Even more than in the earlier case, a challenge to the availability of the abortion drug mifepristone argued last month, gender — specifically, the evident fury of the liberal justices at the audacity of Idaho’s argument — was an unavoidable takeaway. Perhaps that is because, in this case, unlike in the mifepristone dispute, abortion rights advocates seem poised to lose.
Gender hung over the proceedings like a silent rebuke to that apparent inevitability. After the now-traditional first query from Justice Clarence Thomas, the longest-serving justice, it took a good 25 minutes for another male justice to ask a question.
The fourth female justice, Amy Coney Barrett, is no fan of abortion rights, and it is hard to see her ruling against Idaho, but even she seemed more interested than her male colleagues in understanding the precise contours and practical implications of Idaho’s draconian law. “You are hedging,” she chided Idaho lawyer Joshua Turner at one point, as she grilled him about when the emergency exceptions would apply.
And it seemed fitting that the advocates, too, divided along gender lines, with Turner matched — or outmatched — by Solicitor General Elizabeth B. Prelogar, a fellow Idahoan.
Prelogar is always a fierce advocate, but her passion on Wednesday seemed particularly personal, as she laid out the “devastating consequences” the Idaho law has imposed on women there since the court’s decision removing constitutional protection for abortion rights.
“EMTALA’s promise is simple but profound: No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care,” Prelogar said. “This case is about how that guarantee applies to pregnant women in medical crisis.”
The solicitor general cited the situation of a woman whose amniotic sac has ruptured prematurely, and needs immediate treatment to avoid infection, sepsis and the risk of hysterectomy, or the woman with severe preeclampsia facing a high risk of kidney failure that could require lifelong dialysis. “In cases like these where there is no other way to stabilize the woman’s medical condition and prevent her from deteriorating,” Prelogar said, “EMTALA’s plain text requires that she be offered pregnancy termination as the necessary treatment.”
Turner did his best to minimize the real-world impact of the Idaho law, emphasizing that the state Supreme Court had offered a softened interpretation that would allow abortions to proceed in many such emergency situations, even if death isn’t imminent. Sure enough, there was Justice Brett M. Kavanaugh, leaping at the possible escape route that there wasn’t much disagreement here after all. Nice try — except that’s not what’s actually happening in Idaho, where women are either having care postponed or are being sent out of state.
The liberal justices weren’t buying what Turner was peddling: Not his befuddling claim that there was little actual “daylight” between the lifesaving abortions permitted under state law and the requirements of the federal statute to protect women’s health. Not his contradictory assertion that the federal law doesn’t preempt state rules, the Constitution’s supremacy clause be damned. Not the far-reaching implications of that position for states that might choose to go even beyond Idaho’s extreme position.
“What you are saying is that there is no federal law on the book that prohibits any state from saying, even if a woman will die, you can’t perform an abortion,” Justice Sonia Sotomayor told Turner.
“I had thought that this case was about preemption and that the entirety of our preemption jurisprudence is the notion that the federal government in certain circumstances can make policy pronouncements that differ from what the state may want or what anybody else may want, and the supremacy clause says that what the federal government says takes precedence,” said Justice Ketanji Brown Jackson.
Justice Elena Kagan could scarcely conceal her exasperation with Idaho’s reading of the law.
“Your theory of EMTALA is … that a state tomorrow could say even if death is around the corner, a state tomorrow could say even if there’s an ectopic pregnancy, that still, that’s a choice of the state and EMTALA has nothing to say about it,” she told Turner.
“And that understanding is a humble one with respect to the federalism role of states as the primary health-care providers for their citizens, not the federal government,” Turner replied.
“It may be too humble for women’s health, you know?” Kagan said acidly.
Turner had no response. There isn’t one. Women’s health is not a priority for Idaho — or for this court.
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