The women of the Supreme Court—including conservative Justice Amy Coney Barrett—tore into a lawyer for Idaho on Wednesday over the state’s law allowing for abortions only when a woman is at imminent risk of death.
Lawyers for the state and the federal government were before the court to debate whether Idaho’s law contradicts a federal law requiring hospitals to provide stabilizing treatment to patients in emergency condition.
The female justices wasted no time digging in on Idaho’s lawyer, Joshua Turner, asking him about various cases in which women would and would not be entitled to an abortion under Idaho state law.
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Justice Sonia Sotomayor listed off a number of real-life scenarios in which women were denied abortions because of state law, including one woman whose baby had died by the time she delivered and required an immediate hysterectomy.
In a pointed line of questioning, she asked Turner whether there will be “some women who present with a serious medical condition that federal law requires to be treated that will not be treated under Idaho law.”
“If that condition exists, yes, Idaho says that abortion is not allowed,” he replied.
This is the second time this term the justices have taken up questions of abortion law, which the court threw into flux when it overturned Roe v Wade in 2022. These cases will set a stage for how far states are able to go in banning abortion, and where the federal government is able to step in.
The Idaho law concerns the state’s stringent abortion ban, which the Biden administration argues conflicts with the Emergency Medical Treatment and Labor Act, or EMTALA, which requires federally funded hospitals to provide stabilizing care for any patient whose life or health is at serious risk. The federal government argues that this care could in some cases involve abortion, putting physicians at risk of violating Idaho law if they provide it.
The state argues the federal government is manipulating EMTALA to impede on its legislation, and that the law does not require any specific procedures or state a specific standard of care.
Coney Barrett, a Trump-appointed justice who voted to overturn Roe, pushed back surprisingly strongly on Idaho’s arguments Wednesday, asking Turner if doctors could be prosecuted for performing emergency abortions when they were unsure whether the women would die or not, then accusing him of “hedging” when he said that was a matter of prosecutorial discretion.
Justice Elena Kagan also fired off a series of pointed questions about when Idaho law should be allowed to take priority over the federal statute.
“Your theory …is that a state tomorrow could say, ‘Even if death is around the corner,’ tomorrow a state could say, “Even if there’s an ectopic pregnancy,’ that’s the choice of the state, and EMTALA has nothing to say about it?” she asked.
Turner replied that was his “humble” position.
“It may be too humble for women’s health, you know?” Kagan shot back.
