The Anti-Abortion Endgame That Erin Hawley Admitted to the Supreme Court
Justice Ketanji Brown Jackson zeroed in on this admission.
JURISPRUDENCE
The Anti-Abortion Endgame That Erin Hawley Admitted to the Supreme Court
BY DAHLIA LITHWICK AND MARK JOSEPH STERNMARCH 27, 20244:48 PM
Erin Hawley speaks to the media after oral arguments in FDA v. Alliance for Hippocratic Medicine on Tuesday in Washington. Anna Rose Layden/Getty Images
Somewhat lost in the debate around abortion pills and oral arguments that took place at the Supreme Court in FDA v. Alliance for Hippocratic Medicine on Tuesday was one deeply uncomfortable truth: The very notion of what it means to practice emergency medicine is in dispute, with anti-abortion doctors insisting upon a right to refuse treatment for any patient who doesn’t meet their test of moral purity. Indeed, the right asserted is that in the absence of certainty about which patients are morally pure, the doctors want to deny medication to all patients, nationwide.
In public, the plaintiffs in this case—a group of doctors and dentists seeking to ban medication abortion—have long claimed they object to ending “unborn life” by finishing an “incomplete or failed” abortion at the hospital. But in court, they went much further. Their lawyer, Erin Hawley, admitted at oral argument that her clients don’t merely oppose terminating a pregnancy—they are pursuing the right to turn away a patient whose pregnancy has already been terminated. Indeed, they appear to want to deny even emergency care to patients whose fetus is no longer “alive,” on the grounds that the patient used an abortion drug earlier in the process. And they aim to deploy this broad fear of “complicity” against the FDA, to demand a nationwide prohibition on the abortion pill to ensure that they need never again see (and be forced to turn away) patients who’ve previously taken it. This is not a theory of being “complicit” in ending life. It is a theory that doctors can pick and choose their patients based on the “moral distress” they might feel in helping them.
It should come as no surprise that the same judge who tried to ban mifepristone in this case, Matthew Kacsmaryk, has also attempted to legalize anti-LGBTQ+ discrimination in health care nationwide. This is the ballgame: weaponize subjective religious beliefs against secular society to degrade the quality of care for everyone. If you can’t persuade Americans to adopt hardcore evangelical views, exploit the legal system to coerce them into it anyway.
Alliance for Hippocratic Medicine is at once embarrassingly frivolous and existentially important. Don’t let the jokes about how silly the Comstock Act seems, or how speculative the theory of standing is, get in the way of taking a serious look at the claims on offer. The plaintiffs say they are terrified that one day, a patient may walk into their emergency room suffering complications from a medication abortion prescribed by some other doctor. This patient may need their assistance completing the abortion or simply recovering from the complete abortion, which these plaintiffs deem “complicity” in sin. And they say the solution is either a total, nationwide ban on mifepristone, the first drug in the medication abortion sequence, or a draconian (and medically unnecessary) set of restrictions that would place mifepristone out of reach for many patients. (The U.S. Court of Appeals for the 5th Circuit ruled to reinstate those restrictions at their behest.)
It is a twisted line of logic, one that should never have reached the Supreme Court in the first place. But it is also a product of the court’s past indulgence of outlandish claims about moral “complicity.” As was made plain in the oral arguments and briefing, activist doctors are no longer satisfied with personal conscience exemptions already granted under state and federal law; they now insist that nobody, anywhere, should have access to the abortion pill, in order to ensure that they themselves won’t have to treat patients who took one. At a minimum, they say, they should be able to radically roll back access to the pill in all 50 states to reduce the odds that one of these handful of objectors might someday encounter a patient who took it. This extremist argument lays bare the transformation of the idea of “complicity” from a shield for religious dissenters to a sword for ideologues desperate to seize control over other people’s lives and bodies.
At oral arguments, several justices pressed Hawley, who argued on behalf of Alliance for Hippocratic Medicine, with an obvious retort: Why can’t her clients simply refuse to treat these hypothetical someday patients on the grounds that they cannot help end the “life” of a fetus or embryo? After all, federal law guarantees doctors the right not to have to provide an abortion if doing so is “contrary to his religious beliefs or moral convictions.” Justices Amy Coney Barrett and Brett Kavanaugh secured assurances from Solicitor General Elizabeth Prelogar, early in the arguments, that under no circumstances could the government force any health care provider to ever participate in an abortion in violation of their conscience. Justice Elena Kagan asked Prelogar: “Suppose somebody has bled significantly, needs a transfusion, or, you know, any of a number of other things that might happen.” Would the plaintiffs object to treating them? Prelogar said the record was unclear.
Hawley, who is married to far-right Republican Sen. Josh Hawley, then approached the lectern and cleared up any confusion: Yes, she insisted, treating a patient who has undergone a medication abortion violates the conscience of the plaintiff physicians even if there is no “live” fetus or embryo to terminate anymore. “Completing an elective abortion means removing an embryo fetus, whether or not they’re alive, as well as placental tissue,” Hawley told Kagan. So the plaintiffs don’t object just to taking a “life.” They also object to the mere act of removing leftover tissue, even from the placenta.
Of course, these doctors must remove “dead” fetal tissue and placentas all the time—from patients who experienced a spontaneous miscarriage. By their own admission, the plaintiffs regularly help women complete miscarriages through surgery or medication. Those women they will gladly treat. Other women, though—the ones who induced their own miscarriage via medication—are too sinful to touch. Before the plaintiffs can administer even lifesaving emergency treatment, they need to know the circumstances of this pregnancy loss: Spontaneous miscarriages are OK; medication abortions are not.
Justice Ketanji Brown Jackson, too, zeroed in on this admission. She told Hawley that she had thought the objection was to “participating in a procedure that is ending the life [of the fetus].” Hawley told her no: Any participation in an abortion, even through the indirect treatment of a patient without a “live” fetus, violated the doctors’ conscience. So, wait. What about “handing them a water bottle?” Jackson asked. Hawley dodged the question, declining to say whether helping a patient hydrate would constitute impermissible complicity in sin.
All this is reminiscent of Little Sisters of the Poor, a case about a Catholic charitable group that was afforded an exemption from the Affordable Care Act’s contraception mandate. The Little Sisters were asked to check a box signaling to the government that they could not comply with the mandate, at which point the government would step in to cover their employees. But the Little Sisters refused, viewing this action—the checking of a box to opt out of coverage—as “complicity” in abortion because it would in turn trigger government payment for contraception (which they viewed as abortifacients). The Supreme Court and the Trump administration ultimately indulged the Little Sisters’ claim.
Here, we have emergency room physicians asserting that they will not participate in lifesaving medical intervention unless they approve of the reason for the pregnancy loss. Presumably, if the pregnant patient is an unwed mother, or a gay or transgender person, the doctor would be similarly complicit in sin and decline service. Seen through this lens, since one can never know which sins one is enabling in the ER, each and every day, a narrow conscience exemption becomes a sweeping guarantee that absolutely nobody in the country can ever have access to basic health care, let alone miscarriage management. (Of course, these plaintiffs might focus only on one set of “sins” they see as relevant.) In a country effectively governed by Kacsmaryk and his plaintiff friends, a gay person suffering a stroke could be turned away from any hospital because of his sexual orientation, all to spare a doctor from a glancing encounter with prior sin. As Tobias Barrington Wolff, a professor of law at the University of Pennsylvania Law School, put it to us in an email, this unbounded view of complicity “is part of enacting the social death of people and practices you abhor, which in turn can contribute to the material death of people and practices you abhor.”
One of the most exhausting lessons of post-Roe America is that being “pro-life” definitively means privileging the life of the presumptively sin-free unborn—or even their “dead” remains—over the life of the sin-racked adults who carry them. This is why women are left to go septic or to hemorrhage in hospital parking lots; it is why C-sections are performed in nonviable pregnancies, at high risk to mothers; it’s why the women who sued in Texas to secure exceptions to that state’s abortion ban are condemned by the state as sinners and whores. And it’s why—in the eyes of the Alliance for Hippocratic Medicine—it is a greater hardship for a physician to “waste precious moments scrubbing in, scrubbing out” of emergency surgery, as Hawley put it, so long as they don’t believe that the emergency warrants their professional services, than it is for a pregnant person, anywhere in the country, including in states that permit abortion, to be forced to give birth.
At oral argument, Hawley explained that her clients have “structured [their] medical practice to bring life into the world. When they are called from their labor and delivery floor down to the operating room to treat a woman suffering from abortion drug harm, that is diametrically opposed to why they entered the medical profession. It comes along with emotional harm.” The emotional harm alleged here is that unless these doctors approve of the specific circumstances of the ER visit, they violate not only their own medical preference but also their religious convictions. But they will never truly know enough about the sins of their patients to be able to shield themselves against being a link in a chain of subjective lifelong sin. And to be a doctor, especially an emergency physician, should be to understand that your patients’ private choices and spiritual life are not really open to your pervasive and vigilant medical veto. This deep-rooted suspicion of patients deemed insufficiently pure for lifesaving treatment didn’t begin with the availability of medication abortion. It will assuredly not end there.
