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Alito pressed ‘unborn child’ concern in abortion arguments

The justice who authored the Dobbs ruling overturning Roe v. Wade sounded intent on further curtailing abortion at Wednesday’s oral arguments over Idaho’s near-total ban.


The Supreme Court heard its latest post-Dobbs abortion argument Wednesday. The case with national implications stems from Idaho’s near-total ban, which conflicts with a federal law protecting emergency medical care.

The promise of that federal law, U.S. Solicitor General Elizabeth Prelogar told the justices, is the “simple but profound” one that nobody “who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care. This case is about how that guarantee applies to pregnant women in medical crisis.”

But late in Wednesday’s hearing, Justice Samuel Alito, who authored the Dobbs ruling that overturned Roe v. Wade, raised the law’s reference to the “unborn child.” He wondered: “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” He added that it “seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty.”

Prelogar explained that it’s not odd when you look at the reasoning behind the law, called EMTALA. “There were well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren’t treating them,” she said. The solicitor general went on to observe:

If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus itself is an individual with an emergency medical condition. But that’s not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman.

Alito’s remarks raised the prospect of what’s known as “fetal personhood,” a notion that would give rights to fetuses. So the exchange serves to highlight that anti-abortion activists are unsatisfied with overturning the constitutional right to abortion, theoretically leaving it to individual states; rather, they want to affirmatively prohibit it.

But great lawyering may be no match for the simple math of a 6-3 Republican-dominated court.

The solicitor general’s schooling of GOP-appointed justices in this case and others has been refreshing. But great lawyering may be no match for the simple math of a 6-3 Republican-dominated court. The Idaho law took hold in Dobbs’ wake, threatening criminal penalties and upending health care, with women needing to be airlifted to other states.

The justices also recently heard argument in the mifepristone appeal. We should have both rulings by late June. Whatever their outcomes, neither case will be the last word on the wreckage that Dobbs unleashed.

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