As it turns out most Americans don’t care all thatm uch about abortion rights after all. And that means they don’t care all that much aboutwhether some women lose their health or their lives for lack of ability to obtain one. I wish I could say that shocks me, but it doesn’t. When the price of eggs is higher than it was four years ago nothing else really matters.
Here’s how it’s going in the courts:
The case now before the 9th Circuit Court of Appeals, centers on whether federal emergency room mandates — enshrined in EMTALA, the Emergency Medical Treatment and Labor Act — preempt state abortion bans when they conflict. EMTALA requires that emergency rooms stabilize patients in crisis. Idaho maintains that they don’t overlap, that the ban’s exception for preventing the woman’s death covers all emergencies. The Biden administration and the hospital system counter that pregnant women can experience a range of medical emergencies that put them on the path to permanent injury or illness, if not death.
Look at the way one of the judges frames his question:
“Your argument is: If the mother wants to kill the baby even though it’s not necessary to prevent [her death] — then they have to be airlifted,” Judge Lawrence VanDyke, a Trump appointee and former solicitor general of Nevada and Montana, asked the lawyer for an Idaho hospital system after she explained that patients had been airlifted out of the state because they might need what Idaho classifies as a criminal abortion.
Gee, I wonder what his position is?
Where’s this going? Well, the Supremes teed it up beautifully for Sam Alito:
VanDyke and the other Trump appointees painted the case as federal government overreach by the Biden administration, which is seeking to enforce the commonly held interpretation of EMTALA. “How is this not regulation of the practice of medicine?” Judge Daniel Bress asked. VanDyke mused about whether “ethics” have a place in medicine, and why it shouldn’t be left to the states to decide what they are.
Judge Consuelo Callahan, a George W. Bush appointee, cut through the attempts to accurately depict an anti-abortion regime to ask: “Is this an exercise in futility?”
She pointed out that a new administration is coming in, and asked whether the judges should just send the case back down to the district court.
The Supreme Court’s delay — incurred by preemptively taking the case from the 9th Circuit, getting fully briefed and hearing arguments, then deciding that it intervened too early and sending it right back — has made it near-certain that the case will still be percolating when Joe Biden’s Department of Justice becomes Donald Trump’s. It’s very unlikely that Trump’s DOJ will share the Biden one’s interest in preserving abortion rights in emergency rooms, likely ending the case at least in its current posture.
Don’t kid yourself. If the Court felt slightly singed by the criticism around the reversal of Roe, you can bet that this last election soothed them. If they had worried at all about the poular backlash it proved to be a paper tiger in terms of partisan politics and that’s uppermost in their minds these days. They’re likely to open the door to criminalizing this, in fact any kind of travel for the pupose of obtaining an abortion. Why wouldn’t they?