The Latest Abortion Case at the Supreme Court Is Under-the-Radar Terrifying

Are pregnant women who show up in emergency rooms people, or mere vessels for potential life? Stay tuned to find out!

The Latest Abortion Case at the Supreme Court Is Under-the-Radar Terrifying
Photo by José de Azpiazu / Unsplash

Yes, there is another abortion case on the docket for this Supreme Court term. The first was about a medication abortion drug, and this one is about whether pregnant women who show up in emergency rooms are people or mere vessels for potential life. Can't wait to hear what those black-robed freaks have to say!

When the Supreme Court overturned Roe v. Wade in 2022, it meant states could enforce abortion bans. In Idaho, there's a near-total ban on the procedure unless "necessary to prevent the death of the pregnant woman.” As we've seen in the last two years, women and pregnant people can experience a lot of suffering but still not qualify for an abortion in states like Idaho. Their water could break too early for a fetus to survive—which can result in dangerous blood loss, a life-threatening infection known as sepsis, and potential loss of future fertility—or they could develop preeclampsia and be at risk of having a stroke.

The Biden administration sued Idaho in August 2022 because they said its abortion ban violates a federal law on hospitals' obligation to patients. Idaho is fighting the case and doubling down on the idea that women and pregnant people have to be on the brink of death before they can have an abortion in the state. The Supreme Court let the Idaho law take effect in January, which is not a good sign.

Arguments in United States v. Idaho are on Wednesday, April 24, at 1o am. Here's a primer on what's going on, and the stakes of the case.

The law in question and who opposes it

The case centers around Emergency Medical Treatment and Active Labor Act, or EMTALA, a law from 1986. Hospitals that accept Medicare funding have to screen patients who show up at the ER to see if they have a medical emergency and, if they do, provide them with stabilizing care—that care can include abortion if the doctor thinks it's necessary. If the hospital can't adequately treat the patient, they have to transfer them somewhere that can. (EMTALA was passed to prevent private hospitals from dumping patients without insurance on the street or outside county hospitals.)

In essence, Idaho has a life exception, but not a health exception. Attorney General Merrick Garland said in 2022 that "Idaho's law would make it a criminal offense for doctors to provide the emergency medical treatment that federal law requires." The Biden administration isn't even trying to fully overturn the Idaho ban—they just want people facing threats to their health to be able to get abortions if their doctor thinks that's the best treatment. (Unsurprisingly, Texas lawmakers also hate EMTALA and the ruling here could impact that state's case, too.)

Idaho is having the ultra right-wing Alliance Defending Freedom (ADF) represent it in the case, and ADF claims that this decades-old law requires stabilizing care for the "unborn child" as well as the pregnant woman. But those provisions about the fetus are actually about risks when transferring a woman in active labor, as one legal expert told The Intercept. ADF is acting as if two patients are getting care at the ER. The group is advancing an argument for fetal personhood, going so far as to claim that fetuses are people under the Idaho Constitution, per Rewire News Group. But fetuses are not people, which means they aren't patients and can't consent to medical care.

Fetal personhood and medical violence

Anti-abortion activists claim they want to protect both women and children, but if a fetus is a person with legal rights, then a pregnant woman is not. As one amicus brief notes, if the court rules for Idaho, it "will succeed in demoting pregnant women to second-class status under EMTALA."

Catholic hospitals have long denied agency to women, but now we're hearing more and more about ERs turning pregnant people away, leaving them to miscarry in bathrooms and cars, or wait until they get sick enough to need immediate intervention. Other people in ban states experiencing pregnancy complications or miscarriages are being forced to get C-sections rather than receiving the much less invasive standard of care, which is dilation and evacuation. That's because a D&E is an abortion procedure, and hospitals are literally trying to avoid the appearance of providing abortions.

Some Idaho patients are being airlifted out of state and could be hit with huge medical bills depending on their insurance. (That could also affect care for other patients in the hospital. As one administrator told States Newsroom, "If we occupy an air transport with a patient who could completely receive the totality of her care right here, safely, it’s potentially dangerous for other patients.”)

Forcing people to endure needless suffering, disabling complications, and potentially ruinous bills for a fetus that may not even survive is medical violence. And the long-term goal of cases like this one is to establish fetal personhood, which would ban all abortion nationwide and could end IVF as we know it and limit access to some forms of birth control.

Bogus conscience claims from ADF

Idaho and its supporters argue that the Biden administration is trying to force ER doctors to provide abortions—but doctors can opt out of providing care for which they have religious objections under what are known as the Church Amendments. ADF lawyers are going to try to claim that the government is bullying poor, little ER doctors when there's no evidence of that happening. The plaintiffs here are the state of Idaho and Mike Moyle, speaker of the Idaho House of Representatives; not ER doctors.

from Alliance Defending Freedom's February 2024 brief

Even before hearing arguments, it seems likely that the 6-3 conservative Supreme Court will side with Idaho. They might even release their ruling in the abortion pill case—where the argument went disastrously for ADF, and people expect them to side with the FDA—the same day as Idaho in an attempt to look even-handed. But make no mistake, any ruling that gives unviable fetuses more legal rights, which necessarily come at the expense of pregnant women, is a disaster. And it's a preview of what's to come should Donald Trump win in November.


  • Intrusive thought on the Supremacy Clause: