"Today’s decision is not a victory for pregnant patients in Idaho," Supreme Court Justice Ketanji Brown Jackson declared on Thursday. "It is delay."
In her dissent on Moyle v. the United States, Brown Jackson highlighted the only takeaway journalists and voters should get from this case about whether Idaho can force emergency room doctors to turn away pregnant patients in crisis. During oral arguments in April, it became clear that the conservative justices do not care if women experiencing a failing pregnancy are denied care, which could result in permanent injuries or even death. Justice Samuel Alito even took time to gripe that the federal law requiring emergency rooms to provide stabilizing care did not use the phrase "unborn child." He got annoyed when Justice Sonia Sotomayor mentioned the actual living people being airlifted out of Idaho so doctors in nearby states could help. Physicians for Human Rights documented some of the conditions women who are denied this treatment can experience: "stroke, seizure, liver damage, kidney failure, bleeding, complications," as well as "septic shock," which can lead to the loss of the uterus or even death.
Making pregnant patients pay the price has always been the point for conservatives.
Sentencing women to organ failure or even death for the "crime" of having a pregnancy go wrong will be politically unpopular for Republicans, however, and this is a presential election year. So, as a massive campaign contribution to Donald Trump, the GOP majority on the Supreme Court decided they won't be deciding on this until some point in the future, oh-so-coincidentally after the election. Instead, the justices punted the case back to the lower courts, to fiddle with it more. Next time, the conservative majority will likely feel the political environment is more conducive for a "just die already, ladies" opinion.
In her dissent, Jackson doesn't say the word "election," but she does telegraph her withering contempt for the procedural bad faith employed by the Republican justices. "And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price," she writes.
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Making pregnant patients pay the price has always been the point for conservatives. Pregnant women are a favorite scapegoat for Christian right anger over social change. As more women get education and jobs outside of the home, conservative Christians have turned ever more devoted to forced childbirth. As childless women closed the pay gap with men, the pressure to make motherhood mandatory rose. As more women delay marriage — or avoid it altogether — Republican views around abortion became more sadistic. Abortion bans in places like Idaho are so draconian that, even when there's no chance a pregnancy will result in a living child, patients are still denied abortion.
That the six Republican justices on the Supreme Court are hopelessly in the tank for Trump has been well-established, and not just because three of them were appointed by the fraud himself. As many legal experts have pointed out regarding another controversial case, there was no need for the Supreme Court to entertain Trump's ludicrous claim to be "immune" from federal prosecution for his attempted coup. Instead, the court took up the case and has delayed ruling on it for so long that there's little to no chance of a trial before the election.
The same logic appears to be in play in this emergency room case. As Jackson notes in her dissent, there hasn't been "any change in today’s cases that might eliminate or undermine the need for this Court’s review." She points out that this case or one just like it will be back on their docket fairly soon. Punting makes no sense from a legal or material view. Unless, of course, the material interest is in making sure Trump wins the election.
By playing these games, the Republican justices no doubt hoped to score friendly headlines that made it seem they and the larger GOP aren't so bad. They did score a few, such as the NPR headline, "Supreme Court allows Idaho to offer emergency medical abortions." Luckily, most outlets appeared to understand that such a headline is misleading. The New York Times, ABC News, NBC News, and the Washington Post attached "for now" to their headlines. Even cursory readers may understand that, if Trump gets elected, laws forcing women to bleed out in hospital parking lots will go into full effect.
There's a good chance this could backfire on the court and Trump's campaign. Trump wants nothing more than for the abortion issue to go away, especially as there's no doubt that President Joe Biden's campaign plans to run non-stop ads featuring Trump bragging about how he's the one who got Roe v. Wade overturned. If voters understand that Republicans are just getting started with the abortion bans, this will remain a live issue.
On the question of emergency care for women experiencing a failing pregnancy, the choice is a stark one: If Trump is in the White House, the federal government will tell states to ban doctors from intervening in these emergencies. If Biden is president, the federal government will continue to insist that it's illegal to force pregnant women to bleed to death rather than have a doctor help her.
Some readers are no doubt confused as to why it's so important for Republicans to stand by laws to deny medical interventions for pregnancies that are already failing. The simple answer was memorably offered by Atlantic writer Adam Serwer in 2018: "The cruelty is the point." For people who want to lash out at women, forcing a stranger into kidney failure scratches that sadistic urge.
But there's a slightly less abstract concern in the mix, as well: women who use pills to evade abortion bans. Abortion pills are easy to transport and there's significant evidence that women in red states are using pills to abort at home, away from the prying eyes of law enforcement. In the vast majority of cases, this can be done safely. In a small percentage of cases, the abortion is incomplete and a doctor at the hospital needs to finish it. There is no way, from a medical standpoint, to tell the difference between a woman who is experiencing a natural miscarriage or one induced by a pill. To punish women who have side effects from abortion pills, Republicans would condemn all women experiencing pregnancy failure, even when that pregnancy was wanted.
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In addition, there's a widespread notion in anti-abortion circles that a "good" woman would rather die than have an abortion. Anti-choice websites regularly push sentimental stories that turn women into martyrs for refusing life-saving medical care. Readers are expected to swoon over a woman who died alongside her fetus, even though that choice invariably leaves her husband a widower and her children motherless. The movement doesn't want women to have the choice to live. The far-right idealizes the 19th century, after all. That was an era of sky-high maternal mortality rates.
Perhaps Republicans are hoping the complexity of this case creates a messaging problem for pro-choice forces. But the message is simple: "If Trump wins, hospitals will have to turn pregnant patients away." This will be reinforced by the still ongoing march of horror stories of women who got catastrophic diagnoses from their ob-gyn and were forced to travel out of state for a medically necessary abortion. Or worse, women who are forced to give birth to a dead baby. In Texas, the abortion ban has already led to a 13% increase in infant deaths. Most of that is due to women continuing pregnancies that doctors would have aborted, if it were legal.
In the first presidential debate in 2020, Biden declared abortion is on the ballot. Trump, lying as usual, denied this and claimed there was no way to know how the justices he appointed to the court would rule on abortion rights. This time, all plausible deniability is gone. The Supreme Court can play all the games they want, but they can't dance away from reality. Abortion bans are devastating for women's health care across the country. If Trump gets elected, it will get even worse. It's as simple as that.
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