Will It Make a Difference in November?
JEFFREY C. ISAAC
for Common Dreams
The
party leadership’s hostility is blatant, and it would be nice to imagine that
it would motivate “independent” and even some Republican voters to see the
danger the party poses to democracy, and to vote Democratic in November.
Whether
this will happen is an open question. But the enmity of
leading Republicans to even elemental forms of decency and common sense is
clearly not in doubt. As Adam Serwer noted back
in 2018, for these people and many of their followers “the cruelty is the
point.”
The
recent grandstanding of Ken Paxton, the far-right Republican Attorney General
of the state of Texas, is a case in point.
Last
week the U.S. Centers for Medicare and Medicaid Services of the Department of
Health and Human Services published a new Guideline entitled “Reinforcement of
EMTALA Obligations specific to patients who are Pregnant or are Experiencing
Pregnancy Loss.”
The
Guideline centered on a simple reminder: “The Emergency Medical Treatment and
Labor Act (EMTALA) provides rights to any individual who comes to a hospital
emergency department and requests examination or treatment.”
The Act in
question, passed by Congress in 1986 and signed into law by President Ronald
Reagan, was designed “to
ensure public access to emergency services regardless of ability to pay.” It
established that any hospital in the U.S. that receives any funding or
reimbursement from Medicare or Medicaid must provide medical care to anyone
seeking emergency treatment, and cannot turn away anyone experiencing an
emergency.
The
new Guideline is perhaps the most important move taken
by the Biden administration to use executive power to limit the damage to
abortion rights caused by the Supreme Court’s June 24 Dobbs decision
that overturned Roe v. Wade.
Its
purpose is rather straightforward: to invoke an existing federal law in order
to prevent hospitals in states banning abortions from refusing to treat women
who will die unless their pregnancies are medically terminated. And the purpose
of the law itself was also fairly straightforward: to prevent hospitals from
refusing to treat patients in danger of dying without treatment.
Pretty
basic, Hippocratic Oath-type stuff, you might think. Perhaps in another time
and place. But not now in the great state of Texas. And so Paxton
has filed a federal
lawsuit challenging the guidance on the grounds that it
requires and indeed compels hospitals and doctors “to perform abortions” in
violation of state law.
Behind constitutional niceties, the Texas suit boils down to this claim: the federal government might seek to exercise its executive power to enforce the right of individual women to receive emergency medical attention, but this mandate should not override the state of Texas’s insistence that if the protection of a fetus is involved, hospitals and doctors must let these women die.
And
this in the name of “right to life.”
There
are surely some contentious constitutional questions related to federalism in
play here, and we can be sure they will be extensively and relentlessly
litigated by Republicans seeking injunctions wherever they can obtain them.
At the same time, Paxton is not acting alone; he is simply the most emphatic of Republican Attorneys General in the dozens of red states currently in the process of enacting draconian restrictions on reproductive freedom, and he is stating very plainly the “logic,” as it were, behind these restrictions: that pregnant women whose lives are in danger might seek medical help to save their lives, but the needs and the claims of these women seeking life-saving abortions must be repudiated by the state in the name of the fetuses that these women are carrying in their bellies.
And women seeking to get around this
restriction, and the health care professionals who treat them, ought to be
treated as criminals.
The
”logic” of Paxton’s position is surely extreme.
But
the extreme to which the far-right Republican party is willing to go to enforce
its patriarchal moralism is emblematic of the party’s hostility toward civil
rights in general and toward the civil rights of women in particular.
Paxton’s
Texas Republican party stands for not simply the right, but the
state-imposed duty of hospitals and doctors to let women at
risk die whenever giving them care jeopardizes the fetuses
lodged in their uteruses.
And
while some Republicans elsewhere are willing to incorporate “exceptions” for
the life of the mother, even these exceptions are
so tenuous and vaguely worded as to render virtually all medical
treatment for high-risk pregnancies liable to criminal prosecution—and thus to
create a climate of suspicion and fear for all pregnant women and the health
professionals who serve them.
“When
in doubt, if not always, let at-risk pregnant women die rather than threaten
the fetuses in their bellies” would seem to be the perverse dictum that Paxton
and many of his fellow Republican Attorneys General seek to defend.
In
Indiana, Republican cruelty has taken a different form, in some ways less
severe, but in other ways more. Here it is not a matter of the lives of
pregnant women that is at stake, but the ability of child rape victims to end
their criminally-inflicted pregnancies.
A
few weeks back the Indianapolis Star ran a story about how “Patients head to
Indiana for abortion services as other states restrict care.” Among
other things, the story quoted Dr. Caitlin Bernard, an Indianapolis
obstetrician-gynecologist who had just performed an abortion on a 10-year-old
rape victim from Ohio whose local OB-GYN could no longer perform the procedure
due to the state’s restrictive “fetal heartbeat” law.
I
will confess that I was as shocked as anyone to learn that the very red state
of Indiana in which I live was actually a kind of sanctuary for young women
rape victims wanting to end pregnancies forced on them by rapists.
Apparently
so too did Indiana’s far-right Republican Attorney General Todd Rokita.
Propelled into action by the right-wing media ecosphere–which immediately weaponized the
story, denouncing it as “fake news” promoted by baby-killing liberals—Rokita
decided that the entire incident warranted an investigation—of Dr. Caitlin
Bernard!
Taking
to the airwaves at Fox News, Rokita described
Dr. Bernard as “an abortion activist acting as a doctor,” and
declared: “we’re gathering information, we’re gathering the evidence as we
speak, and we are going to fight this till the end, including looking at her
licensure, if she failed to report, and in Indiana it’s a crime to not report .
. . “
Having
insinuated that Dr. Bernard’s conduct was criminal—in fact she
acted entirely according to the law, as she always has done–Rokita went on to
explain why he was so determined to investigate: “There’s a strong public
interest in understanding if someone under the age of 16 or under the age of 18
or really any woman is having an abortion in our state.”
Read
those words again. He is clearly speaking about more than a bureaucratic matter
of medical record keeping. He is declaring, ominously, that his job as the
state’s chief law enforcement officer is to monitor every abortion in the state
as if it is a threat to law and order itself (can you imagine him declaring
“there is a strong public interest in understanding if someone under the age of
16 or 18 or really any woman was having a root canal?”)
Not
content to announce his solidarity with Ohio’s draconian abortion law,
Rokita ended with
a proud paean to Trumpism in general: “This is a horrible, horrible scene
caused by Marxists and socialists and those in the White House who want
lawlessness at the border and this girl was politicized—politicized—for
the gain of killing more babies.”
This
is the level to which the Republican party has sunk: the insistence that dying
women and child rape victims must be forced to carry pregnancies to term, and
that health care professionals like Dr. Bernard who seek to serve patients in
need are insidious baby-killers and Enemies of the People in league with
Marxists, socialists, and . . . Democrats! If only Todd Rokita were an outlier.
But he is not.
Public
opinion polls have long indicated that clear majorities support
Roe v. Wade, and much stronger
majorities support a right to an abortion in cases of rape,
incest, and risk to the life of the mother.
The
extremism, the vindictiveness, and the sheer cruelty currently being performed
and promoted by Paxton, Rokita, and other important Republic leaders,
especially at the state level, would seem far beyond the pale of
“mainstream” public opinion. It might even complicate the
campaigns of some Republicans running in swing districts.
But
it remains a bedrock commitment of the Republican party leaders and much of the
party’s base. And, thanks to the Dobbs decision of the
conservative supermajority that this party assiduously elevated to the Supreme
Court, this commitment is now the law of the land.
Turning
this around will be a huge political challenge. And even in the unlikely event
it precipitates a truly massive mobilization of voters in November, things are
going to get a lot worse for a lot more women before they start getting better—if they
ever do.
How
many rape victims must be forced to carry pregnancies to term, how many women
with at-risk pregnancies will have to die, how many doctors, nurses, and
vulnerable women will have to endure harassment and vindictive prosecution,
before the American public wakes up to the egregious injustice that has just
begun to unfold?
Can
elemental human decency, much less civic equality, stand a chance against the
resentment and cruelty that the Republican party so effectively mobilizes? Will
Republicans pay any electoral price at all this November for
the barbaric policy for which they are responsible?
We
shall see.
Jeffrey C. Isaac is
James H. Rudy Professor of Political Science at Indiana University,
Bloomington. His books include: "Democracy in Dark Times"(1998);
"The Poverty of
Progressivism: The Future of American Democracy in a Time of Liberal Decline" (2003), and
"Arendt, Camus,
and Modern Rebellion" (1994).
