← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
PREVIEW: Abortion Gaslighting is Back at SCOTUS
00:07:54
Dahlia Lithwick and Mark Joseph Stern take you through the arguments in the emergency abortion care case and a look ahead to Trump’s immunity case.
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Transcript5 lines
- [00:01]
A
Hi, Dalia Lithwick here, and we are releasing an extra episode of Amicus to our Slate plus subscribers. Amicus is Slate's podcast about the Supreme Court, the law, the rule of law, democracy. We're in the middle of a life and death, truly democracy defining week at the U.S. supreme Court. Wednesday morning, the high court heard arguments in the EMTALA case that's the cases consolidated into Moyle vs United States about what level of care pregnant patients can be provided in emergency rooms. On Thursday morning, the high court will be hearing Trump v. United States. That's the case in which the former president will claim a vast sweeping theory of immunity that more or less translates into when you're the president, they let you do it. You can do anything. Slate's senior legal writer Mark Joseph Stern and I are digging into what happened in the EMTALA arguments Wednesday and looking ahead to Thursday's arguments in the immunity case. And we're going to share a taste of that conversation right here. You can listen to it in full by signing up for Slate plus, either@slate.com amicusplus or if you're listening on Apple Podcasts, just click on Try free on our show page. I guess we just have to take a moment here together to contemplate what we just heard at scotus. Because it was women justices, including Amy Coney Barrett, female Solicitor General Elizabeth Prelogger, just laying out in the most graphic, explicit terms what preeclampsia and ectopic pregnancies and potential liver damage and gushing blood and helicopter removal to other states looks like, while the male justices really fretted about what the spending clause and reticulated statutes and equity and the Hyde Amendment, Justice Alito really wants to talk about fetal personhood and also the dictionary. Mark I can't shake the sense that if every woman in America had listened to this particular oral argument as it was going down on Wednesday morning, they might wonder why every single hypothetical doctor cited in this case was a he, while the nurses who are not allowed to perform emergency surgery because they're just nurses or were always she.
- [02:32]
B
What a mystery. Dalia. I wonder why that could be. I'll just add to that that these were some of the most infuriating arguments I've listened to in a long time. For the reasons you just laid out. In part, you had these men who of course have never given birth, seemingly just breezing past all of these complications that we know are a serious risk of pregnancy, to zero in on sub that in some circumstances weren't Even briefed below that Idaho has forfeited that, you know, the spending clause is more important to talk about than premature rupture of the membranes. To Neil Gorsuch, I'll also point out that the discrepancy between how this case was argued and what this case is about struck me over and over again. Joshua Turner, who argued for Idaho's draconian abortion ban, 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 in the most measured sort of breathy tones like, oh, do I really have to explain this again, while discussing situations that are some of the most chaotic and wrenching out there, which is emergency situations at hospitals involving wanted pregnancies with women who are forced now into life or death situations between getting and abortion and potentially dying. That gap that delta really rankled me and I think it's worth keeping in mind as we delve into the legal details of this case. The human stakes are stunning and horrific and to lose sight of them is to lose sight of why this case matters so much.
- [04:21]
A
Right. And I and maybe worth just reminding listeners, we did a preview of this case that like was kind of like eyebrow inflames crazy with Dr. Dara Kass. And you know, one of the things that she said that has really stuck with me is the unbelievable disproportionate number of miscarriages and pregnancy emergencies that she sees every single day in the er. So the notion that this like happens only occasionally or I can't think of a scene single case in which this extraordinary thing you are talking about happens. It happens each and every day. It's part of why EMTALA was passed, right? Pregnant women, particularly pregnant women of color, were being dumped by emergency rooms that didn't want to take care of them. So you're exactly right that the sort of split screen reality of every single one of the women, including Justice Barrett, wanting to talk about that as a serious healthcare issue while you got this sort of chin stroking like let's talk about the spending clause or even worse, as you said, Joshua 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. Oh boy. I thought Dobbs was like gobsmacking in its disconnection from the real lived lives of pregnant people, but this was next level. Mark, do you mind giving us just a quick and dirty on what this case is about.
- [06:04]
B
So this is the first big clash between the Biden administration and red states when it comes to abortion Post Dobbs. So after Dobbs, we immediately saw this problem of hospitals refusing to provide emergency abortions to patients who were suffering all of these conditions that do happen with some frequency, but they still had what is called a fetal heartbeat by some of the courts. They couldn't terminate. They were forced into sepsis, into hemorrhage. And only at that point when they were essentially crashing on the table, would hospitals terminate their pregnancies. Because in states like Idaho and Texas and Mississippi, the laws are so strict that the doctors were terrified of being prosecuted and imprisoned if they acted any earlier.
- [06:50]
A
You can listen to this urgent bonus episode in full right now by signing up@slate.com amicus+ or or if you're listening on Apple Podcasts, by clicking Try Free at the top of our show page. Slate plus members have access to bonus content like My Conversations with Mark Stern and our chief Law of Trump correspondent Jeremy Stahl, and to ad free versions of all of Slate's podcasts, exclusive episodes from other awesome Slate shows like Slow Burn and political gabfest. And Slate plus subscribers never hit a paywall@slate.com go to slate.com amicusplus to become a member. That's slate.com amicus plus or click try Free on the link in Apple Podcasts. And thank you, thank you for supporting the work that we do here at Slate.