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. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). 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.

The Biden administration argues there’s a conflict between Idaho law and EMTALA: Where Idaho allows termination only when the patient is at the brink of death, EMTALA mandates intervention earlier, to stabilize the patient before she is literally dying, including situations in which she is facing organ damage, infertility, or other serious harms. So the administration sued the state, and a federal judge issued an injunction compelling Idaho to allow emergency abortions to preserve a patient’s “health.” Now SCOTUS must decide whether the federal statute limits the ability of states like Idaho to criminalize abortions that are health-sparing but not necessarily lifesaving. And that means slipping into their white coats and stethoscopes and explaining to America’s emergency physicians how to do their jobs without risking two to five years in prison and a loss of licensure for making poor guesses about what stabilizing care involves.

Turner, representing Idaho on Wednesday, made a hodgepodge of his state’s arguments that are frankly difficult to harmonize. He seemed to make three central claims: First, that EMTALA does not mandate any particular standard of care (despite prescribing one pretty clearly); second, that even if it did, Idaho’s law would comport with that standard (even though it criminalizes abortion as stabilizing treatment); and third, that abortion is never a standard of care under Idaho law. Except for when it is, which is when it’s necessary to save a patient’s life. Which is a narrower standard than what EMTALA mandates. Which is irrelevant, because, according to Turner, EMTALA doesn’t mandate anything at all. But also, that there is a difference between the care demanded by EMTALA and Idaho, but also that there is no difference, but also that physicians shouldn’t sweat this because beneficent prosecutors probably won’t jail them on the basis of a close call. 

Confused? So were the justices. Progressive Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor all took turns trying to draw out a single scrap of consistent logic from Turner’s rhetorical detritus. Kagan pressed him to admit that EMTALA sets forth an “objective standard” of care—the stabilization of a patient—that sometimes includes abortion. He refused. She sounded aghast. Does the statute, she asked, at least require states to permit abortions for ectopic pregnancies, which will cause death if not terminated? 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. And Sotomayor pummeled Turner with real stories, all ripped from the headlines, of women denied abortions and then forced to bleed out in agony, then asked him whether these women would be allowed to terminate under Idaho law. When Turner refused to give a yes-or-no answer, Barrett finally stepped in. “I’m kind of shocked, actually,” she told Turner, “because I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not?” Turner responded that he wasn’t, to which Barrett retorted: “Well, you’re hedging. 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. “But some doctors might reach a contrary conclusion, I think is what Justice Sotomayor is asking you,” she told him. “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. “What if the prosecutor thought differently?” she went on. “What if the prosecutor thought, well, I don’t think any good-faith doctor could draw that conclusion, I’m going to put on my expert?” Remarkably, Turner told her that’s “the nature of prosecutorial discretion”—meaning prosecutors might well bring charges anyway. At that point, doctors would have to defend their decision in court while facing a two-to-five- year prison sentence. (And ER doctors also face lawsuits if they defer lifesaving care.) So in Idaho you can pretty much just decide how to end your career, while spinning the wheel until someone sues you. No wonder physicians are bolting from the state.

Barrett was, to put it mildly, not satisfied. Later, when Turner tried to blame the Department of Justice for launching this case, she again put him in his place. “Well, hold on a second,” she said. “You’re here because there’s an injunction precluding you from enforcing your law. And if your law can fully operate because EMTALA doesn’t curb Idaho’s authority to enforce its law …” But she couldn’t finish her thought, because Turner interrupted her. It was one of many interruptions she would face from the Idaho attorney. And as the morning went on, she was less and less indulgent of his let-me-explain-this-like-you’re-a-toddler style of argument. When Turner accused the solicitor general of taking an overly aggressive litigation posture, Barrett declined to engage, instead sharply informing him: “OK, well, I would like to hear the solicitor general’s response to that,” and moving on. When she called out one of his silliest claims—that the Justice Department demanded emergency abortions to treat a “mental health condition”—Barrett sounded fed up. Turner hemmed and hawed, butchering the statute so badly that she had to step in to remind him of what it actually said.

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care.

It’s not clear where this case will land: Chief Justice John Roberts and Justice Brett Kavanaugh asked a handful of breezy questions but didn’t tip their hands. It’s odd, though, that Wednesday’s arguments didn’t fully break through the news cycle (as tomorrow’s in the Donald Trump immunity case surely will). As Turner conceded, none of this madness will stop at Idaho; at least five other states, including Texas, have nearly identical bans. But for anyone who listened to these arguments, the symmetry was striking: Turner could spew whatever nonsense he wanted, ignoring serious questions from female interlocutors or evading them because they were invisible to him—just as the pregnant women who will get sicker and lose blood and be turned away at hospitals are invisible to the state he represents.