The Liberal Justices Had to Explain Why Pregnant Women Should Be Treated Like Human Beings

During arguments for the Supreme Court's 2nd abortion case, Justices Sotomayor, Kagan, and Jackson told stories of women airlifted out of Idaho due to the state's near-total abortion ban and women who were left infertile from pregnancy-related complications.

The Liberal Justices Had to Explain Why Pregnant Women Should Be Treated Like Human Beings

On Wednesday, the Supreme Court heard arguments for Moyle v. United States, a case that weighs whether Idaho’s abortion ban violates the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires hospitals to provide emergency, stabilizing care to anyone, including pregnant people, and including if they need an abortion. The Biden administration contends that as federal law, EMTALA should always supersede state law.

Oral arguments were predictably bonkers, featuring Idaho’s attorney, Josh Turner, who made a range of insane claims. Thankfully, Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan didn’t come to play. While questioning stayed polite, it was undeniably heated at different points, owing to Turner’s endless contradictions and dismissiveness of pregnant people. Turner simultaneously contended that Idaho’s ban—which prohibits abortion unless someone is imminently dying and threatens doctors with imprisonment—actually isn’t at odds with EMTALA at all (it is), and that EMTALA is forcing hospitals to perform abortions on demand. He also claimed EMTALA requires hospitals to provide emergency stabilizing care that is “available,” and since abortion isn’t “available” in Idaho because of the ban, Idaho hospitals are not required to provide it.

But even at the behest and questioning of conservative justices like Amy Coney Barrett and Brett Kavanaugh, Turner wasn’t able to specify when Idaho’s law permits emergency abortions. Turner also attempted to run away with the bullshit claim that EMTALA can be weaponized so that people with mental health emergencies can receive abortion care—which the Biden administration’s attorney quickly shut down during her remarks. (“That could never lead to pregnancy termination because that [abortion] is not the accepted standard of practice to treat any mental health emergency,” Solicitor General Elizabeth Prelogar said.) Most infuriating of all, Turner’s arguments were so asinine that the Court’s liberal, female justices were basically forced to spell out why it’s bad when pregnant people can’t get the emergency care they need.

First, Jackson described the key “conflict” she sees in Moyle: that EMTALA requires hospitals to provide treatment to stabilize a patient’s health, but this can involve abortion, which Idaho has banned. She and Turner went back and forth about his argument that Idaho’s law and EMTALA aren’t at odds, prompting Jackson to raise that, if that’s true, can’t hospitals just comply with EMTALA and not pay attention to Idaho’s law? Turner responded that to follow EMTALA requires them to follow Idaho law, which… simply does not make any sense, and literally made Jackson laugh at the inconsistency of his argument.

Sotomayor then pressed Turner on the idea that Idaho isn’t bound by EMTALA: “Let’s just take off this idea that just because it’s a state and it’s health care, the federal government has nothing to say about it,” she said. Sotomayor then had to explain preterm premature rupture of membranes (PPROM), a highly severe pregnancy condition that occurs when someone’s water breaks early—too early for a fetus or embryo to survive—in which the standard of care is abortion. She cited the story of a woman from Florida who was denied emergency abortion care while experiencing PPROM and had to wait until she was near death to have an abortion. Sotomayor also brought up how people who have been denied stabilizing abortion care have lost their reproductive organs and suffered from other long-term health detriments, which Kagan expanded on. “There will be some women who present serious medical conditions that the federal law would require to be treated who will not be treated under Idaho law,” Sotomayor said.

Justice Kagan then confronted Turner about the impacts we’re already seeing from Idaho’s abortion ban, including the cases of six different patients requiring air ambulances to transport them out-of-state for emergency abortions. “It’s become ‘transfer’ is the appropriate standard of care in Idaho, but it can’t be the right standard of care to force somebody onto a helicopter,” Kagan said. In other states that have banned abortion but claim to offer theoretical exceptions for threats to the pregnant person’s life (like Idaho), Kagan pointed out that pregnant people are currently suing some of these states because they almost died from being denied abortions, and some have said they’ve been left infertile. One woman in Texas, Amanda Zurawski, nearly died of sepsis after being denied an abortion for her nonviable pregnancy, and an infection caused one of her fallopian tubes to permanently close, even as she’s still trying to have children.

Kagan specifically accused Idaho of singling out patients experiencing pregnancy complications as not qualifying for emergency health care under EMTALA: “The abortion exceptionalism here is on the part of the state,” she said, noting that EMTALA includes the full range of medical care that’s needed to stabilize someone whose health is in jeopardy, including abortion, but Idaho’s law is singling out abortion.

Many of these points were also emphasized by Prelogar during her arguments on behalf of the Biden administration. “Today, doctors in Idaho and the women in Idaho are in an impossible position,” she said in her opening statement. “If a woman comes to an emergency room facing a grave threat to her health, but she isn’t yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate or they’re airlifting her out of the state so she can get the emergency care that she needs.”

Prelogar further noted that pregnancy complications that aren’t imminently threatening a pregnant person’s life can very quickly cascade to become life-threatening, requiring doctors to take quick action before a patient’s health deteriorates that far. When Justice Samuel Alito asked Prelogar about whether EMTALA is meant to protect patients from short-term or long-term health consequences, she pointed out that the two are inseparable, as stabilizing care is necessary to prevent permanent health consequences, regardless of whether someone is almost dying.

As we wait for a ruling from the court this summer, the lives and safety of pregnant people are at stake each day under abortion bans. Within 15 months of Idaho’s abortion ban taking effect, the state lost 21.6% of its obstetricians, who fear they could go to prison simply for doing their jobs, and pregnant people are left scrambling for health care. Karen Thompson, legal director of Pregnancy Justice, told Jezebel last week that the Supreme Court’s decision in this case could have ripple effects across the country. “This isn’t a red or blue state issue,” she said. “If federal, life-saving protections are being repealed, that is something everyone in this country is going to have to deal with regardless of where you live.”

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