Dahlia Lithwick & Mark Joseph Stern, The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side, Slate

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” ***

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care