Archives for 2024

I’ve been reading Slate law and politics writers Dahlia Lithwick and Mark Joseph Stern for years now. They’ve chronicled the conservative-led hollowing out of the U.S. Supreme Court about as well as anyone could, in my opinion. They write about the court’s decline with a horrified detachment that is reminiscent of a steely safari guide describing a pack of braying hyenas taking down a wounded elephant.

But in their latest piece, the veteran Slate editors achieve a level of cold fury I can’t recall seeing before in their work. The article addresses the contemptuous disregard red state officials and judges are now displaying toward pregnant women:

Any woman who seeks to terminate a pregnancy is wicked, any woman who miscarries is evil, and any woman who—for reasons of failing health, circumstance, or simple bad luck—does not prove to be an adequate incubator deserves whatever she gets. Every unborn fetus is the priority over the pregnant person carrying it and must be carried to term at all costs. So goes the moral calculus of the death-panel judges who now determine how to weigh the competing interests between real, existing human life and a state’s dogmatic fixation with a fetus that, by definition, must be seraphically innocent.

One need only look at red states’ scramble to defend their draconian abortion bans to witness this perverse moral hierarchy in action. In the wake of Roe v. Wade’s demise, the victims of these laws are no longer hypothetical: They are flesh-and-blood women, directly and viscerally injured by the denial of basic health care, and some of them have even had the gall to fight for their rights. Republican attorneys general have responded with furious indignation, openly demeaning these women as liars, wimps, partisans, and baby killers.

If that sounds hyperbolic, read the whole thing, and you’ll find Lithwick and Stern’s fury is fully justified. They cite the hideous legal harassment of an Ohio woman who miscarried as well as corrupt Texas AG Ken Paxton and the state’s supreme court’s papal decree that blocks local emergency care access.

They point to Idaho AG Raúl Labrador’s grotesque insistence that “women forced to carry dangerous, nonviable pregnancies merely ‘disagree with the legitimate policy choices made by the Idaho legislature.’” Lithwick and Stern also call attention to a particularly egregious filing by Tennessee’s Republican AG:

(AG Jonathan T.) Skrmetti has been fighting a lawsuit filed by a group of Tennessee women denied emergency abortions under the ultranarrow medical exception to that state’s ban. The women plaintiffs suffered an appalling range of trauma, including sepsis and hemorrhaging, because they could not terminate their pregnancies. The attorney general’s response to their complaint is a scathing, shockingly personal broadside against the victims of the ban. He accused them of attempting to draw “lines about which unborn lives are worth protecting” by imposing a medical exception “of their own liking.” He mocked them for asserting that ostensibly minor conditions like “sickle cell disease” might justify an abortion. And he insisted that the lead plaintiff, Nicole Blackmon, lacks standing, because she underwent sterilization after the state forced her to carry a nonviable pregnancy and deliver a stillborn baby. The attorney general viciously suggested that, if Blackmon really wanted to fight Tennessee’s ban, she could have tried for another doomed pregnancy.

Perhaps Skrmetti deserves half credit for candor, because he did not even pretend to treat these plaintiffs like compelling moral human beings. Instead, he wrote that Tennessee may allow different standards of care for pregnant and nonpregnant women. A pregnant woman, the attorney general averred, may be refused a treatment if it “has the potential to harm unborn lives—an issue not implicated” when treating nonpregnant women. “No equal-protection rule,” he concluded, “bars lawmakers from acting on that difference to protect unborn babies.” In other words, once a woman is pregnant, she becomes a vessel for “unborn babies,” giving the state authority to cut off her access to urgently necessary health care.

Jesus. Under Tennessee’s outlier system, Skrmetti was appointed to an eight-year term as a “nonpartisan” AG by the state’s supreme court in 2022, so he’ll be crapping on Tennesseans’ rights for the better part of the next decade. Skrmetti is another Harvard Law grad, by the way. The wrap-up from Lithwick and Stern:

The mother will never be able to show that she wanted the pregnancy enough, took good enough care, made every correct predictive decision. And as such, the state will happily dismiss her interests as not only irrelevant, but self-serving, greedy, and dishonest. That it’s being said aloud in courtrooms, in pleadings, and in affidavits should not surprise anyone.

The pregnant woman has always been the fallen and the damned. Now, according to red states, it’s acceptable—necessary, even—to ensure that she knows this, from the very moment of conception until the moment she loses the power to make any choices about how she gives birth. Even if she dies, she was forever that which stood in the way of flawless, purest life.

I wish Lithwick and Stern were wrong, but it’s there in the documents, in black and white. We know about the cases they cite because those matters wound up in court, but how many women will die without challenging substandard care in the legal system? That number may be unknowable. But this we know: No matter how high the toll in women’s lives and health, it’s acceptable to red state Republican officials.

Open thread.

“The Fallen and the Damned”Post + Comments (113)