More Women Are Being Denied Care Because of Abortion Bans

Since the Supreme Court reversed Roe v. Wade, voters in six states have had the opportunity to vote on constitutional amendments regarding abortion. Every time the issue has been on the ballot, voters have turned out to support abortion rights. In California, Michigan, Ohio, and Vermont, voters approved measures that amended the state constitution to protect reproductive rights. In Kentucky and Kansas, voters rejected measures designed to strictly limit access to abortion.

In the years since Roe was reversed, Americans have come to understand that abortion is health care. And that American women suffer when it is denied to them. In January of this year, we learned about Brittany Watts, an Ohio woman who was denied an abortion and charged with abuse of a corpse, a felony, after she miscarried alone and at home.

Nicole Miller, an Idaho woman, had to fly to Utah earlier this year as a failing pregnancy caused her to bleed profusely. But, not enough for doctors in Boise to terminate the pregnancy that was endangering her life. A doctor refused to perform the emergency surgery, telling her that he wasn’t willing to risk his medical career for her. She was able to get a lifesaving abortion out of state, but as more bans go into place, the Guttmacher Institute reports more women are having to travel—and travel further—to obtain needed care. The expense and logistics of arranging travel become a barrier, and more women are exposed to needless suffering and trauma in the name of “pro-life” policies.

Yesterday in Texas, two women filed administrative complaints against hospitals, alleging they were denied emergency care for ectopic pregnancies, which put their lives at risk in violation of federal law.

• Kyleigh Thurman, a Texas woman, alleges she was initially discharged from the hospital and subsequently denied care days later for an ectopic pregnancy. She was finally treated after her ob-gyn pleaded with the hospital staff, but the delay caused her fallopian tube to rupture, she said. According to the complaint, the hospital treated her only after her ob-gyn “pleaded” with staff to provide the necessary care.

  “For weeks, I was in and out of emergency rooms trying to get the abortion that I needed to save my future fertility and life,” she said.

• Kelsie Norris-De La Cruz alleges she was discharged from a Texas hospital without treatment for an ectopic pregnancy. Just hours later she had to be rushed into emergency surgery at a different facility. Medical experts have opined the Texas abortion ban played a role in her denial of care.

The law in question is the Emergency Medical Treatment and Labor Act (EMTALA). It prohibits hospitals from “patient dumping,” and the Biden Administration argued that meant hospital emergency rooms were obligated to provide lifesaving care, including abortion, to save a patient’s life. The Supreme Court ended up ducking the issue, deciding that certiorari in the case, Moyle v. United States, had been “improvidently granted,” meaning it shouldn’t have agreed to hear the case, and sending the case back to the Court of Appeals. That leaves doctors in limbo, not knowing if action would be taken against them in the future for providing patients with care now, while the lower courts consider the matter further.

Texas law permits abortion procedures in the case of nonviable tubal pregnancies. But as Thurman’s lawyers explained in her complaint, “Ms. Thurman’s experience is not isolated. Since Roe v. Wade was overturned in 2022, there have been numerous reports of delays and denials of pregnancy-related care in emergency rooms in states with abortion bans, even for care that is legal under state law. This is because of the extreme penalties for physicians who violate state abortion bans. In Texas, a physician who provides a prohibited abortion faces up to life in prison, loss of medical license, and at least $100,000 in fines.” But the two women’s proceedings are administrative in nature, not lawsuits filed in federal court.

That doesn’t mean the issue of whether EMTALA requires a state to permit doctors to perform an emergency abortion, even if it violates state law, won’t reach the Supreme Court next term. The Justice Department petitioned the Supreme Court to hear a case out of the Fifth Circuit, Becerra v. Texas, where Texas is located, that raises the same issue. Solicitor General Elizabeth Prelogar is asking the Court to decide “[w]hether the Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, preempts state law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.”

The problem has obvious political dimensions. There was speculation that one reason the Supreme Court might have dismissed Moyle was to avoid another disaster on abortion, this one in an election year. Their dismissal of the case left a lower court decision that permitted women to continue obtaining emergency abortions in place. Beyond abortion, even access to birth control is under attack. Some Republicans, as well as the authors of Project 2025, argue for enforcement of the Comstock Act and other measures that could jeopardize the use of contraception, a right Americans have now taken for granted for decades.

As many as 11 states may have abortion-related measures on the ballot this year:

• Arizona, Colorado, Florida, Maryland, Missouri, Nevada, New York, and South Dakota will have measures on the ballot providing at least some guarantee of abortion rights. The period of time during which pregnant people can obtain the procedure varies.

• In Arkansas, advocates are appealing a decision by the Secretary of State that would prevent a measure to protect abortion rights from appearing on the ballot.

• In Montana and Nebraska, measures that would protect abortion have been submitted for approval

Missouri is the most recent addition to the list of states where an abortion measure will be on the ballot. Currently, there is a ban in place. The proposed law would provide broad protections.

Kansas was the first state where abortion made it to the ballot following the Supreme Court’s decision in Dobbs. Two years ago, voters in what people had come to consider a safely conservative state turned out in droves to defeat a measure that would have outlawed abortion.

So, does putting abortion on the ballot in Missouri put the state in play this election cycle? Donald Trump won Missouri handily both times he was on the ballot, beating Joe Biden by over 15% in 2020. In the 2022 midterms, the Republican candidate for Senate, Eric Schmitt, beat the Democrat by over 12 points. It would take a strong reversal—and strong turnout—to create an upset in Missouri.

It’s impossible to predict how the issue will impact both the presidential election and elections for senators and representatives in states like Florida, Arizona, Nevada, and Montana, along with Missouri and the others. But Democratic candidates are feeling hopeful that it will benefit them. Republicans are playing with fire, especially since recent statistics show that an overwhelming percentage of Americans, about 63%, think abortion should always or almost always be available. If more of them turn out and vote, election outcomes in jurisdictions that traditionally vote Republican could be impacted. As more stories mount about women who are suffering needlessly, even losing their ability to have children in the future because they are denied access to reproductive health care, more people are likely to be highly motivated to support measures on the ballot that protect pregnant women.

Elections are always about turnout, and the abortion issue is going to turn out voters in November, possibly in record numbers. Campaigning in New Jersey in May, Donald Trump told the crowd, “I want to thank the six Supreme Court justices, Clarence Thomas, Samuel Alito, John Roberts, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett for having the wisdom and courage to end Roe v. Wade.” Even though he’s tried to distance himself more recently, there’s no avoiding the conclusion that Republicans are the dog that, having chased the car, have finally caught it but don’t know quite what to do with it.

We’re in this together,

Joyce