‘You’re hedging’: Amy Coney Barrett harshly grills Idaho lawyer over abortion ban

Reproductive rights activists outside of the Supreme Court at justices debate a near-total ban on abortion in Idaho (AFP via Getty Images)
Reproductive rights activists outside of the Supreme Court at justices debate a near-total ban on abortion in Idaho (AFP via Getty Images)

Reproductive rights are back on the agenda at the Supreme Court this week as justices debate the future of a near-total abortion ban in the state of Idaho.

A ban that took effect in 2022 across the state prohibits abortions except in cases where the procedure is deemed necessary by a doctor to save the life of a patient.

Litigators seeking to throw out the Idaho ban argue that it conflicts with a federal law known by the acronym EMTALA which requires hospitals to provide emergency care if a patient’s condition requires stabilisation.

Oral arguments took place on Wednesday with several women on the Court’s bench taking the lead in questioning Idaho’s state attorney about the real-life implications of the ban.

Justice Amy Coney Barrett, a conservative appointed to the bench under Donald Trump’s presidency, remarked at one point that she was “kind of shocked” to hear attorneys for the state affirm that they determine whether patients are eligible for abortion care on a “case-by-case” basis. She questioned whether individual doctors would be swayed by their personal views if there is no overall framework.

“You’re hedging,” Justice Coney Barrett told Idaho’s litigator Josh Turner. “Justice Sotomayor is asking whether or not this would be covered [by the medical emergency exception], and it’s my understanding the legislature’s witness said this would be covered.”

“Those doctors said...they could in good faith determine that life-saving care was necessary,” Mr Turner responded.

“But some doctors couldn’t,” Justice Coney Barrett then shot back. “Some doctors would reach a contrary conclusion.”

Justice Coney Barrett was appointed by Donald Trump during his presidency, and is known for making legal decisions that suggest she is anti-abortion. She was instrumental in overturning Roe v Wade. Onlookers have expressed surprise at her harsh grilling of the Idaho litigator.

Justice Elena Kagan of the Court’s smaller liberal wing listed a number of dangerous medical conditions patients could experience during pregnancy and questioned whether each would qualify under Idaho’s law. Sonia Sotomayor, another liberal justice, said at one point that determining whether or not a condition was definitively life-threatening was “a lot” to force doctors to consider when treating a patient.

As the debate continued inside the courtroom, it raged outside with a louder tenor. Opponents and supporters of abortion rights met and traded slogans outside, with supporters of reproductive rights dressed in pink or purple T-shirts and hats.

“For the second time in as many months, the Supreme Court will hear a case with extraordinary impacts on our ability to get the essential, and in some cases life-saving, healthcare we need. Anti-abortion politicians have brought this case to the nation’s highest court to challenge long-standing federal protections for emergency care abortion care,” said Alexa Kolbi-Molinas of the ACLU’s Reproductive Freedom Project.

“If these extreme politicians succeed, doctors will be forced to withhold critical care from their patients, and pregnant people will suffer severe, life-altering health consequences, and even death,” added Kolbi-Molinas.

Planned Parenthood Action Fund, the political arm of the nation’s largest abortion provider, concurred with that argument and added that the Idaho law ”threatens the rights of pregnant people to get the emergency medical care they need — including abortion care”. Following the re-emergence of abortion bans around the country in the wake of the 2022 Dobbs decision ending federal protections for abortion, cases of women facing severe health consequences after being turned away by doctors who fear violating state laws have become political ammunition for Democrats.

Some of the supporters of the Idaho ban gathered outside the court on Wednesday contested the idea that the bans were at fault for those women being turned away.

“I think that's pretty silly, and they're probably abusing their ability as a doctor to say that they need to have more abortion freedom, so that they can perform abortions, which is not true,” Savanna Deretich of Students for Life Action said toThe Independent.

“If they can't even recognise how to treat a miscarriage or fallopian tube pregnancy then there’s some serious issues and they need to go back to medical school,” she added.

However, the treatment of a miscarriage, an ectopic pregnancy and other serious complications often does require use of abortifacient drugs.

Protesters outside the Supreme Court as justices hear oral arguments over an Idaho law banning abortions in nearly all cases (AFP via Getty Images)
Protesters outside the Supreme Court as justices hear oral arguments over an Idaho law banning abortions in nearly all cases (AFP via Getty Images)

President Joe Biden visited Florida on Tuesday to rally alongside Democrats in the state on this very issue. The Sunshine State is set to be a top battleground for reproductive rights in 2024, following the passage of a six-week abortion ban by Republicans. Later this year, a ballot measure will be put before Florida voters this year to determine whether abortion rights will be written into the state constitution.

Mr Biden and his party are making a clear effort to tie Republicans to abortion bans in the minds of voters as the incumbent president seeks re-election this fall and faces voter concerns about the economy.

“It was Donald Trump who ripped away the rights ... of women in America,” the president said on Tuesday.

This November, he went on to predict that voters would “teach Donald Trump and extreme MAGA Republicans a valuable lesson: Don't mess with the women of America”.

On Wednesday, his allies tied that message to the demonstrations and speeched taking place outside of the court.

“Every single Republican-controlled legislature has passed or implemented an abortion ban since Roe fell. Make no mistake – Republican legislators will own the deadly consequences of this court decision,” said Sam Paisley, press secretary for the Democratic Legislative Campaign Committee.

“Electing Democrats to state legislatures has never been more important to combat the full-out assault on life-saving reproductive care.”