Conservatives Weave Anti-Abortion Fantasyland To Allow Emergency Room Abortion Bans

Justices Amy Coney Barrett and Brett Kavanaugh. TPM Illustration/Getty Images.
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Prolapsed umbilical cord. Septic shock. Ruptured amniotic sac. Hysterectomy. 

These, the gruesome reality of pregnancy loss, are not words we often hear during Supreme Court oral arguments, buttoned-up proceedings where the justices prefer theory and abstraction to blood and organs. 

On Wednesday, the right-wing justices really preferred the safe world of legal abstraction, where they could pretend that Idaho’s abortion ban — which only has an exception to save the woman’s life — won’t inevitably leave women to gruesome suffering. 

The Court’s conservative wing tried with increasing and atextual persistence to convince listeners that Idaho’s strict ban still allows emergency room doctors to provide abortions to women in varying states of medical distress, and not just when doctors are sure the patient is facing death. They crafted a kind of anti-abortion fantasyland where not only do exceptions work, but that the narrowest ones will amenably stretch to cover all the sympathetic cases. 

They pushed this vision, even while hospital systems in Idaho attest that they are airlifting pregnant women in crisis across state lines, or waiting for them to painfully “deteriorate” before treatment, cowed by the fact that prosecutors could come after them with punishments including mandatory prison time for violating the state ban. 

At the center of the case Wednesday was a federal statute requiring hospitals taking in Medicare funds to stabilize patients in crisis: the Emergency Medical Treatment and Active Labor Act (EMTALA). Idaho’s strict band should be preempted by that law in those emergency conditions, the Biden administration argued.

“Is there any condition you’re aware of where the solicitor general says EMTALA requires abortion be available in an emergency circumstance where Idaho law, as currently stated, does not?” Justice Brett Kavanaugh lobbed to Idaho’s lawyer Joshua Turner, trying to prompt him to say that Idaho’s ban can coexist with federal mandates.

After trying to prod the struggling Turner to repeat the argument back, Kavanaugh got frustrated.  

“You’re the one who said it in your reply brief, that there’s actually no real daylight here in terms of the conditions, so I’m just picking up on what you all said,” he grumbled, rhetorically throwing up his hands. 

Justice Amy Coney Barrett heroically tried to salvage the effort, asking Turner: “What’s the conflict?” 

“Why are you here?” she pressed.

The conservatives’ effort to paint a world where federal emergency room guidelines are unnecessary due to the generosity of the Idaho abortion ban, one of the country’s most draconian, suffered as the liberals relentlessly brought in snapshots from the real world. 

Justice Sonia Sotomayor flipped through her notes and told the story of a woman in Florida. 

The woman had experienced a gush of liquid in her second trimester and went to the emergency room.

“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,” Sotomayor said. “This is the story of a real woman — she was discharged in Florida.” 

Not under imminent threat of death, the woman went home, Sotomayor said. The next day, she started bleeding and passed out. She was brought back to the emergency room where she’d been turned away. 

“There she received an abortion because she was about to die,” she said. 

Sotomayor and Solicitor General Elizabeth Prelogar peppered the arguments with similar, real anecdotes, leaving the conservatives to squirm and sigh with palpable and growing anger. 

“I’m kind of shocked,” Barrett said after Turner struggled under Sotomayor’s gruesome litany. “You’re hedging,” she accused, insisting that his briefs said that the grim emergencies recounted by the liberals would allow patients to get abortions under Idaho’s law. 

Chief Justice John Roberts, in a rare break with courtroom decorum, interrupted to demand that Turner be allowed to finish after Sotomayor cut him off. (Interrupting a lawyer mid-argument to press a point is a common practice of all of the justices.) Both Justices Samuel Alito and Neil Gorsuch also complained that Turner wasn’t given time to answer the liberals’ questions.

Alito, himself exceedingly fond of backing lawyers into corners with difficult hypotheticals, whined that Turner was being given an impossible task. 

“You have been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropriate,” he said. 

“Would you agree with me that if a medical doctor who is an expert in this field were asked bang, bang, bang, what would you do in these particular circumstances which I am now going to enumerate, the doctor would say: ‘This is not how I practice medicine, I have to know a lot more about the individual case?’” he added with an air of incredulity.

The conservatives’ pique tracks with the grim underbelly of the abortion ban regimes that has been laid entirely bare in the post-Dobbs world. The anti-abortion movement long premised its case on a notion, implicit or explicit, that abortion was the provenance of young, irresponsible, promiscuous women. 

That’s always been a lie, but now it’s a lie that’s obvious to everyone: Abortion restrictions have always hurt everyone who can get pregnant, including women desperate to carry their pregnancies to term — the kind of women anti-abortion activists purport to support. And Wednesday’s case in particular centers on the suffering of those women, women who are fairly far into their pregnancies, whose loss is often a personal tragedy as well as a medical emergency.

“Leave it to the states” is the kind of messaging anti-abortion activists and their judicial helpmates love: It sounds clean, neat, reasonable. But when states enact near-total bans, when the federal government somehow loses its authority to block those bans even when they threaten women with serious illness — as Idaho is pushing for here — the reality for all to see is women bleeding out in emergency rooms, pregnant women loaded onto helicopters, doctors sitting back and watching patients writhe in pain until death is closer. 

That’s a reality the right-wing justices tried their best Wednesday to both perpetuate and paper over. If they come down like they sounded inclined to during arguments, prepared to take abortion off the table even for the small sliver of women in medical distress who desperately need it, it’ll be fresh proof that women’s suffering again bows to the furtherance of the mission to ban abortion everywhere. 

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