Even more so than the challenge to the availability of the abortion drug mifepristone asserted last month, the liberal justices' apparent outrage at the audacity of the gender, and in particular, the Idaho claims, became an inevitable issue. Perhaps that's because in this case, unlike the mifepristone dispute, abortion rights advocates seem poised to lose.
The topic of gender hung over the proceedings like a silent rebuke of its apparent inevitability. After the now-traditional opening question by Justice Clarence Thomas, the longest-serving justice, it took 25 minutes for another male judge to ask a question.
The fourth female justice, Amy Coney Barrett, does not support abortion rights and is unlikely to rule against Idaho, but even she does not understand the exact nature of Idaho's strict law. They seemed more interested than their male colleagues in understanding the overview and practical implications. “You're being risk-averse,” she chided at one point, grilling Idaho attorney Joshua Turner on when the emergency exception would apply.
And it seems no surprise that advocates were divided along gender lines, with Attorney General Elizabeth B. Preloger, a fellow Idahoan, matching or even beating Mr. Turner. Ta.
Preloger has always been an ardent advocate, but her passion Wednesday seemed especially personal, citing the challenges that Idaho law imposes on women in the state since a court ruling that struck down constitutional protections for the right to abortion. He described the “catastrophic consequences'' of the situation.
“EMTALA's promise is simple but profound: No one who comes to the emergency room in need of urgent care should be denied the stabilizing care they need,” Preloger said. “This lawsuit is about how that guarantee applies to pregnant women who have a medical crisis.”
The lawyer said women face premature rupture of the amniotic sac and require immediate treatment to avoid the risk of infection, sepsis, hysterectomy, or are at high risk of kidney failure, which may require lifelong dialysis. The situation of a woman with severe pre-eclampsia who was suffering from severe pre-eclampsia. “In these cases, when there is no other option but to stabilize the woman's condition and prevent it from worsening,” Preloger said, “the plain text of EMTALA requires that abortion be offered as the necessary treatment.” Stated.
Turner said he will do his best to minimize the real-world impact of the Idaho law, noting that the state Supreme Court allows abortions to proceed in many such emergencies, even if death is not imminent. He emphasized that he had presented a relaxed interpretation. Sure enough, there was Justice Brett M. Kavanaugh, who jumped on the escapade of saying, after all, there's no major disagreement here. I wish you the best. That's not what's actually happening in Idaho. There, women's care is either deferred or they are forced out of state.
Liberal justices did not accept Turner's argument. It's not Turner's baffling assertion that there was “very little chance of seeing the light of day” between life-saving abortions allowed under state law and federal law's requirements to protect women's health. The Constitution's Supremacy Clause is to be condemned, not his contradictory assertion that federal law does not supersede state rules. That position does not have far-reaching implications for states that may choose to go further than Idaho's extreme position.
Justice Sonia Sotomayor told Turner: “What you are saying is that there is no federal law that prohibits states from saying that even if the woman dies, she cannot have an abortion.”
“I think this case is about preemption, and our whole preemption jurisprudence is that under certain circumstances the federal government makes policy announcements that are different from what the states want or what someone else wants. “This clause says that what the federal government says takes precedence,” Judge Ketanji Brown Jackson said.
Justice Elena Kagan was outraged by Idaho's interpretation of the law.
“Your theory on EMTALA is that even if death is imminent, the state of tomorrow can say, even if there is an ectopic pregnancy, the state of tomorrow can say, but it is still the state's choice. , EMTALA is that you can't say anything about it,'' she told Turner.
“And that understanding is humbling about the federalist role of the states as the people's primary health care providers, not the federal government,” Turner responded.
“That might be too modest for women's health, wouldn't it?” Kagan said acidly.
Mr. Turner did not respond. Not one. Women's health is not a priority for the state of Idaho or for this court.
