The risk of stating plainly what Idaho argued at the US supreme court on Wednesday morning is that it is so sadistic and extreme that people might not believe you. Idaho has one of the most restrictive abortion bans in the country. Prohibiting all abortions at any stage of gestation, with no exceptions for rape or incest, the Idaho law allows doctors to perform abortions in cases where the life – but not “merely” the health – of the pregnant woman is at risk.
In practice, this has wound up being a ban on abortions needed to save women’s lives: according to Idaho hospitals, six pregnant women experiencing medical emergencies have had to be airlifted across state lines to hospitals in states with life and health exemptions in the months since Idaho began enforcing its abortion ban. One way to describe this state of affairs is to say that Idaho’s abortion law has come into conflict with medical best practice. Another way to describe it is to say that the law has forced pregnant women to flee the state for their lives.
The federal government says that Idaho’s ban on health-preserving emergency abortions conflicts with a federal statue known as the Emergency Medical Treatment and Labor Act, or Emtala. The 1986 law requires that all emergency rooms located in hospitals that receive Medicare funding – that is, basically all of them – are required to issue stabilizing care to patients facing medical emergencies. The law was designed to ensure that patients in medical crisis could not be turned away from emergency rooms for lack of ability to pay.
In practice, the law also formalized the spirit of the medical profession’s ideals, giving doctors and hospitals an obligation to preserve their patients’ health, prevent further deterioration of those in crisis, and save lives. It creates an affirmative obligation for doctors to treat patients.
This obligation – to intervene in a medical emergency, and to stand between a patient and the maiming, organ failure, or death that may await her in the event of medical inaction – is precisely what the Idaho law prohibits. In barring abortions to preserve women’s health, the state forces those women to deteriorate until they are close to death – threatening doctors with professional sanction, prosecution and imprisonment if they treat the patients that the state has deemed undeserving of treatment.
In short, Idaho’s abortion ban requires doctors to treat pregnant women’s health as disposable, and the loss of their lives as an acceptable risk. For this, the Biden administration sued. As the case wound its way through the federal courts, the supreme court stepped in to allow Idaho to enforce its abortion ban pending litigation, even without a health exception. Their own Dobbs decision, after all, did not require any state to allow abortions in the case of risks to women’s health. Sepsis, organ failure and loss of fertility in women were thereby tacitly accepted by the court as an acceptable cost of prohibiting abortions.
The oral arguments that the supreme court heard on the question of whether state abortion bans would be allowed to pre-empt federal laws protecting women’s access to emergency healthcare were nominally about the scope and authority of the Emtala law. That’s what the conservative justices seemed to be talking about when they brought up concerns that Emtala constituted an improper exercise of congressional spending power, or when they wondered aloud if the law requiring hospitals to save women’s lives in cases of emergency might violate the “conscience rights” of Catholic healthcare conglomerates; it’s what they pretended to be talking about when Gorsuch and Alito both floated the possibility that Emtala applied to fetuses, thus supplanting women’s rights to life-saving treatment with that of what the justices pointedly called “unborn children” in yet another signal of their interest in fetal personhood.
But what is really at stake is not the Emtala law – which, like all federal laws, is now subject to the distortion or selective nullification of the court, according to the conservative majority’s whims. What was really at stake was the status of American women, who now have to beg before the courts not to face legally enforced medical negligence that will kill and maim them.
And what is at stake, too, is the extremism of the anti-choice movement, whose insistence on criminalizing life- and health-saving abortions can have no explanation other than bloodthirsty sadism. As the solicitor general, Elizabeth Prelogar – the Biden administration’s lawyer at the supreme court – pointed out in oral arguments, there is no way to preserve the life of a nonviable embryo or fetus without preserving the life of the pregnant woman who carries it; Idaho’s policy makes no sense if preserving fetal life is their goal. But the preservation of fetal life is not the anti-choice movement’s goal. Their goal is to inflict as much suffering on women as possible.
How close to death does a woman have to be before she can qualify for an emergency abortion in a state that bans it? The anti-choice movement’s argument is that women are receiving abortions when they are not close enough. None of this is hypothetical – it is not a question of suffering that could happen, possibly, in the future. These are needless, life-altering injuries that bans like Idaho’s are inflicting on women right now.
During an impassioned series of questions she put to Idaho’s lawyer, Justice Sonia Sotomayor recounted the story of Anya Cook, a Florida woman whose water broke at 16 weeks, before her fetus was viable but after her state’s abortion ban cutoff. Cook was inevitably going to lose her pregnancy, and was at risk of infection. But an emergency room turned her away, saying she wasn’t sick enough. She was not able to get treatment until the next day, when she was near death.
The fact of the matter is that the distinction that the anti-choice movement seeks to make, between “life-saving” abortions and merely “health-saving” ones, is empirically impossible to determine: medical risks in pregnancy escalate quickly and unpredictably, meaning that a medical emergency can become life-or-death with little warning. It is unclear whether this fictional distinction is one the court will enshrine in law. But in another sense, the anti-choice movement has already won: the abortion debate now is being waged not on questions of women’s equality, dignity, and self-determination – these have already been sacrificed by the law as supposedly incompatible with the status of pregnancy.
What is at stake now – what was being debated in court on Wednesday – is how much women can be forced to suffer, how much danger they can be placed in. The anti-choice movement, and its allies on the bench, have shown once again that there is no amount that will satisfy them.
