Reality on abortion hits the Supreme Court
This week, the Supreme Court heard its second abortion case since reversing Roe v. Wade in 2022, this one on a 1986 law on emergency abortions. Within weeks of Roe’s reversal, the Biden administration had issued guidance on the Emergency Medical Treatment and Labor Act, or EMTALA, requiring physicians to perform emergency abortions even when those procedures would be prohibited by state abortion laws. Whether the Biden administration was right about the statute’s interpretation seemingly fractured the Supreme Court. But this time, something about the argument felt fundamentally different: The oral argument dealt not in abstractions or high-flown legal language but in the real-world experience of pregnancy since the demise of abortion rights.
The attorney for Idaho, Joshua Turner, argued that EMTALA did not set any national standard of care — states were free to do what they wanted on abortion. Turner also argued that statutory references to the “unborn child” meant that the law treated fetuses as equal patients — and that Congress could not have intended to guarantee pregnant patients access to abortion in medical emergencies.
Many of the male justices seemed comfortable keeping the argument at this level of abstraction. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas asked whether Congress would have the authority under its spending power to institute a national standard of care. Justices Brett Kavanaugh and Samuel Alito seemed concerned that if EMTALA mandated abortion access in health emergencies, the term “health” would be interpreted too broadly to include mental health emergencies. Chief Justice John Roberts wondered how the law would intersect with federal statutes protecting physicians with conscience-based objections to abortion. To hear this portion of the argument, one would think the case posed interesting, intellectual questions for the justices to chew on in chambers.
But the female justices pushed back. Justice Elena Kagan asked Turner whether a state could deny treatment for patients experiencing ectopic pregnancy. Turner suggested that EMTALA does nothing to stop this. He then faced a barrage of questions about how Idaho law would treat a variety of other patients. What about a patient who experienced the premature rupture of membranes, who would face a much higher risk of sepsis and death? Or a patient who would face the loss of fertility or even an organ if a pregnancy continues? Even Justice Amy Coney Barrett, a member of the court’s conservative supermajority, seemed flummoxed by some of Turner’s responses. Turner seemed to say that Idaho law would permit most emergency abortions — but also said the matter would be left to the good-faith discretion of physicians. Barrett pressed on this point: What would happen if a prosecutor disagreed with a doctor’s assessment and wanted to bring charges against a doctor? Turner said that would be left to the discretion of the prosecutor, not the doctor.
The reality of pregnancy in a post-Roe America intruded time and time again in the court’s argument. Justice Sonia Sotomayor spoke about patients being airlifted to outof-state hospitals to receive care. Kagan asked Turner what would happen if conservative states prohibited abortion even when a woman would die. His answer was the same: Federal law did nothing to change that.
The fall of Roe, it was clear, has made it much harder to discuss abortion only in the abstract, even in the Supreme Court. When the court debated the fate of abortion rights in 2022, the conservative justices treated the question as one about democracy. Dismantling abortion rights, the argument went, would restore the abortion issue to the people and their elected representatives, who could set state abortion policy as they chose.
The experience of pregnancy was almost entirely missing from the colloquy within the court about Roe’s fate. This absence was even more striking in the court’s opinion on Dobbs v. Jackson Women’s Health Organization, which reversed Roe. In passing, Alito mentioned that if women had relied on legal abortion, they were not “without … political power” to change the laws in their states.
Without Roe, the experience of pregnancy in America has changed. Physicians, as the Associated Press reports, are turning away patients experiencing emergencies in pregnancy because they fear violating state criminal laws. Few are willing to use “goodfaith judgment,” as Turner put it, when guessing wrong could cost them their medical licenses or liberty.
And pregnancy has always been complex and dangerous. In principle, it may seem easy for some of the justices to distinguish a threat to the patient’s life from a danger to patient health. But in practice, the nature of pregnancy makes that line difficult to draw. How many liters of blood must a patient lose before being deemed close to death? How low must their blood pressure get? And do all of these questions become academic when physicians are too afraid of criminal consequences to intervene?
None of these questions may affect the justices of the Supreme Court personally, at least in the short term. But that seems unlikely to hold. Before Roe, for example, Justice Lewis Powell, a skeptic of the idea that the Constitution protected broad privacy rights, had an experience that supposedly shaped his outlook. A 19-year-old office helper called Powell, then a partner at a law firm, in the middle of the night because his pregnant girlfriend had tried to end a pregnancy, injured herself, and bled to death.
None of that means that the court will side with the Biden administration in the case. If anything, on balance, the conservative justices seemed more skeptical of the administration’s position. But if the court does side with Idaho in June, it may not be able to ignore the real-world costs of its ruling overturning Roe anymore.
Many of the male justices seemed comfortable keeping the argument at this level of abstraction. But the female justices pushed back.