The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” EMTALA, meanwhile, requires virtually all hospitals to provide stabilizing treatment for any condition that “could reasonably be expected” to put the patient’s health “in serious jeopardy,” as well as any condition that could seriously impair bodily functions or organs. No, Turner responded, adding: “That understanding is a humble one with respect to the federalism rule of states.” To which Kagan in turn responded: “It may be too humble for women’s health.” Jackson questioned Turner’s insistence that EMTALA does not require anything that Idaho prohibits, rebuking his strange declaration that the state’s trigger ban simply defers to the “medical judgment” of state legislatures rather than doctors. I mean, Justice Sotomayor is asking you, ‘Would this be covered or not,’ and it was my understanding that the legislature’s witnesses said that these would be covered.” Turner told her, in short, not quite—the witnesses said that, in “exercising their medical judgment, they could in good faith determine that lifesaving care was necessary.” Barrett sounded irritated. “If they reached the conclusion that the legislature’s doctors did, would they be prosecuted under Idaho law?” Turner said no, but Barrett wasn’t convinced.