Abstract
Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., several states imposed significant restrictions on abortion. Some of these states established medical exceptions that would allow a woman or any other pregnant person to receive an abortion only if they face “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” This language highlights the extreme pain and suffering that pregnant people must experience to qualify for an abortion in some states. It also has a troubling past. It is the same language and threshold the United States used to justify the torture of detainees during the war on terror.
This essay recognizes the linguistic connection between abortion restrictions and the language of torture. Forcing pregnant people to suffer pain equivalent to torture as a condition for receiving reproductive care is a requirement of extraordinary violence. And yet, the Supreme Court’s decision in Dobbs attaches no significance to this requirement or its attendant health costs. In response, this essay argues that these health costs should be considered by legislatures and courts when assessing abortion restrictions. Because rational basis review is now the legal standard for assessing restrictions on reproductive care, legislatures should be required to acknowledge the health costs to individuals, and courts should be required to verify that legislatures engaged in this review. The current absence of cost analysis and verification in rational basis review of abortion restrictions undermines the legitimacy of even this most deferential form of judicial scrutiny. This legal ignorance also highlights the continuing flaws and profound harms of the Dobbs decision.
