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Woman? Or Human Incubator?

Joyce Vance Oct 8

Amber Thurman was killed by Georgia’s abortion ban. In need of a D&C procedure because of an incomplete medication abortion, care that is safe and effective, Thurman couldn’t get it. She died in a hospital after developing sepsis, leaving behind a young son.

She will not be the last woman to die in Georgia. The state has a ban on abortion after the sixth week, well before most women are even aware they are pregnant. That ban was lifted, temporarily as it turns out, by Fulton County Superior Court Judge Robert McBurney. McBurney was called upon to decide whether the Georgia Constitution protected a woman’s right to abortion care. He concluded that it did, and that “the liberty of privacy” reflected in Georgia’s Constitution means that pregnant women have the right to decide “whether they serve as human incubators for the five months leading up to viability.”

Predictably, it took Georgia’s Supreme Court only a week to undo that decision. Georgia reinstated the six-week ban, effective at 5:00 p.m. today. While the legal challenge to the ban continues, the ban itself will remain in effect while the case plays out in court.

Supreme Court Justices in Georgia are elected statewide in non-partisan elections. The Governor fills vacancies that happen at any other time, if a judge resigns, retires, or dies, by appointing a new justice of their choice. Eight of the nine current justices were originally appointed by Republican Governors. The ninth, Justice John J. Ellington, was elected. He wrote the lone dissent from the Georgia Court’s abortion decision, arguing that the case “should not be predetermined in the State’s favor before the appeal is even docketed,” and that “The State should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution.” Ellington would have permitted Judge McBurney’s stay to remain in place while the litigation was ongoing, but he was outvoted by the other eight justices. It’s illegal to perform an abortion in Georgia again.

The decision in Georgia came as no surprise. In the Deep South, there is enormous judicial hostility to a woman’s right to choose reproductive healthcare. In 2018, the then-Chief Judge of the Eleventh Circuit authored an opinion while Roe v. Wade was still the law of the land. The case is called West Alabama Women’s Center v. Williamson, and the opinion opens with these words: “there is constitutional law and then there is the aberration of constitutional law relating to abortion.” Judge Ed Carnes wrote, gratuitously, that the standard D&C process used for abortion should be called dismemberment abortion because “the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child.” That was not the issue in the case. Alabama had passed a statute limiting abortions that were protected under Roe, and the Eleventh Circuit rejected it, as Alabama knew it would, because it violated the law.

Now, free of that constraint, the Georgia Supreme Court has rejected women’s rights in favor of political expediency. In his opinion, Judge McBurney wrote, “Georgia has seized upon a point in gestation that has political salience, rather than medical or moral salience.” For too many people, sadly including judges, this is a debate about politics, not about women’s rights.

Donald Trump is against abortion, except when he isn’t. Melania Trump is selling books with the claim that she supports a woman’s right to choose (as if that matters to Republican politicians). And JD Vance has recently claimed he is unfamiliar with Georgia’s restrictions on abortion, but on a podcast in 2022, when he was trying to get elected to the Senate, he said that he supported a national ban on abortion. Subsequently, he told Fox News’ Sean Hannity that he was “sympathetic” to the view that a national ban was necessary to stop women from traveling across states to obtain an abortion. That’s the future vision.

Texas Republican Attorney General Ken Paxton is promoting what he is characterizing as a “major victory” in the fight to keep abortion illegal. Post-Dobbs, the Justice Department issued guidance that a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), requires emergency rooms at hospitals receiving Medicare funding (that’s virtually all of them) to provide abortions if a pregnant patient’s health or life is at serious risk, even in states where the procedure is banned. As of today, the Supreme Court has said that Texas doesn’t have to do that.

Texas sued the Biden Administration in 2022, and federal District Judge James Wesley Hendrix, a Trump appointee who is the only full-time federal judge in the Lubbock Division of the Northern District of Texas where the case was filed, enjoined enforcement of the federal statute while the litigation was underway. The Fifth Circuit upheld the injunction in January 2024. Today, the Supreme Court has too. Texas can continue to enforce its ban on abortion, even in emergency situations, while the litigation proceeds.

If the issue sounds familiar, it’s because it was before the Court last term in Moyle v. U.S., a case from Idaho. The state argued that its Defense of Life Act trumped EMTALA. The Court dismissed Moyle as improvidently granted, ducking the need to make a decision on the issue. Now it’s back.

So, more women like Amber Thurman have received death sentences in states like Texas and Georgia that ban abortion. No one can pretend they don't understand this: putting Supreme Court appointments back in Republican control would have dire consequences for pregnant patients. The Court is telling us what its view is, as are Trump and Vance. And we should listen. Because the lives and the rights of people we love are at stake.

When abortion is on the ballot, women and the people who love them turn out to vote. So make sure you’re having this conversation with voters around you. Abortion is on the ballot explicitly in some places this cycle, but in truth, it’s on the ballot everywhere. Protect women’s right to obtain medical care by electing state representatives and governors who support that right and will end abortion bans. Elect members of Congress and a President who will insist on women’s rights. At every step in the political process, elected officials play a role in guaranteeing or denying women’s rights. That choice is up to us.

We’re in this together,

Joyce