Supreme Court Justice Amy Coney Barrett was "shocked" by a comment from the lawyer representing Idaho during a major hearing on the state's abortion law.
The Supreme Court heard oral arguments in Moyle v. United States on Thursday. The case focuses on Idaho's abortion ban, which says that anyone who performs an abortion is subject to criminal penalties. There is an exception for abortions when it is necessary to protect the life of a pregnant woman, but the Biden administration sued, arguing that federal law requires hospitals to provide appropriate emergency room care, which could include abortions.
During Idaho's rebuttal, attorney Joshua Turner told Justice Sonia Sotomayor that those decisions would be "very case-by-case" when asked if a patient who was at risk of losing her reproductive organs would be enough to trigger the hospital's duty to perform an abortion. His comments prompted Barrett to interject.
"I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered but you're now saying they're not?" the conservative justice asked Turner.
When Turner tried to say that's not what he was saying, Barrett countered, "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," Barrett told him.
In response, Turner said, "Yeah, and those doctors said if they were exercising their medical judgment, they could in good faith determine that life-saving care was necessary. And that's my point—" before Barrett interrupted again to ask, "But some doctor's couldn't."
Asked by Barrett if doctors who did come to the conclusion that an abortion was necessary could be prosecuted under Idaho law, Turner replied, "That, your honor, is the nature of prosecutorial discretion."
Barrett emerged as one of two key votes deciding the case on Thursday. Barrett and Chief Justice John Roberts both posed tough questions to Turner and General Solicitor Elizabeth Prelogar, while their conservative colleagues showed sympathy for Idaho and suggested that they saw the case as federal overreach into what should be state power.
Because the court has a 6-3 conservative majority, the Biden administration needs at least two conservative justices to join the court's three liberals and side with the federal government. Sotomayor, as well as Justices Elena Kagan and Ketanji Brown Jackson, were in agreement with Prelogar's arguments that doctors and women in Idaho were "facing an impossible position" because of the state's abortion ban.
The Idaho law was enacted in 2020 but could only go into effect if the Supreme Court overturned Roe v. Wade, which it did in a bombshell decision in 2022. Moyle v. United States is one of several abortion clashes that have gone before the High Court since the fall of Roe.
Last month, the Supreme Court heard a Texas case that challenges the Food and Drug Administration's approval of mifepristone, a pill used in more than 60 percent of U.S. abortions. Some of the most notable questioning came from conservative Justice Neil Gorsuch, who questioned why nationwide relief would be needed and, at one point, defended the concerns of one of his liberal colleagues.
Abortion has emerged as a key 2024 campaign issue. Earlier this month, Arizona's state Supreme Court upheld a near-total abortion ban—a development that earned a rebuke from some of the nation's most conservative figures. President Joe Biden has blamed presumptive Republican presidential nominee Donald Trump for the new restrictions taking place across the country, while Trump has moved closer to the middle on the issue.
A day before the Arizona decision came down, Trump had said in a video shared on his social media accounts, "My view is now that we have abortion where everyone wanted it from a legal standpoint, the states will determine by vote or legislation, or perhaps both. And whatever they decide must be the law of the land. In this case, the law of the state."
"I am strongly in favor of exceptions for rape, incest, and life of the mother. You must follow your heart on this issue," the former president said. "But remember, you must also win elections to restore our culture and in fact, to save our country, which is currently and very sadly, a nation in decline.
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Katherine Fung is a Newsweek reporter based in New York City. Her focus is reporting on U.S. and world politics. ... Read more
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