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Biden Directs Hospitals to Perform Abortions in Cases of Emergency

The letter stressed that federal law supersedes state-level abortion bans in life-threatening cases.

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Following a relatively timid executive order to protect abortion access in some capacity last week, on Monday, President Joe Biden directed hospitals to provide abortion care if the pregnant person’s life is at risk, even in states where abortion is almost totally banned.

“Under the law, no matter where you live, women have the right to emergency care—including abortion care,” Health and Human Services Secretary Xavier Becerra wrote in a letter to health care providers. The letter also stressed that federal law, namely the Emergency Medical Treatment and Labor Act (EMTALA), supersedes state-level abortion bans in emergency cases. Becerra continued, “Protecting both patients and providers is a top priority, particularly in this moment. … We will continue to leverage all available resources at HHS to make sure women can access the life-saving care they need.”

The majority of the states that have already banned abortion in the immediate aftermath of the overturning of Roe v. Wade last month offer no exceptions for rape. But the 13 states with trigger laws to ban abortion all already have exceptions to save the life of the pregnant person. Thus, it’s not entirely clear what the advisory from the Biden administration brings to the table, especially when—much like rape exceptions that require victims to report their rape to law enforcement—exceptions for risks to the pregnant person’s life have often been unhelpful.

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The problem with these exceptions, doctors and medical experts have said, is their vagueness: What constitutes a threat to the pregnant person’s life, and at what point should doctors intervene? The lack of clarity in how we define risks to the pregnant person’s life can delay care until the point that it’s too late, or exacerbate other health risks, as we’ve seen in countries with national, near-total abortion bans that also ostensibly allow for emergency exceptions.

In Poland, where abortion is banned, an exception like this hasn’t stopped several pregnant women from dying from pregnancy-related complications—because doctors acted too late, or believed they could face prison-time if they offered abortion care when the pregnant person’s life wasn’t in imminent danger. In January, one Polish mother of three died after being forced to carry a dead fetus for a week. Louisiana doctors told Jezebel last week that they fear they “could go to prison just for handling a miscarriage as I always have.”

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Image for article titled Biden Directs Hospitals to Perform Abortions in Cases of Emergency
Photo: Scott Olson (Getty Images)

“We’ve taken the Hippocratic oath to do no harm, and these types of laws and this type of language actually do harm,” Dr. Melissa Simon, vice chair for research in the department of obstetrics and gynecology at Northwestern University Feinberg School of Medicine, told ABC News last month. “I do not—nor do my patients want me to—stop what I’m doing and think about what the judge would do: ‘Will the judge sentence me to jail if I were to perform an abortion?’”

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Other doctors told the outlet that an exception to save the pregnant person’s life might “sound like it’s straightforward,” but isn’t in practice. “When I see patients, for instance, who have a major cardiac problem… at the moment they’re fine. But as they get further into pregnancy, that’s going to put their life more and more at risk. Do I have to wait until they’re on death’s doorstep, or can I intervene to prevent more harm and more damage to them?”

The U.S. already has the highest maternal mortality rate among wealthy nations, and Black pregnant people are three times more likely than white pregnant people to die from birth or pregnancy-related causes. In addition to severely lacking access to reproductive health care—which could have something to do with the rapid shuttering of clinics due to state abortion laws—Black pregnant people are systematically dismissed and gaslighted by health care providers about their pain, their pregnancies, and their experiences within their own bodies.

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Research has shown many medical students even hold the racist belief that Black people feel less pain. In other words, it’s not exactly a mystery who will and won’t be believed when pregnant people express concerns about their safety to their doctors.

Experts and advocates have long warned that people will die because of the overturning of Roe, despite how self-managed abortion with medication—even when illegal—is highly medically safe. Instead, people will die due to pregnancy complications when doctors are afraid to provide life-saving care, or don’t know when they can legally intervene to save someone. People will die when they can’t get prescriptions for certain life-saving medications that are deemed “abortifacients.” They’ll die when they become pregnant, can’t get abortion care, and their abusive partners don’t want to have kids—a heartbreaking outcome we’re already seeing, in a country where homicide, often from abusive partners, is a leading cause of death for pregnant people.

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Abortion stigma, or the validation of some abortions for rape victims or people with health complications, but not abortions for other reasons, also inevitably harms pregnant people. It’s the reason we’re in this crisis at all, the reason abortion and pregnancy have long been criminalized, and the reason doctors have withheld care or mistreated pregnant patients, to fatal consequences.

Even prior to the fall of Roe, pregnant people have always lived with threats to their lives all around them, and they’ll continue to face these threats, even with Biden’s advisory to hospitals this week. We should have addressed this a long time ago by making abortion and all reproductive care more accessible, and investing in resources like doulas who are trained to advocate for pregnant people. Instead, we went in the opposite direction.

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But at least—the very least, really—Biden has now made it clear that a woman should never be allowed to die because some people value her fetus more than her own life.