The Latest Supreme Court Abortion Arguments Were a Terrifying GOP Fever Dream

Today the Supreme Court held a brutal two hours of arguments in a case about whether women and pregnant people deserve life-saving medical care if that care happens to be abortion. (Yes, this is the second abortion case this term.) Several justices, and the lawyer for the plaintiff, trotted out wild hypotheticals and invoked the dangerous concept of fetal personhood in a disturbing preview of the future that awaits every state if Donald Trump wins the presidency. It could mean that people face horrible medical mistreatment simply because they're pregnant and, at the most extreme end, could lead to a federal abortion ban. The case, Moyle v. United States, is about whether state abortion bans like Idaho's can override a longstanding federal law that requires emergency rooms to stabilize patients, including by offering abortion if necessary. That law, the Emergency Medical Treatment and Active Labor Act (EMTALA) says hospitals that accept Medicare funding have to stabilize patients in medical crises and deliver babies when women are in labor. But given that some states passed abortion bans that only have exceptions to prevent death, not to treat threats to health, the Biden administration reiterated hospitals' obligations after the Dobbs decision, and later sued the state of Idaho. Idaho strongly disagrees that its hospitals should have to provide abortions for threats to health—like when a woman's water breaks in the second trimester, far too early for a baby to survive but, when left untreated, could result in a life-threatening infection called sepsis or extensive blood loss known as hemorrhaging. The state worked with the right-wing Christian legal firm Alliance Defending Freedom to craft its legal arguments and one such argument raised in briefs and in the courtroom is the claim that a fetus is a patient under federal law. Justice Elena Kagan asked Josh Turner, the lawyer representing Idaho, how the state ban functions when doctors believe a woman's pregnancy complication might cause her to lose her uterus, and thereby her ability to have children in the future, but not cause her to die. Turner's response was chilling: "Congress under EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is tough when you have these competing interests." This logic is terrifying, mostly because a fetus is only a patient under EMTALA when there aren't health threats to the pregnant person. The woman is the patient first and foremost. Idaho is trying to claim that because the words "unborn child" are used in the law, it means that the interests of the woman and the fetus have equal weight, when they do not. This is fetal personhood and it's scary not least because the people being denied ER treatment in Idaho and other states are often in their first and second trimester and there's no way the embryo or fetus will survive. The fetus is a lost cause at that stage, yet states like Idaho say that women themselves need to be facing death before they can have an abortion. (People coming to ERs later in pregnancy with complications would typically have labor induced and then doctors would try to keep the fetus alive.) Justice Neil Gorsuch seemed to agree with Idaho and ADF, asking "What do we do with the EMTALA's definition of individual to include both the woman and, as the statute says, the unborn child?" Justice Samuel Alito also seemed anxious to promote this idea. Around the 90-minute mark, Alito jumped in to say that "one potentially very important phrase in EMTALA" had hardly been mentioned, which is "EMTALA’s reference to the woman's 'unborn child.'" He inquired, "Isn't that…