Ms. Must-Reads: Apr. 29

I thought I knew what to expect in the Supreme Court’s debate over whether states that ban virtually all abortions could deny pregnant women suffering life-threatening medical emergencies the kind of treatment needed to prevent severe bodily injury. But in oral arguments last Wednesday, conservative male Supreme Court justices displayed a callousness for women’s lives that was jarring to witness—even by the standards of our current post-Dobbs landscape.

As Ms. contributor and legal scholar Mary Anne Franks pointed out, they made clear that they had “no interest in hearing about the ruptured membranes, failing kidneys, and uncontrollable hemorrhages of pregnant women and girls denied essential emergency medical care. Justice Alito’s questioning treated these catastrophic injuries to the bodies of pregnant women as if they were mere distractions from the true subject at hand: 'the unborn child,' which he invoked as though the embryo or fetus inside a woman’s body were a free-floating, independent being, invested with all the humanity that the pregnant woman lacks,” said Franks.

“Solicitor General Prelogar’s pointed reminder that EMTALA’s primary focus is on the individual in need of emergency care hit its target so squarely that Justice Alito immediately attempted to backtrack, shouting defensively that ‘[n]o one is suggesting a woman is not an individual and she does not deserve stabilization. Nobody is,’” Franks noted. “Of course, this is exactly what the state of Idaho, and Justice Alito himself, is suggesting. The only question is whether the rest of the Court will agree.”

The case in question—which abortion rights advocates are saying could be the next Dobbs—concerns whether the federal Emergency Medical Treatment and Labor Act, which requires Medicare-funded hospitals to provide medically necessary stabilizing treatment to patients, preempts Idaho’s law banning abortion. Experts noted that the justices’ lines of questioning revealed a lack of definitional clarity when it comes to Idaho’s law, and concerns over the issue of “fetal personhood”—an unscientific concept used by the anti-abortion movement to argue that “human life” begins at fertilization.

Justices Alito and Thomas made it clear that they agreed with Idaho’s attorney, who essentially argued that women experiencing pregnancy complications have no federal right to medical care unless they are dying. Justices Gorsuch and Kavanaugh also appeared to agree. The Court’s bipartisan group of women justices were the only ones asking questions that reflected concern for how women’s health and lives would be affected by the decision. This level of right-wing negligence can have only one outcome: increased suffering and death for the women of America.

As Skye Perryman, a lawyer and president and CEO of Democracy Forward wrote in Ms. in the wake of the arguments: “Indeed, there is a relationship between the health of a democracy and its treatment of women and girls—and it is not hyperbole to note that our democracy is presently on life support. When democracies fall, it is because people do not believe it is possible before it is too late.”

We know very well that it is possible—and escalating attacks on women’s rights and lives are a canary in the coal mine. And as the 2024 elections approach, we know that women will be critical to saving democracy.

Onward,

Kathy Spillar

Executive Editor

This week's Ms. Must-Reads:

• "‘Tragedy Upon Tragedy’: What the Justices’ Questions on EMTALA Revealed" — Aziza Ahmed
• "Idaho’s EMTALA Challenge Has Got Women Dead to Rights" — Mary Anne Franks
• "Will the Supreme Court Dump Women’s Lives and Futures Again?" — Skye Perryman
• "Men and Mass Shootings 25 Years After Columbine" — Rob Okun