Since the overturning of Roe v. Wade, dozens of reports from red states have told of hospitals withholding care from pregnant patients until they are hemorrhaging or suffering catastrophic infections, lest the doctors be prosecuted for providing an illegal abortion. When confronted with these effects of abortion bans, anti-abortion advocates often blame the doctors for misinterpreting the law. There are exceptions for medical emergencies, they say, and it should be easy enough for a doctor to tell when a patient is in deep enough danger to protect her medical team from possible prison time.
This is a mealy-mouthed attempt at misdirection. Health crises are never so predictable and containable; they do not progress in linear fashion, with easy off-ramps at every level of endangerment. But anti-abortion conservatives would never admit this, because it would imperil their entire mythology of pregnancy. So they pretend that their laws will never endanger patients’ lives and issue grave, self-exonerating statements when faced with an anecdote to the contrary.
Most of the time, that is. In Oklahoma, a recent set of chilling dissents from right-leaning justices shamelessly lays plain how the anti-abortion movement justifies its assault on pregnant people’s right to life.
The dissents come from the Oklahoma Supreme Court, which ruled 5–4 this week that the state’s near-total abortion ban must include an exception for cases in which there is “a reasonable degree of medical certainty or probability” that a pregnancy would endanger a patient’s life, whether due to a current medical condition or to one that would likely arise later in the pregnancy. Previously, the justices explained in their ruling, Oklahoma law only allowed exceptions when patients were “in actual and present danger.”
This ruling will hopefully provide clarity to doctors and save some patients from undue suffering and mortal peril. But to the four Republican-appointed conservatives who dissented from the majority ruling, the question of whether women should be forced to risk their lives—for a fetus that, in many cases, would stand no chance of survival outside the womb—shouldn’t have been any of their business.
“The Oklahoma Constitution, as currently worded, does no expressed or hiddent [sic] establish a fundamental abortion right under any circumstance. Any change to that status quo must come from the people or their elected representatives,” writes Chief Justice M. John Kane IV in his dissent.
On the surface, such a proclamation seems sensible and straightforward. But in the context of an abortion ban exception to preserve a patient’s life, Kane’s argument takes on a new tenor. If a patient does not have the right to abortion under any circumstance, unless the privilege is granted to her by the people and their legislators, the people and their legislators could legally force her to die.
If Kane had his way, that possibility would remain on the table. “The unborn have no voice, say, or consideration in the opinion of the majority,” he writes, urging Oklahoma to commence “the thorny medical, philosophical, and practical debate of balancing the developing life of the unborn against the life of the mother.” But, he cautioned, there is no right to any abortion—even a lifesaving one—“to consider as part of that dialogue.”
Justice Dana Kuehn offered a similar take in her own dissent. Even if she believed that the Oklahoma Constitution included the right to a lifesaving abortion, she writes, she would not support the court’s attempt to define what a lifesaving abortion is: “That task belongs to either the people or their legislative representatives.”
Elsewhere in her dissent, Kuehn writes, “The Legislature and people of Oklahoma have had over a century to preserve this exception as a Constitutional right. They have not done so.”
In other words: If Oklahomans want to sentence pregnant women to death, let them go ahead and do it.
The four dissenters in the ruling write that the Oklahoma Supreme Court has no right to make policy; that that’s the job of elected lawmakers. The judges cloak their opposition to the majority opinion in arguments about the difference between a statutory allowance and a constitutional right—in other words, that just because lifesaving abortions were legal when the Oklahoma Constitution was written doesn’t mean a right to a lifesaving abortion can be found in the state constitution.
This is all a sham. Though justices do not write policy, it is the duty of a state Supreme Court to set the bounds of what policies can be enacted in that state. And a right to not die of a preventable pregnancy-related illness or infection could be found in any number of places in the Oklahoma Constitution. It could be found, for instance, as the majority writes, in the provision that reads, “All persons have the inherent right to life.” If women are persons, it stands to reason that their right to live supersedes the potential of a fetus developing inside a person with failing health to someday be born.
But the dissenting justices wring their hands over that provision. Justice Richard Darby chastises the majority for failing to discuss “any rights as they may apply to the unborn child” or “any interest of the state.” (Emphasis his.) “To be clear,” he writes, “the State’s interest is in protecting the life of the unborn child.” In Darby’s society, the state has no position on the life or death of the woman.
Kuehn, meanwhile, believes the problem of an ailing pregnant patient has no clear right or wrong answer. “Under some rare and terrible circumstances, people’s rights to life may conflict,” she writes. “How do we balance that?”
She goes on to describe a situation in which the abortion ban exception might be used: “when a mother must make the horrific decision to choose between her own life and that of her child.” Kuehn calls it “perhaps the most difficult choice a mother will ever have to make.”
There are myriad ways in which a pregnant person might respond to the news that she needs an abortion to preserve her health. Many people surely react with uncertainty, anger, denial, and grief; some may consider continuing a pregnancy even as they face their own imminent demise. But it strikes me as a grievous insult and a profound devaluing of human life to suggest, as Kuehn does here, that a pregnant patient on the brink of death should find it difficult to ask her medical team to save her life.
The foul belief at the heart of anti-abortion politics is rarely stated so blatantly: that a pregnant person’s life is no more valuable than an embryo—and that even if a fetus cannot survive outside her body, a woman might honorably be forced to die, on principle, to “save” it.
