Periods, ‘live tissue’: Female justices get specific about women’s health

The abortion pill case included several strikingly candid discussions of pregnancy- and abortion-related issues

Justice Amy Coney Barrett asked about dating a pregnancy based on “the woman’s recounting when her last menstrual period was.”

Justice Elena Kagan wondered whether a medical procedure qualifies as an abortion if there is no fetal “live tissue.”

And Justice Ketanji Brown Jackson shared her understanding that pregnancy tissue remaining in the body after a medication abortion doesn’t necessarily require “surgical intervention.”

Four of the nine justices who heard Tuesday’s highly anticipated Supreme Court oral arguments on a challenge to a key abortion drug are women, the highest number ever to sit on the high court for an abortion case. All three attorneys who argued the case, on both sides, are also women, a relative rarity in the male-dominated Supreme Court bar.

The result appeared to be strikingly candid, specific and non-euphemistic exchanges about women’s health, highlighting the high court’s changing gender ratio.

Justices Kagan and Sonia Sotomayor strongly dissented when the conservative majority overturned Roe v. Wade in June 2022, while Barrett was in the majority. But Jackson was not yet on the court at the time of that ruling.

Barrett asks about alleged mifepristone side-effects

The abortion pill case — which could restrict access to mifepristone, a medication used in 63 percent of the more than 1 million abortions performed annually in the United States — is focused on somewhat technical medical issues.

Antiabortion advocates argue the pills are highly dangerous, especially when taken without an ultrasound or in-person medical visit — false claims based largely on studies that have since been retracted by the journal that published them. Leading medical associations stress that the medication is extremely safe, with serious adverse events occurring in fewer than 0.5 percent of cases.

Ahead of the arguments, experts wondered how much the justices — legal, not medical experts — would engage with the health- and safety-related arguments made by both sides in the case. Some anticipated that the justices would stay away from the merits of the case, only discussing issues of whether the plaintiffs had standing to sue over the pills.

On Tuesday, the justices “were really interested in the nitty-gritty,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion.

“They were trying to take this seriously and treat abortion pills in this context as a medical issue,” Ziegler said. “The kind of case this is — it kind of invites that. It’s not a case about the Constitution.”

While the majority of the discussion on Tuesday focused on the standing issues, the justices — especially the women — embraced opportunities to discuss the medical realities of the pills in their questions, occasionally even offering commentary of their own.

In one exchange about whether one of the doctor plaintiffs had standing in the case, Barrett drew a distinction between a procedure to clear out the uterus, known as dilation and curettage (or D&C), when it is performed after a miscarriage and when it is performed after an abortion.

“The fact that she performed a D&C does not necessarily mean that there was a living embryo or fetus,” Barrett said, referring to Christina Francis, an OB/GYN who is the chief executive of the American Association of Pro-Life Obstetricians and Gynecologists and a plaintiff in the case. “Because you can have a D&C after, you know, a miscarriage.”

Soon after this, Kagan and Jackson joined in to back up Barrett — echoing her concerns about standing. At times, the three women even finished one another’s lines of questioning.

“Can you clarify the broader conscience harm from the narrow one?” Jackson asked Erin Hawley, the lawyer with the Alliance Defending Freedom, the antiabortion group that brought the case. “Because I had understood the conscience harm as Justice Barrett does, but you suggest that there’s a broader one.”

Barrett also engaged in an in-depth discussion of whether an ultrasound should be required for a medication abortion. She went on to question the lawyer for the Justice Department, Solicitor General Elizabeth B. Prelogar, about ectopic pregnancies, a highly dangerous condition in which a pregnancy implants outside of the uterus — asking how it was possible “to detect an ectopic pregnancy without an ultrasound.”

Prelogar offered a highly specific answer that highlighted the lawyer’s grasp of the medical facts at issue.

“There’s a set of screening questions that are often deployed,” she said.

“You can ask things like, ‘Do you have unilateral pelvic pain?’ ‘Did you become pregnant while you had an IUD in or after a tubal ligation?’” she continued, explaining the ins and outs of the issue.

Access to abortion remains a patchwork of state-by-state policies after the Supreme Court overturned Roe v. Wade, with abortion restricted across much of the Southern United States. In the six months that followed the ruling, there were an estimated 43,410 fewer legal abortions in states that had bans, according to a recent survey.

New restrictions are continuing to take effect, with Republican-led legislatures pushing to enact bans in some states that have become abortion havens. A six-week ban passed in Florida in April 2023 is currently not enacted as the state Supreme Court reviews the state’s abortion laws. If enacted, the ban would outlaw most abortions in the country’s third-most-populous state. More restrictions in other states are almost certainly on the way.

Nearly one in three women ages 15 to 44 live in states where abortion is banned or mostly banned.

Not surprisingly, the plaintiffs in this case are a thinly veiled Christian nationalist project called The Alliance for Hippocratic Medicine, founded in 2022. Their website has no information about the group’s members, but I’m guessing their footwear of choice is “sensible.”

Filing legally dubious lawsuits in friendly courts is one of the least offensive tactics at their disposal. It’s also one of the most effective tactics, now that the 50-year project of overturning Roe is at an end, thanks to the efforts of the Federalist Society, Mitch McConnell, and the Trump administration.

They will be correct because their worldview is fundamentally different from those of us who do not accept the Word as the final word. They may declare their devotion to the Constitution, but the parchment they worship is far older. It’s also contradictory, confusing, highly symbolic, and far more open to interpretation than the actual laws of this land. This is why the Bible is also the perfect delivery system to convey whatever the hell it is you want to convey.

Here’s what the Bible has to say about when life first begins: It doesn’t.

The closest it comes is in Genesis, when describing how Adam came into being:

“Then the Lord God formed man from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being.”

If we are to take the Bible literally, as so many in these organizations purport to do, then a human isn’t “a living being” until God breathes into the nostrils. Which would suggest, in my opinion, that life doesn’t actually begin until at least birth, because there’s no air within the womb. Also, it would mean that I’m not a living being because nobody has ever blown air in my nostrils, even though that is my kink.

In Numbers 5, the Bible goes further, ordering husbands who suspect their pregnant wives of adultery to present themselves in front of a priest who will mix together a special potion for her to drink. If she has been faithful, nothing will happen. But if she has been adulterous, the potion will cause a miscarriage. (It’s biblical mifepristone!)

Unsurprisingly, the plaintiffs did not raise the issue of Numbers 5 in Tuesday’s oral arguments.

Ultimately, though, this isn’t about the Bible. It’s about an interpretation of the Bible by a group of radical Christian nationalists. It just so happens that their interpretation of biblical law is overturning actual American law.

And again, they are correct to collect as many gains as they can, for no other reason than they believe they are right and have the money and resources to force their will down the gullets of an American populace already choking on the poison gas of the culture wars.

One thing about the righteous: they are “right.” It’s in the name. As a righteous person, your interpretation of right/wrong is, definitionally, the correct interpretation. No matter if your POV has no basis in law, medicine, or science. No matter that your POV runs contrary to the wishes of a majority of your fellow citizens. Nothing matters except your certitude regarding your own beliefs.

Presumably, it is the cold comfort of righteousness that will protect them as real women continue to suffer for their beliefs. Women carrying non-viable fetuses will continue to be forced to carry those pregnancies to term. Women will be forced to give birth to the children of their rapists. Some women will lose their lives. All of which pales in comparison to the heavenly reward they believe is their due.

In Paul’s Letters to the Romans, he writes, “No one is righteous. Not one.” Paul obviously went to court against the Alliance for Hippocratic Medicine. If you’re unfamiliar with the quotation, you can pick up a copy of the new Trump-branded Bibles available for the low, low cost of $59.95, plus shipping and handling.