Cruelty Is Still the Point, But Will It Make a Difference in November?

Since the Supreme Court's overturning of Roe v. Wade on June 24, the Republican party has doubled down on its utter contempt for women's rights and civil rights more generally.

The party leadership's hostility is blatant, and it would be nice to imagine that it would motivate "independent" and even some Republican voters to see the danger the party poses to democracy, and to vote Democratic in November. Whether this will happen is an open question. But the enmity of leading Republicans to even elemental forms of decency and common sense is clearly not in doubt. As Adam Serwer noted back in 2018, for these people and many of their followers "the cruelty is the point."

The recent grandstanding of Ken Paxton, the far-right Republican Attorney General of the state of Texas, is a case in point.

"The extreme to which the far-right Republican party is willing to go to enforce its patriarchal moralism is emblematic of the party's hostility toward civil rights."

Last week the U.S. Centers for Medicare and Medicaid Services of the Department of Health and Human Services published a new Guideline entitled "Reinforcement of EMTALA Obligations specific to patients who are Pregnant or are Experiencing Pregnancy Loss." The Guideline centered on a simple reminder: "The Emergency Medical Treatment and Labor Act (EMTALA) provides rights to any individual who comes to a hospital emergency department and requests examination or treatment."

The Act in question, passed by Congress in 1986 and signed into law by President Ronald Reagan, was designed "to ensure public access to emergency services regardless of ability to pay." It established that any hospital in the U.S. that receives any funding or reimbursement from Medicare or Medicaid must provide medical care to anyone seeking emergency treatment, and cannot turn away anyone experiencing an emergency.

The new Guideline is perhaps the most important move taken by the Biden administration to use executive power to limit the damage to abortion rights caused by the Supreme Court's June 24 Dobbs decision that overturned Roe v. Wade. Its purpose is rather straightforward: to invoke an existing federal law in order to prevent hospitals in states banning abortions from refusing to treat women who will die unless their pregnancies are medically terminated. And the purpose of the law itself was also fairly straightforward: to prevent hospitals from refusing to treat patients in danger of dying without treatment.

Pretty basic, Hippocratic Oath-type stuff, you might think. Perhaps in another time and place. But not now in the great state of Texas. And so Paxton has filed a federal lawsuit challenging the guidance on the grounds that it requires and indeed compels hospitals and doctors "to perform abortions" in violation of state law. Behind constitutional niceties, the Texas suit boils down to this claim: the federal government might seek to exercise its executive power to enforce the right of individual women to receive emergency medical attention, but this mandate should not override the state of Texas's insistence that if the protection of a fetus is involved, hospitals and doctors must let these women die.

And this in the name of "right to life."

There are surely some contentious constitutional questions related to federalism in play here, and we can be sure they will be extensively and relentlessly litigated by Republicans seeking injunctions wherever they can obtain them.

At the same time, Paxton is not acting alone; he is simply the most emphatic of Republican Attorneys General in the dozens of red states currently in the process of enacting draconian restrictions on reproductive freedom, and he is stating very plainly the "logic," as it were, behind these restrictions: that pregnant women whose lives are in danger might seek medical help to save their lives, but the needs and the claims of these women seeking life-saving abortions must be repudiated by the state in the name of the fetuses that these women are carrying in their bellies. And women seeking to get around this restriction, and the health care professionals who treat them, ought to be treated as criminals.

The "logic" of Paxton's position is surely extreme.

But the extreme to which the far-right Republican party is willing to go to enforce its patriarchal moralism is emblematic of the party's hostility toward civil rights in general and toward the civil rights of women in particular.

Paxton's Texas Republican party stands for not simply the right, but the state-imposed duty of hospitals and doctors to let women at risk die whenever giving them care jeopardizes the fetuses lodged in their uteruses. And while some Republicans elsewhere are willing to incorporate "exceptions" for the life of the mother, even these exceptions are so tenuous and vaguely worded as to render virtually all medical treatment for high-risk pregnancies liable to criminal prosecution--and thus to create a climate of suspicion and fear for all pregnant women and the health professionals who serve them.

"When in doubt, if not always, let at-risk pregnant women die rather than threaten the fetuses in their bellies" would seem to be the perverse dictum that Paxton and many of his fellow Republican Attorneys General seek to defend.

In Indiana, Republican cruelty has taken a different form, in some ways less severe, but in other ways more. Here it is not a matter of the lives of pregnant women that is at stake, but the ability of child rape victims to end their criminally-inflicted pregnancies. A few weeks back the Indianapolis Star ran a story about how "Patients head to Indiana for abortion services as other states restrict care." Among other things, the story quoted Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist who had just performed an abortion on a 10-year-old rape victim from Ohio whose local OB-GYN could no longer perform the procedure due to the state's restrictive "fetal heartbeat" law.

I will confess that I was as shocked as anyone to learn that the very red state of Indiana in which I live was actually a kind of sanctuary for young women rape victims wanting to end pregnancies forced on them by rapists. Apparently so too did Indiana's far-right Republican Attorney General Todd Rokita. Propelled into action by the right-wing media ecosphere-which immediately weaponized the story, denouncing it as "fake news" promoted by baby-killing liberals--Rokita decided that the entire incident warranted an investigation--of Dr. Caitlin Bernard!

Taking to the airwaves at Fox News, Rokita described Dr. Bernard as "an abortion activist acting as a doctor," and declared: "we're gathering information, we're gathering the evidence as we speak, and we are going to fight this till the end, including looking at her licensure, if she failed to report, and in Indiana it's a crime to not report . . . " Having insinuated that Dr. Bernard's conduct was criminal--in fact she acted entirely according to the law, as she always has done-Rokita went on to explain why he was so determined to investigate: "There's a strong public interest in understanding if someone under the age of 16 or under the age of 18 or really any woman is having an abortion in our state." Read those words again. He is clearly speaking about more than a bureaucratic matter of medical record keeping. He is declaring, ominously, that his job as the state's chief law enforcement officer is to monitor every abortion in the state as if it is a threat to law and order itself (can you imagine him declaring "there is a strong public interest in understanding if someone under the age of 16 or 18 or really any woman was having a root canal?")

Not content to announce his solidarity with Ohio's draconian abortion law, Rokita ended with a proud paean to Trumpism in general: "This is a horrible, horrible scene caused by Marxists and socialists and those in the White House who want lawlessness at the border and this girl was politicized--politicized--for the gain of killing more babies."

This is the level to which the Republican party has sunk: the insistence that dying women and child rape victims must be forced to carry pregnancies to term, and that health care professionals like Dr. Bernard who seek to serve patients in need are insidious baby-killers and Enemies of the People in league with Marxists, socialists, and . . . Democrats! If only Todd Rokita were an outlier. But he is not.

Public opinion polls have long indicated that clear majorities support Roe v. Wade, and much stronger majorities support a right to an abortion in cases of rape, incest, and risk to the life of the mother. The extremism, the vindictiveness, and the sheer cruelty currently being performed and promoted by Paxton, Rokita, and other important Republic leaders, especially at the state level, would seem far beyond the pale of "mainstream" public opinion. It might even complicate the campaigns of some Republicans running in swing districts.

But it remains a bedrock commitment of the Republican party leaders and much of the party's base. And, thanks to the Dobbs decision of the conservative supermajority that this party assiduously elevated to the Supreme Court, this commitment is now the law of the land.

Turning this around will be a huge political challenge. And even in the unlikely event it precipitates a truly massive mobilization of voters in November, things are going to get a lot worse for a lot more women before they start getting better--if they ever do.

How many rape victims must be forced to carry pregnancies to term, how many women with at-risk pregnancies will have to die, how many doctors, nurses, and vulnerable women will have to endure harassment and vindictive prosecution, before the American public wakes up to the egregious injustice that has just begun to unfold? Can elemental human decency, much less civic equality, stand a chance against the resentment and cruelty that the Republican party so effectively mobilizes? Will Republicans pay any electoral price at all this November for the barbaric policy for which they are responsible?

We shall see.