the pregnant person’s life and all the important things they’ve already done?” Since the Supreme Court decided women lack fundamental rights, it’s unsurprising that legislators are not focusing on the trauma and suffering they are inflicting.

If Indiana’s ban passes, women there will join the thousands of Americans in other states stranded and without access to the procedure. McHugh says that on a single day, she provided abortions for patients from Alabama, Tennessee, Ohio, Kentucky and Texas. If the ban passes, she will need to send them and her Indiana patients who don’t qualify for a exception elsewhere, likely Illinois. She has applied for a medical license in Illinois so she can treat patients there. Even still, Illinois clinics will struggle to absorb the thousands of women who will arrive for abortion care.

Jason Willick

counterpointThe democratic lessons of Kansas’s pro-choice upset

In light of the Kansas constitutional initiative’s resounding defeat, Indiana lawmakers should ask themselves: Do they really want to be on the wrong side of an issue that drives so many pro-choice voters to the polls?

Meanwhile, the Justice Department on Tuesday sued Idaho for its near-total abortion ban, arguing it violates the Emergency Medical Treatment and Labor Act, which requires emergency rooms to screen, treat and stabilize patients in medical emergencies. The Justice Department argues that when a pregnant woman’s health is in serious jeopardy, the doctor is obligated under federal law to perform the abortion. But that doctor would be in violation of Idaho’s law, which holds physicians criminally liable for providing abortions.

In announcing the lawsuit, Attorney General Merrick Garland affirmed, “Any state law that prevents a hospital from fulfilling its obligations under EMTALA violates federal law.” He also suggested this won’t be the last suit: “On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom. That is what we are doing, and that is what we will continue to do.”

The complaint explains that Idaho’s statute is designed to snare unwary doctors and chill performance of necessary medical care: “The mere performance of an abortion — even in an emergency, life-saving scenario — would subject a provider to criminal prosecution and require the provider to raise one of the law’s narrow affirmative defenses at trial.” That’s right: The state makes it the responsibility of the doctor to prove it is not an illegal abortion.

Moreover, the two affirmative defenses are so tightly drawn as to subject nearly all doctors to the threat of conviction, loss of license and jail time. The complaint explains:

Specifically, the accused physician would have to prove to a jury: (1) that “[t]he physician 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,” or (2) in cases of rape or incest, that the woman, or, if a minor, the woman or her parent or guardian, “has reported the act of rape or incest to a law enforcement agency” and the physician, prior to performing the abortion, received a copy of a police report (or, in the case of a minor, a police report or report to child protective services) regarding “the act of rape or incest.”

Imagine a woman who has had an incomplete miscarriage and is at risk of infection and hemorrhaging. Who knows whether an abortion would be “necessary to prevent death”? Doctors might say, well, she might not die, so better not risk conviction and loss of license by providing the appropriate treatment. And if the rape victim or incest victim — even a child — hasn’t made a police report, she is out of luck. She’ll have to endure the trauma of forced pregnancy and labor, no matter the impact on her physical and mental health.

The Justice Department’s action serves as a shot across the bow of all states that passed or are considering abortion bans. Forced-birth extremists better be prepared to defend their monstrous legislation in court — as well as before voters in November.

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