During Wednesday’s Supreme Court arguments over life-saving abortions in emergency rooms, a few things became clear: The male justices are unconcerned by women’s suffering, and Justice Samuel Alito thinks there aren’t enough abortion restrictions across the U.S.—but if you press him on that point, you’re the ridiculous one.
The case, United States v. Idaho, is about whether emergency rooms in Idaho—a state that bans all abortions except those done to prevent death, not to preserve health—are in violation of a federal law that requires E.R. patients to be stabilized. The Emergency Medical Treatment and Labor Act, or EMTALA, says hospitals that accept Medicare funding have to stabilize patients facing threats to their health, and for pregnant patients facing complications, the treatment is sometimes abortion.
But this is not a normal case: Idaho is represented in part by Alliance Defending Freedom, or ADF, a far-right legal activist group that is pushing for nationwide restrictions, including a national abortion ban. Idaho and ADF argued in case briefs and before the court that a fetus is a separate patient under EMTALA and deserves equal treatment in E.R.s. This is a fetal personhood argument, and if it’s taken to its logical endpoint, it would lead to a ban on all abortions nationwide, the end of IVF as we know it (see: Alabama), and restrictions on certain forms of birth control. In practice, women whose water breaks too early could be forced on bed rest to try to save the fetus, or given C-sections against their will. The latter is already happening, and in fact, happened even before Dobbs.
During arguments, some of the male justices seemed content to talk about whether EMTALA’s funding conditions are an appropriate use of the Constitution’s spending clause, while the women were focusing on the medical harm Idaho’s law has caused to living, breathing women. Late in the argument, Alito—who wrote the majority opinion in Dobbs that allows laws like Idaho’s to be enforced—was upset that not enough time had been devoted to the existence of the words “unborn child” in the law about emergency room care.
Alito expressed concern that “one potentially very important phrase” may not have been mentioned: “EMTALA’s reference to the woman’s ‘unborn child.’” (Actually, Justice Neil Gorsuch asked about it 45 minutes earlier in the session.) Alito asked of the Biden administration’s lawyer, Solicitor General Elizabeth Prelogar, “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” He then inquired, “Doesn’t that tell us something?”
He was not-so-subtly hinting that he thinks there’s a legislative basis for fetal personhood hidden in the law, and said that EMTALA “indisputably protects the interests of the unborn child” if the pregnant woman wants to continue the pregnancy. Prelogar countered that “the duty runs to the individual with the emergency medical condition” and it was wrong to imply that “Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization.” Sensing that Prelogar was onto him, Alito got testy. “Nobody’s suggesting that the woman is not an individual, and she doesn’t … she doesn’t deserve stabilization. Nobody’s suggesting that,” he snapped. Prelogar calmly responded that Idaho is currently treating women in this fashion.
Since the court let Idaho enforce its law in early January, six pregnant women have been airlifted out of state—that’s compared to just one patient in all of 2023. Emergency rooms in other states are also turning away pregnant patients—stories we’ve heard directly from some women who’ve sued, and in devastating news reports like one from the Associated Press published days before arguments. Women have, as one amicus brief noted, been “demot[ed]” to “second-class status under EMTALA.”
Not only did Alito ignore evidence from multiple states showing that bans are limiting women’s access to health care, he also disregarded the stated goal of one of the law firms involved in the case. As ADF CEO Kristen Waggoner recently told Politico, “We do believe at ADF that the Constitution protects the life of an unborn child and that that is in the 14th Amendment.” That would be game over for abortion—along with a lot of other reproductive healthcare.
ADF is not hiding its strategy. Alito, on the other hand, keeps to the stealthy shadows, attempting to advance arguments that promote fetal personhood while simultaneously insisting that this unprecedented expansion of personhood rights won’t come at the expense of women’s lives and autonomy. It’s a deception of the highest order and onlookers might be left to conclude that he either thinks we’re all too dumb to notice—or that he knows nothing can stop the 6-3 court from doing what it wants. (The latter attitude was quite evident in Thursday’s arguments over whether former President Donald Trump can claim immunity for allegedly orchestrating the January 6 insurrection.)
Alito seems to have a habit of trying to slip one over the American public. In the other abortion case this term, concerning the fate of the abortion drug mifepristone, he referred to the Comstock Act not by name, but by statute number, 18 U.S.C. 1461. Comstock is a dormant, Victoria-era law that the power-hungry folks behind Project 2025, the proposed agenda for a second Trump term, expect the former president to revive and enforce in order to ban the mailing of abortion pills—if not all clinic supplies—should he win a second term. Prelogar argued that case as well, and she made sure everyone knew what Alito was trying to pull. She responded, “I think that the Comstock provisions don’t fall within FDA’s lane.”
That interaction in March may help explain why Alito sounded so contemptuous Wednesday after the government’s lawyer called out his ulterior motives. Alito doesn’t like having his power challenged, and if you do it, he’ll suggest you’re simply being hysterical. But make no mistake, anti-abortion activists like ADF, the architects of Project 2025, and, yes, Alito, are plotting to erase the personhood of women and pregnant people. They’re telling us loud and clear.
