What Alito Doesn’t Understand About Pregnancy

A conservative justice’s draft treats pregnancy as a simple matter: Either a uterus is occupied by a fetus or it is not.

An illustration of Justice Samuel Alito appearing in the silhouette of a woman
Dennis Brack / Bloomberg / Getty; The Atlantic

When I train medical students, I emphasize that almost nobody is more acutely aware of time than an obstetrician is. Whenever doctors in my field are briefed about a new patient, the first question we ask is: “How many weeks?” The answer affects everything. A pregnant patient diagnosed with high blood pressure at 12 weeks is usually suffering from chronic hypertension, a condition not immediately dangerous to her. At 37 weeks, a similar blood-pressure reading signals preeclampsia, a direct risk to the patient and her fetus. A patient whose water breaks the week before her due date, at 39 weeks, is probably going to have a healthy baby; someone in the same situation at 20 weeks faces a terrifying ordeal that will probably end in infection and pregnancy loss. The dangers that a patient faces, the treatment options we can consider, the risks she may be willing to take—all of these evolve over the nine months of a pregnancy. The only people who understand this better than obstetricians do are our pregnant patients themselves, who count every passing moment in their bodies.

In contrast, the Supreme Court appears poised to rule that those time sensitivities don’t matter at all, at least not in the context of reproductive rights. In a leaked draft that may foretell the Court’s opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito not only reverses Roe v. Wade, the landmark 1973 decision protecting the right to obtain an abortion, but also heaps scorn upon the Court’s past attempts to align American law with the reality of pregnancy.

The Roe Court, which presumed that the law should take fetal development into account, established different standards for abortion access by trimester. States could not prohibit abortions in the first trimester, could regulate them somewhat in the second trimester, and could prohibit them altogether in the third trimester. In Casey v. Planned Parenthood, the 1992 decision that upheld Roe, the Court replaced the trimester system with a framework centered on viability—the gestational age when a fetus can survive outside the uterus. Casey declared that before the point of viability, which at the time was considered to be about 24 weeks, states could not place an undue burden on a woman’s fundamental right to abortion; after viability, the state could pursue its interest in the “potentiality of human life” by regulating or even outlawing abortion.

In the leaked draft, Alito jettisons both approaches. He describes Roe as an “elaborate scheme” devised “without any grounding in the constitutional text, history, or precedent” and dismisses the Casey viability standard as similarly contrived. His draft concludes that at no point in gestation should a person’s ability to end her pregnancy be beyond the control of her state’s legislature. Alito’s line of reasoning treats pregnancy as a binary matter: Either a uterus is occupied by a fetus or it is not. The owner and operator of that uterus doesn’t appear to deserve much of his consideration.

As a physician who specializes in high-risk pregnancies, I have cared for patients with a wide variety of complex medical troubles: metastatic cancer, kidney disease serious enough to require dialysis, heart conditions that make walking down the hallway an exhausting workout. For many of my patients, pregnancy hinders or simply prevents them from getting the right treatment for their chronic underlying illness. For others, pregnancy is what is making them sick, putting their heart or their brain at risk of permanent damage. Recently, I discussed termination with a patient who came to my hospital at 21 weeks’ gestation with multiple organs in failure. Her pregnancy was killing her; ending it would save her life.

In the United States, more than 90 percent of pregnancy terminations occur in the first trimester. This pattern is consistent not only with the logic of Roe and Casey, but also with something obstetricians know: Ending a pregnancy is medically simpler the earlier the procedure occurs.

Early abortions—accomplished either by medication or by dilation and curettrage, a technique that ob-gyns typically learn in their first year of training—are some of the safest procedures in medicine, and are far safer than carrying a pregnancy to term. (The United States continues to have a shameful maternal-mortality crisis. Carrying a pregnancy to term is one of the most dangerous experiences someone can undergo in America. The overall death rate is unmatched in any other rich country, and the rate for Black women is particularly high.) Many of these early abortions can be performed in an office, rather than an operating room; if the timing is early enough for a medication abortion, it can even be accomplished at home, safely. Later abortions get progressively more complex, and require more time, and often a higher level of physician expertise, though they are still safer than continuing a pregnancy. Accordingly, later abortions are rare; only 1.3 percent of abortions in the United States occur after 21 weeks. These patients are more likely to be medically vulnerable, and to be under the care of a high-risk-pregnancy specialist, than those who seek an abortion early on. In many such cases, an abortion is the tragic outcome of a desired pregnancy gone horribly wrong. In some of those cases, saving a patient’s life requires all of my team’s expertise.

In New York, where I practice, abortion access has been encoded into state law; the forthcoming Supreme Court ruling likely will not affect my ability to offer terminations of pregnancy. But more than a dozen states have passed laws outlawing abortion as soon as Roe falls, and other states have bills in the works. Many of the laws allow for exceptions: Some permit termination of pregnancy for the general health of the mother; others require “substantial and irreversible impairment” or “imminent peril” of a “major bodily function” before termination becomes legal. In my view, these laws show minimal consideration for the pregnant patient, and instead seem designed to make a doctor pause. Is this enough of an emergency? Is she sick enough to make this acceptable, or will I get fired? Is she close enough to death, or will I go to jail?

For people who believe that every abortion is equivalent to killing a child, any discussion of it may be disconcerting. Yet I can promise that I and other high-risk-pregnancy doctors deeply understand the value of a pregnancy. Our life’s work is to help patients achieve a happy outcome: a healthy mom, a healthy baby. We are the care providers who stay up all night to watch fetal heart tracings, and study ultrasound results endlessly, and weep with our patients when a pregnancy is lost. We understand that would-be parents sometimes face terrible choices, and we do not counsel patients with a desired pregnancy about termination lightly—at any gestational stage.

Every day, though, we see more evidence of medical realities that are enshrined in Roe and Casey but are absent from Alito’s argument. Namely: The early phases of pregnancy are not the same as the later phases; early abortions are different from late abortions.

For half a century, the United States has had an abortion structure that reflected these truths—and therefore worked most of the time, for most women. Even under Roe and Casey, some of my patients have been left without the option of termination when lethal fetal anomalies were diagnosed very late in their pregnancy. These patients endured excruciating emotional and physical pain. But the issue with Alito’s draft judgment is that he is essentially decreeing that a first-trimester pregnancy is no different from a third-trimester one, and allowing states to ban all of these abortions with the same level of restriction.

I will grieve the loss of Roe. Most Americans do not realize what we are about to lose. All consideration for medical complexity is gone in the Alito draft, which cares very much for the “unborn human” and very little for the live human it grows in. The idea of pregnancy it proposes is abrupt and binary: The moment she becomes pregnant, a woman has no constitutional guarantee of autonomy over her body. This is what it looks like when so many of the people making laws for pregnancy show no understanding of what going through one is like. I am here to tell you it will not end well.