Podcast Summary: Amicus With Dahlia Lithwick

Episode: PREVIEW: Abortion Gaslighting is Back at SCOTUS

Date: April 24, 2024
Host: Dahlia Lithwick
Guest: Mark Joseph Stern (Slate’s Senior Legal Writer)

Overview

This urgent bonus episode focuses on the high-stakes legal and human drama unfolding at the U.S. Supreme Court during a crucial week for American democracy. Host Dahlia Lithwick and senior legal writer Mark Joseph Stern dive into the oral arguments in Moyle v. United States (the EMTALA case), which centers on the federal requirement for hospitals to provide emergency care—including abortion—in life-threatening situations. The discussion highlights the gender dynamics in the courtroom and previews upcoming arguments in Trump v. United States on presidential immunity.

Key Discussion Points & Insights

1. EMTALA Case: Life and Death in the Emergency Room

• Central Question: Does the federal EMTALA law require hospitals to perform emergency abortions in states where abortion is otherwise banned?
• Lithwick underscores the real, immediate stakes:

  "We are in the middle of a life and death, truly democracy-defining week at the U.S. Supreme Court." [00:17]

• The justices, especially women, discuss graphic medical realities—preeclampsia, ectopic pregnancy, liver damage, hemorrhaging—while some male justices focus on abstract legal concepts.

2. Courtroom Gender Dynamics and Disconnection

• Lithwick and Stern note a striking division:
  • Women justices and the female Solicitor General address real medical crises.
  • Male justices fixate on statutory nuance, hypotheticals, and "the dictionary" (specifically Justice Alito and discussion of fetal personhood).
• Lithwick points out the gendered assumptions in the arguments:

  “...if every woman in America had listened... they might wonder why every single hypothetical doctor cited in this case was a he, while the nurses... were always she.” [01:00]

• Stern’s reaction:

  "Joshua Turner... presented himself as so calm and mansplainy, teaching mostly, you know, these women justices what they didn’t know and couldn’t wrap their feeble little minds around... while discussing situations that are some of the most chaotic and wrenching out there." [02:50]

• The hosts identify a profound disconnect between legal argument and real medical suffering.

3. The Human Stakes

• Stern emphasizes the "stunning and horrific" consequences for patients:

  "To lose sight of [the human stakes] is to lose sight of why this case matters so much." [04:00]

• Lithwick recalls Dr. Dara Kass’s warnings in a prior episode:

  "It happens each and every day. It’s part of why EMTALA was passed... Pregnant women, particularly pregnant women of color, were being dumped by emergency rooms..." [04:40]

• EMTALA was designed to prevent hospitals from refusing care to pregnant women in crisis.

4. Legal Context: Post-Dobbs Clash

• Stern explains the impact of Dobbs:

  "This is the first big clash between the Biden administration and red states when it comes to abortion post-Dobbs... hospitals refusing to provide emergency abortions... because in states like Idaho... doctors were terrified of being prosecuted and imprisoned..." [06:03]

• Life-saving care is now held hostage to legal risk and criminalization, leading to dire delays in treatment.

Notable Quotes & Memorable Moments

• Lithwick on the surreal gendered dynamic:

  "...the notion that this... happens only occasionally or I can't think of a single case... It happens each and every day." [04:21]

• Stern on courtroom attitude:

  "...these men who of course have never given birth... breezing past all of these complications that we know are a serious risk of pregnancy..." [02:35]

• Lithwick on male lawyers’ patronizing tone:

  "...Turner, who wanted to let us know that we were hysterical and not to worry our little heads about what happens in ERs because the state of Idaho would never do anything to hurt women. We just have to trust him." [05:20]

• Stern on the case’s gravity:

  "...the human stakes are stunning and horrific and to lose sight of them is to lose sight of why this case matters so much." [04:06]

Timestamps for Important Segments

• [00:01] Introduction; setting the stakes for the week at SCOTUS
• [01:00] Gendered framing in oral argument—doctors vs. nurses
• [02:31] Mark Stern’s reaction to the oral argument’s infuriating dynamics
• [04:21] Reference to Dr. Dara Kass and the prevalence of emergencies
• [06:03] Stern summarizes the legal context and real impact post-Dobbs

Tone and Style

The conversation is candid, urgent, and often incredulous at the profound disconnect between courtroom abstractions and real-world suffering. Lithwick and Stern do not hold back on critiquing the patronizing or dismissive tone of the state’s lawyers and some justices, drawing a clear picture of why these arguments matter on a deeply human level.

Summary Flow

This episode is an urgent, lively, and sometimes frustrated exploration of the Supreme Court’s treatment of emergency abortion care. The hosts break down the legal stakes, unmask the gendered assumptions underlying the legal arguments, and center the lived experiences and risks that patients—especially pregnant people of color—face every day in crisis care situations. For listeners, it’s a gripping snapshot of not only the law, but also the life-or-death realities the law now touches.