The Latest Supreme Court Abortion Arguments Were a Terrifying GOP Fever Dream

Today the Supreme Court held a brutal two hours of arguments in a case about whether women and pregnant people deserve life-saving medical care if that care happens to be abortion. (Yes, this is the second abortion case this term.) Several justices, and the lawyer for the plaintiff, trotted out wild hypotheticals and invoked the dangerous concept of fetal personhood in a disturbing preview of the future that awaits every state if Donald Trump wins the presidency. It could mean that people face horrible medical mistreatment simply because they’re pregnant and, at the most extreme end, could lead to a federal abortion ban.

The case, Moyle v. United States, is about whether state abortion bans like Idaho’s can override a longstanding federal law that requires emergency rooms to stabilize patients, including by offering abortion if necessary. That law, the Emergency Medical Treatment and Active Labor Act (EMTALA) says hospitals that accept Medicare funding have to stabilize patients in medical crises and deliver babies when women are in labor. But given that some states passed abortion bans that only have exceptions to prevent death, not to treat threats to health, the Biden administration reiterated hospitals’ obligations after the Dobbs decision, and later sued the state of Idaho.

Idaho strongly disagrees that its hospitals should have to provide abortions for threats to health—like when a woman’s water breaks in the second trimester, far too early for a baby to survive but, when left untreated, could result in a life-threatening infection called sepsis or extensive blood loss known as hemorrhaging. The state worked with the right-wing Christian legal firm Alliance Defending Freedom to craft its legal arguments and one such argument raised in briefs and in the courtroom is the claim that a fetus is a patient under federal law.

Justice Elena Kagan asked Josh Turner, the lawyer representing Idaho, how the state ban functions when doctors believe a woman’s pregnancy complication might cause her to lose her uterus, and thereby her ability to have children in the future, but not cause her to die. Turner’s response was chilling: “Congress under EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is tough when you have these competing interests.” This logic is terrifying, mostly because a fetus is only a patient under EMTALA when there aren’t health threats to the pregnant person. The woman is the patient first and foremost. Idaho is trying to claim that because the words “unborn child” are used in the law, it means that the interests of the woman and the fetus have equal weight, when they do not.

This is fetal personhood and it’s scary not least because the people being denied ER treatment in Idaho and other states are often in their first and second trimester and there’s no way the embryo or fetus will survive. The fetus is a lost cause at that stage, yet states like Idaho say that women themselves need to be facing death before they can have an abortion. (People coming to ERs later in pregnancy with complications would typically have labor induced and then doctors would try to keep the fetus alive.)

Justice Neil Gorsuch seemed to agree with Idaho and ADF, asking “What do we do with the EMTALA’s definition of individual to include both the woman and, as the statute says, the unborn child?” Justice Samuel Alito also seemed anxious to promote this idea. Around the 90-minute mark, Alito jumped in to say that “one potentially very important phrase in EMTALA” had hardly been mentioned, which is “EMTALA’s reference to the woman’s ‘unborn child.'” He inquired, “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” He then asked “Doesn’t that tell us something?”—as if it meant that Congress believes fetuses are people under the law. (A few things here: Obviously Gorsuch already brought it up, and the law requires hospitals to offer abortions if they’re the best treatment and the patient has to consent.)

Biden administration lawyer Elizabeth Prelogar noted in response to Alito that the phrase was added in 1989 after reports of hospitals refusing to treat women whose own health or lives weren’t in danger, but whose fetuses were in distress and needed medical care.

SCOTUS Justice Alito & U.S. Solicitor General Elizabeth Prelogar spar over the Emergency Medical Treatment and Active Labor Act’s inclusion of the phrase “unborn child”:

Alito: “Have you seen abortion statutes that use the phrase ‘unborn child’ Doesn’t that tell us something?” pic.twitter.com/PScvKiFG01

— The Recount (@therecount) April 24, 2024

After the clip above cuts off, Prelogar said that when women face a medical emergency, they are the patient under EMTALA, not the fetus—she also said this in her legal brief where she cited the dictionary definition of “individual” as a born person. Alito said EMTALA “indisputably protects the interests of the unborn child” if the pregnant woman wants to continue the pregnancy. Prelogar responded that it was wrong “to suggest that, in doing so, Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization.”

Alito really did not like that and snapped: “Nobody’s suggesting that the woman is not an individual, that she doesn’t…she doesn’t deserve stabilization, nobody’s suggesting that.” But crucially, ADF does think that. CEO Kristen Waggoner recently told Politico, “We do believe at ADF that the Constitution protects the life of an unborn child and that that is in the 14th Amendment.” When a fetus is a person with full legal rights, women and pregnant people lose their rights. So while ADF may not be explicitly asking for personhood in this suit where they worked with Idaho, they absolutely do want to build case law that could ban all abortions under the constitution.

As if that wasn’t enough anti-abortion bullshit, Idaho’s lawyer also suggested that the Biden administration’s enforcement of EMTALA would lead ERs to offer abortions for mental health reasons. He cooked up a hypothetical about a woman being seven months pregnant and telling ER doctors she was suicidal about continuing the pregnancy. He claimed that “the mental health exception” is “what the government doesn’t want to talk about.” Even Justice Amy Coney Barrett was incredulous, noting in that scenario, doctors would likely stabilize the patient’s mental health and then transfer them to get appropriate treatment. When it was Prelogar’s time to respond, she swatted it away: “They have tried to make this case about access to abortion in cases of unwanted pregnancy. But that’s not what this case is about at all.” She added, “When a woman comes in with some grave mental health emergency, if she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give informed consent.”

SCOTUS Justices Sonia Sotomayor and Amy Coney Barrett press Idaho’s counsel over how much latitude state law gives doctors to perform emergency abortions:

Josh Turner: “It is very case by case.”

Sotomayor: “That’s the problem.”

Barrett: “I’m kind of shocked.” pic.twitter.com/mVooj2sHoR

— The Recount (@therecount) April 24, 2024

While Barrett sounded skeptical of Idaho’s arguments at times, it would be a fool’s errand to believe she would rule in favor of abortion access. Even if Barrett did side with the United States, that would only be four votes, and the Biden administration needs five to win. The other question marks here are Chief Justice John Roberts and Brett Kavanaugh. (Thomas didn’t show his cards much but you know he’s voting for Idaho.)

If by some miracle the court rules against Idaho, that doesn’t mean abortion access is safe by any means. Barrett and Gorsuch both asked if a future Congress could ban hospitals from performing any abortions or gender-affirming surgeries as a condition of accepting Medicare funds. Prelogar said yes, Congress does have the power to pass laws like that. And of course, there is the lurking threat of the 19th-century Comstock Act which a Republican president could enforce to ban abortion nationwide, even at clinics in states with abortion protections.

We now get to sit back and wait until late June to hear what these freaks have to say about both abortion pills and emergency abortions.