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And this is the proof — if more were needed — that the conservative-dominated federal judiciary, including the U.S. Supreme Court, doesn’t give a damn about women’s health.
The latest such example came Friday, when the high court agreed to hear an abortion case from Idaho. In a move eclipsed by its same-day decision to hear the Trump disqualification dispute, the court said it would decide whether Idaho’s stringent abortion law, which provides exceptions only when necessary to save the mother’s life, must give way to a federal law requiring hospitals to provide “stabilizing treatment” for patients facing “emergency medical conditions.”
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It’s worth noting that the justices leapfrogged their regular procedures to take the Idaho case while it is still before a federal appeals court. You might recall that the court declined to take this step, known as granting certiorari before judgment, in the far more urgent circumstance of hearing former president Donald Trump’s claim of absolute immunity from criminal prosecution.
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But that’s not all — and the other part is much worse. The court didn’t just reach out to take the case prematurely — it also issued an order that effectively prevents the federal government from enforcing emergency access to abortions in the meantime.
Still, all this augurs poorly for the eventual outcome, for a simple reason of math: It takes just four votes to grant a hearing, but five votes to issue a stay. And the court’s action turns the regular rule for approving such an order on its head.
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The court’s ordinary standard requires that the party seeking to prevent enforcement demonstrate that it “would likely suffer irreparable harm.” What’s the supposedly irreparable harm to the state of Idaho here? That its abortion law won’t be enforced in certain unusual and tragic situations — an outcome, the state told the court, that “thwarts Idaho’s exercise of democratic self-government on the crucial matter of protecting human life.”
No matter that there is actual, irreparable harm to the actual women on the other side of the equation. Indulge me in repeating them: Limb amputation. Coma. Stroke. Hysterectomy. Organ failure.
A clue that Idaho’s claim of suffering irreparable harm is bogus? As the Biden administration noted in its court papers, the state had never asked for relief before, although the case dates to August 2022, shortly after the Supreme Court eliminated the constitutional right to abortion. Idaho’s current assertion of irreparable harm, the administration said, is “refuted by [the] long and unexplained delay in seeking relief.”
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Which brings me to my assertion that the conservative justices, at least five of them anyway, don’t care about women’s health. What else could explain their aggressive intervention here? They elevate abstractions such as state sovereignty or contested moral issues, like the status of the fetus, above the flesh-and-blood realities of everyday American women in desperate situations.
In this disregard, they are not alone. In a Texas case decided last week, the ultraconservative U.S. Court of Appeals for the 5th Circuit similarly discounted the needs of women in deciding a different case on the same issue. Ruling that the 1986 federal law, the Emergency Medical Treatment and Labor Act, or EMTALA, didn’t require hospitals to provide abortions in emergency circumstances where that conflicted with state law, it made no reference, zero, to the potential harms to pregnant women.
Rather, the appeals court seized on the fact that the federal law refers to hospitals’ obligation to protect “the health of the woman or her unborn child.” EMTALA, the Trump-appointed judge in that case wrote, imposes “equal stabilization obligations” to protect “both the pregnant woman and her unborn child.” Fact check: it doesn’t.
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In Idaho, the Biden administration went to court to prevent the state from enforcing its draconian abortion law in emergency situations. It said the protections of EMTALA, intended to stop the hospital practice of dumping indigent patients who turned up at emergency rooms, preempted state law in those narrow circumstances.
A federal district judge preliminarily agreed and blocked the state from applying its abortion law in such situations. A panel of the 9th Circuit, composed entirely of Trump appointees, disagreed. Then, at the Biden administration’s request, the full 9th Circuit stepped in, reinstating the lower court order.
The question of how EMTALA intersects with state law on abortion is complex. What’s not difficult is understanding why the law refers to the “unborn child” — and it’s not because Congress meant hospitals to make trade-offs between maternal and fetal health.
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In fact, it mentions the “unborn child” in the context of making sure that hospitals don’t transfer women in active labor to other facilities. As originally written, it contained a loophole that let hospitals refuse stabilizing care to pregnant women when their fetus, but not their own health, was in jeopardy. Congress changed that to provide additional protections to the endangered fetus, not to force pregnant women to risk their own health.
Idaho insists on ignoring this inconvenient fact. “When Congress included unborn children in EMTALA’s purview, it necessarily left states free to establish parameters to govern the difficult circumstances where the mother’s and child’s health are both at risk,” the state told the Supreme Court.
No. The law protects individuals. Living, breathing, pregnant women who find themselves facing terrible choices — decisions that the law leaves to them, not to zealots, on the bench and off, who cruelly elevate fetal life over a woman’s health.
I’ll say it a third time: Limb amputation. Coma. Stroke. Hysterectomy. Organ failure. These are the risks the justices think women should be forced to endure. This is what the high court has permitted with its unwarranted stay and may well allow in perpetuity.
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Coma. Stroke. Limb amputation. Hysterectomy. Organ failure. These are some of the consequences that pregnant women might face if they don’t obtain abortions in emergency circumstances, such as premature rupture of the amniotic sac or eclampsia.
And this is the proof — if more were needed — that the conservative-dominated federal judiciary, including the U.S. Supreme Court, doesn’t give a damn about women’s health.
The latest such example came Friday, when the high court agreed to hear an abortion case from Idaho. In a move eclipsed by its same-day decision to hear the Trump disqualification dispute, the court said it would decide whether Idaho’s stringent abortion law, which provides exceptions only when necessary to save the mother’s life, must give way to a federal law requiring hospitals to provide “stabilizing treatment” for patients facing “emergency medical conditions.”
It’s worth noting that the justices leapfrogged their regular procedures to take the Idaho case while it is still before a federal appeals court. You might recall that the court declined to take this step, known as granting certiorari before judgment, in the far more urgent circumstance of hearing former president Donald Trump’s claim of absolute immunity from criminal prosecution.
But that’s not all — and the other part is much worse. The court didn’t just reach out to take the case prematurely — it also issued an order that effectively prevents the federal government from enforcing emergency access to abortions in the meantime.
Still, all this augurs poorly for the eventual outcome, for a simple reason of math: It takes just four votes to grant a hearing, but five votes to issue a stay. And the court’s action turns the regular rule for approving such an order on its head.
The court’s ordinary standard requires that the party seeking to prevent enforcement demonstrate that it “would likely suffer irreparable harm.” What’s the supposedly irreparable harm to the state of Idaho here? That its abortion law won’t be enforced in certain unusual and tragic situations — an outcome, the state told the court, that “thwarts Idaho’s exercise of democratic self-government on the crucial matter of protecting human life.”
No matter that there is actual, irreparable harm to the actual women on the other side of the equation. Indulge me in repeating them: Limb amputation. Coma. Stroke. Hysterectomy. Organ failure.
A clue that Idaho’s claim of suffering irreparable harm is bogus? As the Biden administration noted in its court papers, the state had never asked for relief before, although the case dates to August 2022, shortly after the Supreme Court eliminated the constitutional right to abortion. Idaho’s current assertion of irreparable harm, the administration said, is “refuted by [the] long and unexplained delay in seeking relief.”
Which brings me to my assertion that the conservative justices, at least five of them anyway, don’t care about women’s health. What else could explain their aggressive intervention here? They elevate abstractions such as state sovereignty or contested moral issues, like the status of the fetus, above the flesh-and-blood realities of everyday American women in desperate situations.
In this disregard, they are not alone. In a Texas case decided last week, the ultraconservative U.S. Court of Appeals for the 5th Circuit similarly discounted the needs of women in deciding a different case on the same issue. Ruling that the 1986 federal law, the Emergency Medical Treatment and Labor Act, or EMTALA, didn’t require hospitals to provide abortions in emergency circumstances where that conflicted with state law, it made no reference, zero, to the potential harms to pregnant women.
Rather, the appeals court seized on the fact that the federal law refers to hospitals’ obligation to protect “the health of the woman or her unborn child.” EMTALA, the Trump-appointed judge in that case wrote, imposes “equal stabilization obligations” to protect “both the pregnant woman and her unborn child.” Fact check: it doesn’t.
In Idaho, the Biden administration went to court to prevent the state from enforcing its draconian abortion law in emergency situations. It said the protections of EMTALA, intended to stop the hospital practice of dumping indigent patients who turned up at emergency rooms, preempted state law in those narrow circumstances.
A federal district judge preliminarily agreed and blocked the state from applying its abortion law in such situations. A panel of the 9th Circuit, composed entirely of Trump appointees, disagreed. Then, at the Biden administration’s request, the full 9th Circuit stepped in, reinstating the lower court order.
The question of how EMTALA intersects with state law on abortion is complex. What’s not difficult is understanding why the law refers to the “unborn child” — and it’s not because Congress meant hospitals to make trade-offs between maternal and fetal health.
In fact, it mentions the “unborn child” in the context of making sure that hospitals don’t transfer women in active labor to other facilities. As originally written, it contained a loophole that let hospitals refuse stabilizing care to pregnant women when their fetus, but not their own health, was in jeopardy. Congress changed that to provide additional protections to the endangered fetus, not to force pregnant women to risk their own health.
Idaho insists on ignoring this inconvenient fact. “When Congress included unborn children in EMTALA’s purview, it necessarily left states free to establish parameters to govern the difficult circumstances where the mother’s and child’s health are both at risk,” the state told the Supreme Court.
No. The law protects individuals. Living, breathing, pregnant women who find themselves facing terrible choices — decisions that the law leaves to them, not to zealots, on the bench and off, who cruelly elevate fetal life over a woman’s health.
I’ll say it a third time: Limb amputation. Coma. Stroke. Hysterectomy. Organ failure. These are the risks the justices think women should be forced to endure. This is what the high court has permitted with its unwarranted stay and may well allow in perpetuity.
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