Opinion | The Supreme Court Puts the Pro-Life Movement to the Test

Rarely has a Supreme Court case had less legal meaning and greater moral weight than the decision Thursday morning in Moyle v. United States.

The case was of such little legal consequence that you might have already forgotten about it; you’ve lost it in the haze of a shocking presidential debate and a host of far more consequential Supreme Court decisions. But Moyle illuminates a deep conflict within the anti-abortion movement, and the way the pro-life movement resolves that conflict will affect American life and politics for decades to come.

The court dismissed the case as “improvidently granted.” In plain English, it means that it never should have taken the case in the first place. Even though Justices Elena Kagan,
Amy Coney Barrett and Samuel Alito wrote their own opinions, those opinions do not bind the lower courts the way a true Supreme Court majority opinion binds every federal court.

But they’re important nonetheless.

The question at issue in Moyle was simple: “Whether the Emergency Medical Treatment and Labor Act (EMTALA) pre-empts a provision of Idaho law that prohibits abortions except when necessary to save the life of the mother.” The act is a Reagan-era law that requires hospitals that participate in Medicare to provide stabilizing treatment for people with emergency medical conditions, regardless of their ability to pay.

The conflict with Idaho’s law is obvious. What if a pregnant woman suffers from an emergency medical condition that requires an abortion to stave off serious injury but the condition isn’t life-threatening? After all, people go to emergency rooms for serious but non-life-threatening conditions all the time. If a pregnant woman goes to an emergency room and she faces serious physical peril — but not an imminent mortal threat — should she be treated fundamentally differently because she is carrying a child?

My own answer is yes and no. Yes, of course a doctor should consider the safety of the unborn child when considering a course of treatment. Many pregnant women facing medical emergencies are desperate to protect their child. But the answer becomes no the instant that the choice becomes binary — where the best course of treatment to protect the mother from serious physical harm requires an abortion. In that awful circumstance, if a woman chooses to endure great harm to protect her child, then that is her choice. But the state must not require it.

The cruelty of requiring a sacrifice like that is evident when you take a larger look at American law. In Tennessee, for example, a person is entitled to use deadly force against another when “the danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time.”

Under Tennessee’s stand-your-ground law, a person is entitled to presume that there is a threat of imminent death or bodily harm when someone “unlawfully and forcibly enters” another person’s “residence, business, dwelling or vehicle.”

I’m referring to this law because, if you believe, as I do, that an unborn child is a separate human life, then the longstanding legal rules that govern when we can lawfully take another life are quite relevant to the debate, and a nation that tells a citizen that he can open fire the instant he reasonably believes he is in serious danger but tells a pregnant woman that she has to be objectively on the verge of death before she can abort her child is a nation that treats pregnant women as second-class citizens.

And yet, that’s exactly what Idaho did — at least for a while. As Justice Barrett wrote in her opinion concurring with the court’s decision to dismiss the case, the federal government’s witnesses claimed that Idaho’s law “might prohibit abortions as treatment for conditions including severe heart failure, pre-eclampsia, preterm premature rupture of the membranes (PPROM), sepsis, and placental abruption, because a physician could not know, ‘with certainty,’ that an abortion is necessary to save the mother’s life in those circumstances.”

That is extraordinary, but it is completely consistent with the philosophy of the so-called abortion abolitionist movement. Many abortion abolitionists refuse to acknowledge any exceptions permitting an abortion. In 2021, for example, the Southern Baptist Convention passed an abolitionist resolution that declared that Baptists “state unequivocally that abortion is murder, and we reject any position that allows for any exceptions to the legal protection of our preborn neighbors.”

This language goes far beyond even declaring that unborn children possess equal status with their mothers. It puts them in a superior position. Outside of the abortion context, we do not grant any person a right to inflict serious bodily harm (even unintentionally) on an innocent person. The abortion abolitionist ethos fundamentally contradicts the principle of “love them both” — both mother and child, that is — that has undergirded the best of the anti-abortion movement.

When I first heard my oldest child’s heartbeat, when my wife was mere weeks into her pregnancy, all the love I have for my daughter did not eclipse all the love I have for my wife, and if my wife faced serious bodily harm during the pregnancy, the last thing the state should have done was force her into mortal peril. She could still have chosen (as so very many women do) to carry the child as long as she could, but for the state to treat the mother’s physical health as secondary to the child’s is to create a profound legal and moral problem.

So it was no surprise when the district court blocked enforcement of Idaho’s law. A woman’s pregnancy should not mean that she can’t be effectively treated for medical emergencies that would lead to dramatic interventions for anyone else.

After the court acted, the law changed. The Idaho Supreme Court narrowed its scope, holding that the law “does not require objective certainty, or a particular level of immediacy, before the abortion can be ‘necessary’ to save the woman’s life.” Then the Idaho Legislature amended the law, as Justice Barrett explained, “to exclude ‘the removal of a dead unborn child’ and ‘the removal of an ectopic or molar pregnancy’” from the definition of “abortion.”

The changes didn’t stop there. The federal government had identified PPROM, placental abruption, pre-eclampsia and eclampsia as conditions that could require hospitals to permit an emergency abortion under EMTALA. But then Idaho told the Supreme Court “that the Act permits physicians to treat each of these conditions with emergency abortions, even if the threat to the woman’s life is not imminent.”

You can begin to see why the Supreme Court dismissed the case. The state of Idaho was in a state of confusion, and the court wasn’t even certain of the legal rules it was tasked to review. At the same time, the federal government clarified its stance, telling the court that EMTALA should not be read as requiring doctors who have conscientious objections to perform abortions. The federal government also “emphatically disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions.”

So the case will now go back to the district court, and the district court’s original order allowing medical providers subject to EMTALA to provide emergency abortions stands. At least for now. The case will continue, and the Supreme Court may very well hear it again, but next time with a much clearer factual record.

Yet the moral resonance of the case goes far beyond the legal analysis. Idaho tried a version of abolitionism, and the consequences were dire. As Justice Kagan wrote in her own concurrence, “To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year.”

The pro-life movement cannot be exclusively anti-abortion. It is not moral or legal equality to elevate the unborn child over the life and physical health of the mother.

Many of the most strident abortion abolitionists I know would open fire on another human being in an instant if they believed they were under serious threat. That same person would then tell a pregnant woman who is screaming in agony in the midst of a gravely serious medical emergency that she must suffer profound harm or she and the person who treats her could face murder charges.

I’m pro-life. I believe the law should protect the lives and health of both unborn children and their mothers. I believe Roe was wrongly decided, but when Roe was overturned, my joy was tempered with real sadness. During my career as a pro-life lawyer, as I wrote two years ago, I was guided by two convictions — “that Roe represented a grave moral and constitutional wrong” and that I belonged to a larger pro-life movement that “loved its fellow citizens, believed in a holistic ethic of life, and was ready, willing and able to rise to the challenge of creating a truly pro-life culture.”

As I watch that same pro-life movement flirt with punitive abolitionism even as many of its members wrap both arms around a cruel, corrupt man who has been found legally responsible for sexual abuse, there is no mystery at all as to why the abortion rights movement enjoys such profound cultural and political momentum. It is no secret why pro-life referendums are losing time and again, even in bright red states like Kentucky and Kansas.

As my friend Russell Moore, editor in chief of Christianity Today, said in a podcast last week, the pro-life movement’s own conduct is helping create a “resilient pro-choice majority.” As the Idaho case progresses, the anti-abortion movement will have to make a choice: Will it love mothers as much as it loves children, or will it violate the fundamental moral principle that undergirds this American republic — that all people are created equal?