Dobbs is forcing reality on the abortion narrative

Exceptional call-a-spade-a-spade reporting by TPM's Kate Riga

On Wednesday, the right-wing justices really preferred the safe world of legal abstraction, where they could pretend that Idaho’s abortion ban — which only has an exception to save the woman’s life — won’t inevitably leave women to gruesome suffering. 

The Court’s conservative wing tried with increasing and atextual persistence to convince listeners that Idaho’s strict ban still allows emergency room doctors to provide abortions to women in varying states of medical distress, and not just when doctors are sure the patient is facing death. They crafted a kind of anti-abortion fantasyland where not only do exceptions work, but that the narrowest ones will amenably stretch to cover all the sympathetic cases. 

They pushed this vision, even while hospital systems in Idaho attest that they are airlifting pregnant women in crisis across state lines, or waiting for them to painfully “deteriorate” before treatment, cowed by the fact that prosecutors could come after them with punishments including mandatory prison time for violating the state ban. 

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“Is there any condition you’re aware of where the solicitor general says EMTALA requires abortion be available in an emergency circumstance where Idaho law, as currently stated, does not?” Justice Brett Kavanaugh lobbed to Idaho’s lawyer Joshua Turner, trying to prompt him to say that Idaho’s ban can coexist with federal mandates.

After trying to prod the struggling Turner to repeat the argument back, Kavanaugh got frustrated.  

“You’re the one who said it in your reply brief, that there’s actually no real daylight here in terms of the conditions, so I’m just picking up on what you all said,” he grumbled, rhetorically throwing up his hands. 

Justice Amy Coney Barrett heroically tried to salvage the effort, asking Turner: “What’s the conflict?” 

“Why are you here?” she pressed.

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“I’m kind of shocked,” Barrett said after Turner struggled under Sotomayor’s gruesome litany. “You’re hedging,” she accused, insisting that his briefs said that the grim emergencies recounted by the liberals would allow patients to get abortions under Idaho’s law. 

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The conservatives’ pique tracks with the grim underbelly of the abortion ban regimes that has been laid entirely bare in the post-Dobbs world. The anti-abortion movement long premised its case on a notion, implicit or explicit, that abortion was the provenance of young, irresponsible, promiscuous women. 

That’s always been a lie, but now it’s a lie that’s obvious to everyone: Abortion restrictions have always hurt everyone who can get pregnant, including women desperate to carry their pregnancies to term — the kind of women anti-abortion activists purport to support. And Wednesday’s case in particular centers on the suffering of those women, women who are fairly far into their pregnancies, whose loss is often a personal tragedy as well as a medical emergency.

“Leave it to the states” is the kind of messaging anti-abortion activists and their judicial helpmates love: It sounds clean, neat, reasonable. But when states enact near-total bans, when the federal government somehow loses its authority to block those bans even when they threaten women with serious illness — as Idaho is pushing for here — the reality for all to see is women bleeding out in emergency rooms, pregnant women loaded onto helicopters, doctors sitting back and watching patients writhe in pain until death is closer.

The dog that caught the car has become the cliche du jour, but the Producers may be more apt. For decades, the Republicans had a perfect arrangement with the anti-abortion segment of the party. They quietly gave them wins on the state level that entailed almost no political costs while dangling big politically costly promises (like fetal personhood) they had no intention of delivering. As long as they had a fairly tight majority on the court with at least one good soldier, they could keep their hand out to the evangelicals without ever having to come through. It's possible that getting that sixth justice will prove to be the costliest mistake either party has made in recent memory.

Not to make light of the tragic consequences of Dobbs, but in strictly political terms, McConnell's machinations may turn out to be the ultimate in political poetic justice, a Machiavellian triumph that turned into a Pyrrhic victory for the entire GOP.