Killing Yourself to Live

Notes in an emergency

Wooden anatomical figure with painted wooden box, Germany, 1650-1750 (Wikimedia)

The Supreme Court’s oral arguments this week in the federal government’s challenge against Idaho’s near-total abortion ban often sounded less like a debate over the limits of federalism and more like an autopsy. Seemingly recognizing the dry legal question of when the state’s ban was supplanted by the federal law guaranteeing emergency medical care missed the rhetorical mark, Justice Sonia Sotomayor in particular was determined to read the violence of the state’s abortion ban and others like it into the record, detailing in gruesome detail the brutal and lasting effects on their bodies after being forced to wait until the brink of death before doctors felt they could comply with the law:

“You have a pregnant woman who is early into her second trimester at 16 weeks, goes to the ER because she felt a gush of fluid leave her body. She was diagnosed with PPROM. The doctors believe that a medical intervention to terminate her pregnancy is needed to reduce the real medical possibility of experiencing sepsis and uncontrolled hemorrhage from the broken sac. This is a story of a real woman. She was discharged in Florida because the fetus still had fetal tones and the hospital said she's not likely to die, but there are going to be serious medical complications. The doctors there refused to treat her because they couldn't say she would die. She was horrified, went home. The next day, she bled. She passed out. Thankfully taken to the hospital. There, she received an abortion because she was about to die.”

Women forced to wait until, in the language of Idaho’s ban, an abortion is “necessary to prevent the death of the pregnant woman” may be subjected to agonizing and lasting physical impairments, as Sotomayor told the Courtroom, “including blindness for some, for others, the loss of organs, for some, chronic blood strokes, Idaho is saying, unless the doctor can say in good faith that this person's death is likely, as opposed to serious illness, they can't perform the abortion.” This viscera, this flesh invoked by Sotomayor, was a necessary additive to the cold legal rhetoric, one that put the pregnant body in the center of the room and forced the Court (and anyone listening) to consider the case not in the abstract language of law schools but in the bleeding, chaotic body. Not as it exists in the fairy tales of anti-abortion activists but in its actual existence—porous, fluid, and fragile.

The word “organ” appears in the Court’s transcript 18 times, with Justice Samuel Alito at one point asking Solicitor General if EMTALA’s definitions of an emergency medical condition applied “only to permanent impairment or dysfunction” of the patient’s organs, or whether “the woman need not be in immediate jeopardy, but if she doesn't get care right away, jeopardy at some future point may suffice”—as if he were hunting for the narrowest possible definition and attempting to close any “loopholes” a woman may pass through to control her own body.

This, to my non-attorney ears, felt like the actual question before the Court. At its most basic, the hearing was about what level and what kinds of suffering are sufficient to break open the state’s lockdown on your body. Left unquestioned was the assumption set in place by Dobbs, that a woman’s willfulness and subjectivity were worthless in the eyes of the Court and her desire or experiential need for an abortion likewise meaningless. There was no question that a woman should have zero say in the if, when, and how of her pregnancy or bringing a child to into the world. What was left in this hearing was a vivisection, an anatomy lesson, a woman reduced to the sum of her physical parts.

As if to emphasize this point, the attorney from the far-right Alliance Defending Freedom representing Idaho invoked the psychiatric need for an abortion as an example of the potential excesses (so to speak) of EMTALA:

The American Psychiatric Association, in a 2023 position paper, says that abortions are imperative for mental health conditions. That sounds like a necessity to me. And I don't know how, if a woman presents at seven months pregnant in an Idaho emergency room and says, I'm experiencing severe depression from this pregnancy, I'm having suicidal ideation from carrying this pregnancy forth, that that wouldn't under the administration's reading be the only stabilizing care.

The implication by the state here is that loosening the state’s hold on abortion access will allow abortions even in the event of suicide which—because it is dependent upon the individual’s experience and voice rather than their empirical body—will simply throw the doors too widely open, allowing any woman to simply claim suicidal ideation in order to get an abortion that they merely want rather than need. It need not matter that these women may mean it, that they may follow through on their word and terminate their life and pregnancy in one shot. The mere recognition of her experienced dread, rage, or melancholy by the Court is an exemption too chaotic and too indeterminant to allow, a threat to the state’s power over her body and every body like hers because it is grounded not in the word of her doctors or the state of Idaho or the federal government. They’d rather let her die and take the fetus they claim to be protecting with her than dare give her word a spare moment of power.

Also this week, a state court in New York threw out the 2020 rape conviction of Harvey Weinstein, finding the trial court “erroneously admitted testimony” of women previously assaulted by Weinstein in addition to the two charges at the center of his trial. “because that testimony served no material non-propensity purpose.” The testimony of these women was “prejudicial,” said the court, and the remedy was another trial. As in the Supreme Court’s emergency abortion hearing, the logic of the Weinstein reversal by the court is the reduction of personal experiences to the “material,” suggesting first-hand experience itself was unjustifiably subjective—as if the women with first-hand experience of Weinstein’s propensity for rape and assault were, in the eyes of the law, as stained by irrationality as the woman in want of an abortion. Whether through the cold hand of pathology or the cement brutalism of the law, the verdict is the same—she cannot be trusted.

Suicide during pregnancy is among the leading causes of death during pregnancy. Nearly one in ten women who commit suicide between the ages of 15-44 was known to be pregnant when they did so, and the APA position paper cited by Idaho above reinforces how “restrictive abortion and contraception policies have been shown to be related to an increased risk for a variety of mental health problems and may have a negative impact on the overall health of women, including physical, emotional, and social wellbeing.” The paper itself was commissioned in response to manufactured debate by anti-abortion activists that falsely suggested a causal link between abortion itself and poor mental health outcomes, a tactic currently being used to delegitimize contraception and gender-affirming medical care.

As I noted in my previous writeup about the shared history of the pathologized framework of transgender people’s medical care and pre-Roe restrictions on abortion, risk of suicide was among the factors considered by doctors and hospital boards when presented with patient requesting one. In her book When Abortion Was a Crime, Leslie Reagan describes the testimony of a Baltimore hospital director who said so many woman claimed to be suicidal for want of an abortion they were largely “ignored”:

“She told a tragic story of a pregnant teenager who tried to kill herself after learning that her request for a therapeutic abortion had been rejected. The committee reconsidered her case and decided to hospitalize her through her pregnancy in order to save her life. Physicians were using the hospital to enforce childbearing. In the end, this teenager so disrupted the hospital with her multiple suicide attempts that the abortion committee reconsidered a second time and agreed to a therapeutic abortion. Her abortion was granted less because of her own mental health than because of the needs of the hospital and its staff. This particular case highlights the subjectivity of the entire committee system.”

In addition to warning of psychiatry’s role in “the misuse of sympathy” towards criminal behavior, the influential post-war psychiatrist Dr. Sidney Bolter warned hospitals to ignore suicidal ideation as justification for an abortion, calling doctors the “unwitting accomplice” of deceptive patients. “We know that women’s main role here on Earth is to conceive, deliver, and raise children,” he wrote in a 1962 paper. As Barbara Ehrenreich and Dierdre English write in For Her Own Good, their seminal history of paternalistic medicine’s efforts to tame rebellious women, a patient’s willingness or ability to perform her assigned gender was the central determinant of health for no less than the first century of psychiatry’s existence.

The mention of suicide by the attorneys for Idaho this week is a callback to this era, when doctors worked hand-in-glove with the state to enforce women’s “main role” upon them. Notably, neither the liberal Justices on the Court nor the attorney for the Biden administration challenged this because the question before the Court was so limited to instances when abortion is the “only stabilizing care”—suggesting, like Dr. Bolter, that another course of action may remedy a patient’s suicidality even if their suicidal intent is tied directly to their pregnancy and all that it entails. Perhaps all she needs, like the teenager above, is a few stays in a hospital, a regimen on medications, a visit to a “crisis pregnancy center,” or anything but the very thing she’s demanding. As long as we have other means of submitting her to a forced childbirth, says the state of Idaho, than an abortion is off the table.

Suicide is perceived, culturally and medically, as the end of reason. It is talked about in the public health frame as something not that someone does but that happens to them—one does not commit suicide, says the media guidelines of the American Foundation for Suicide Prevention, but “dies by suicide.” This framework is of admirable intent, meant to shift from an individualized framework to a public health one—away from the stigma of suicide as an even selfish act towards a more sympathetic one that emphasizes suicide as the result of a myriad collection of external factors. But this also has the effect of rendering suicide so amorphous as to deny the agency of the person “dying from” it. As a 2022 review of research into suicide during pregnancy emphasized, the list of external factors that can increase risks for suicide are vast, amorphous, and sociological:

The risk factors identified were major depressive disorder, anxiety disorder, difficulties with sleep, previous suicide attempts, high rumination, low incomes, being black, being young, low educational level, partner violence, having poor support, food insecurity, history of child abuse, high obstetric risk, multiparity, previous induced abortion and exposure to tobacco or human immunodeficiency virus diagnosis.

Suicide, then, is a response to one’s conditions, and pathologizing it away as the state of Idaho wishes to do is simply a means of erasing the patient’s own agency and replacing it with that of her doctors or, if they are unwilling, the state.

In a recent essay for Bookforum on the self-immolation of Aaron Bushnell in protest of the US’s continued support for Israel’s assault on Gaza, Hannah Zeavin warned those who dismissed Bushnell’s named act of protest as merely pathological “commandeered his agency, attributing his death to an affliction because it was easier to think of him as ill than to consider the message of his reasoned death”:

Pathologizing protest allows one to say, ‘Never mind,’ and that’s what was said of Bushnell. While his ashes were still on the sidewalk in front of the embassy, the meaning of his death was already changing. He dedicated his death outward but a number of those who heard his message wanted to put it back inside him, where they presumed there was no political mind, only an emotional one.

In this week’s Supreme Court hearing, all sides agreed that a woman who threatens or commits suicide explicitly because she cannot terminate her pregnancy is, ipso facto, apolitical. She is not a rational subject of her own experience, and her word should carry no weight—not nearly as much as her organs, her blood, even her future reproductive capacity. Her threats of suicide may be resistance to external factors—but she is clearly no good judge of what those external factors may be. All those materials, that flesh, is the defining feature of her personhood and absent entirely is the person that dwells within them.

The word most indelible to my mind from this week’s hearing was deterioration. Justice Elena Kagan spoke of the stabilizing requirement of EMTALA, defining it as “means to provide the treatment necessary to assure within reasonable medical probability that no material deterioration occurs.” It struck me as strangely out of place, as if doctors were assessing the quality or value of a body the way an auctioneer does to an antique (or, of course, used to do to bodies). It seemed to be a nod to the fact that the body, like the mind, is hardly immune to the world within which it lives and is a part of—its cruelties, indignities, injustices, and violence.

Yet all parties agreed that the mind, though inseparable from the body, is no good judge of its own deterioration. That a patient’s willfulness to destroy their “material” body is itself disqualifying of her ability to consent to the very thing she knows she needs to avoid subjecting that same body to a violent, visceral experience. It is an effort by the state to build an impossible wall between the empirical and experienced, the objective and the subjective, the political and the personal, using a woman’s own blood and guts as the mortar between the bricks.