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Susan Estrich: Abortion politics: The new narrative

From the commentary: What is significant about the Kansas vote is that a very red state turned out to reject the kind of ban that Idaho and half the other states are likely to adopt. Or, perhaps, not so likely, knowing that voters may reject such bans and the Justice Department is ready to challenge them. If people start thinking about abortion in more realistic terms, as a necessary medical procedure and, in many cases, a life-saving one, the results change, as they did on Tuesday. And perhaps on more Tuesdays to come.

Abortion-rights supporters react as early polls showed that voters rejected a state constitutional amendment that would have declared there is no right to abortion, at a Kansans for Constitutional Freedom election watch party in Overland Park, Kansas, U.S. August 2, 2022.
Abortion-rights supporters react as early polls showed that voters rejected a state constitutional amendment that would have declared there is no right to abortion, at a Kansans for Constitutional Freedom election watch party in Overland Park, Kansas, U.S. August 2, 2022.
Evert Nelson/USA Today Network via REUTERS.<br/><br/>
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On the same day — Aug. 2 — that Kansas (yes, Dorothy, it was Kansas) voted against allowing the legislature to ban abortion, the Justice Department announced that it was bringing suit against Idaho, which has the near absolute bar that Kansas rejected.

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In explaining the Justice Department suit, Attorney General Merrick Garland emphasized that federal law, applicable to every hospital in the country because they all take federal funds, prohibits denial of emergency medical care to patients in life-threatening situations. That includes women facing medical emergencies like septic and ectopic pregnancies, which could literally kill them if they don't have a life-saving abortion. Under the Supremacy Clause of the Constitution, when state and federal law conflict, federal law governs. Thus, Garland argued, the Idaho law cannot withstand scrutiny.

The ban on turning away patients facing life-threatening emergencies was originally intended to prohibit hospitals from turning away sick patients who did not have insurance. But there is no reason for it not to apply as well to patients who are turned away for political and not medical reasons.

Under the Idaho law, all a prosecutor needs to do is show that an abortion has been performed, and then the burden is on the physician to prove that it was done to save the life of the mother. A lawsuit already pending in Idaho, brought by a family physician and Planned Parenthood, alleges that the defense for medical emergencies is vague and difficult to interpret, since some conditions may kill a pregnant woman but don't always. Doctors should not have to fear for their licenses or their livelihood when they take steps to save their lives. And pregnant women should not have to fear the consequences, or face hostile interrogation, when they go to the hospital. According to abortion rights advocates, there is already anecdotal evidence of women being turned away from hospitals because of abortion bans that should not be applied to them.

The specter of a pregnant woman being denied life-saving care is the new picture of the anti-abortion movement. In that sense, everything has changed.

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Literally since Roe was first decided, the abortion debate has been dominated by the phony fiction of women using abortion as a means of birth control or sex selection; that having an abortion was no different than going to the dentist; even that "legitimate victims" of rape and incest would not get pregnant and need abortions. None of it was ever true: I have never heard a woman who had an abortion compare it to a trip to the dentist, an analogy I heard hundreds of times over the years. As for "abortion on demand," the supposed target of so many anti-abortion protests, the concept has always been absurd: In a nation where half the counties don't even have abortion providers, the very notion of abortion on demand is an oxymoron at best.

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What is significant about the Idaho suit is that it is based on an entirely different picture of abortion — a picture that recognizes abortion as a medically necessary treatment for women facing life-threatening emergencies.

What is significant about the Kansas vote is that a very red state turned out to reject the kind of ban that Idaho and half the other states are likely to adopt. Or, perhaps, not so likely, knowing that voters may reject such bans and the Justice Department is ready to challenge them. If people start thinking about abortion in more realistic terms, as a necessary medical procedure and, in many cases, a life-saving one, the results change, as they did on Tuesday. And perhaps on more Tuesdays to come.

Susan Estrich can be reached at sestrich@wctrib.com .

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Related Topics: COMMENTARY
Opinion by Susan Estrich
Susan Estrich is an American lawyer, professor, author, political operative, and political commentator. es. She can be reached via sestrich@wctrib.com.

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