Women protest for reproductive rights, New York City © Karen Rubin/news-photos-features.com
By Karen Rubin, News-Photos-Features.com, editor@news-photos-features.com
Anyone listening to the back-to-back Supreme Court sessions – first on Idaho’s rejection of the federal requirement to provide emergency health care for pregnant women (EMTALA) and next innoculating Trump against accountability for mounting a deadly insurrection, attempting a coup, committing fraud to overturn the election, and violating the peaceful transfer of power-was sickened, incensed and scared.
The Christo Fascist Supreme Court majority seems to be poised to rule that women do not have the right to emergency medical care to save their health, their future fertility, the trauma. pain and suffering of being at death’s door while also facing the likely loss of their baby, too.
At the same time, they seem likely to rule that Trump, in a second term, can have his political rival assassinated, sell nuclear secrets to Putin, extort paying vital military aid to Ukraine until President Zelensky announces an investigation into his political rival, Biden (wait, that happened); take $1 million to appoint someone an Ambassador; take kickbacks on foreign aid he authorizes; mount a deadly insurrection, commit election fraud, all without criminal liability as long as he claims retroactively these are “official acts.”
Listening to the back-to-back oral arguments was shocking – a study in strategic, willful obliviousness to the real consequences - the inconvenient truth - of overturning a woman’s right to reproductive health care, the real consequences of ignoring the deadly January 6 insurrection and the conspiracy that led up to it, ignoring the growing use, even normalization, of intimidation and violence as a political weapon.
Justice Brett Kavanaugh said that a sitting president cannot be prosecuted for breaking ANY law that doesn't specifically mention "the president" (how upside down is that?). Justices Amy Coney Barrett and John Roberts tried to qualify Trump's actions as "official" behavior, ignoring the criminality, or even the plain violation of the oath of office (“to faithfully execute the laws and defend the Constitution”). Justice Clarence Thomas refused to recuse despite the fact that his wife participated in the January 6 insurrection. Justice Neil Gorsuch said presidents would wind up routinely pardoning themselves every four years (versus not committing a crime for which they could be prosecuted, instead of pardoned).
But Justice Samuel Alito takes the prize asserting that presidents must be immune from prosecution or else it would "destabilize our democracy" because they would be so fearful of being prosecuted after leaving office, they would take desperate measures to stay (which is exactly what Trump did but never happened in history before Trump). He virtually parrots the Trump line, that without criminal immunity, a president would somehow be “chilled” from committing “bold” actions.
Just the opposite, Justice Jackson asserted, “[The realization that a president might be criminally prosecuted is] what has kept this office from tuning the Oval Office into Crime Central. But once we say ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of a president feeling constrained to follow the law while he’s in office.”
“I respectfully disagree,” Trump lawyer D. John Sauer smugly replied. Even ordering the assassination of a rival, Sauer said, “could well be an official act.”
"I'm not focused on the here and now of this case," Kavanaugh said. "I'm very concerned about the future."
So desperate to give Trump a lifeline back into the presidency, the “Justices” ignored the facts of the case in front of them, and the right of the American people to see justice done, establish safeguards for free and fair elections, and know if a candidate for president is an insurrectionist, in fact ineligible under the 14th amendment. Or even the fact that even malicious prosecution by a political rival would be thwarted by the judicial system which is ostensibly set up to render objective decision.
Michael R. Dreeben, Counselor to the Special Counsel, countered, “Executive immunity would license a president to commit ‘bribery, treason sedition, murder’ and as in Trump’s case ‘conspiring to use fraud to overturn the results of an election and perpetuate himself in power’.
“The Founders knew too well the dangers of king who could do no wrong – devised mechanisms to curb power, especially for private gain. Accountability for petitioner’s misuse of official power to subvert democracy is a compelling public concern.”
(And the Election Interference juries in DC and Georgia could be given instruction to distinguish between “official” and “private” acts.)
Thomas, who loves to justify egregious decisions based on twisted cherry-picking of “history and tradition.” wanted historic examples of criminally prosecuting an ex-president. Dreeban replied, "The reason there were no prior prosecutions is because there were no crimes" warranting criminal prosecution.
As Jamelle Boule writes in his New York Times column, 10 of 45 prior presidents lost reelection. “In every case but one, the defeated incumbents left office without incident. There was no fear that they would try to overturn the results or subvert the process, nor was there any fear that their successors would turn the power of the state against them.” (Opinion | Justice Alito Is Holding Trump to a Different Standard)
“The way we shield our liberties from the threat of a tyrant is to make men obey the law, not place them above it. We chain the power of those who hold office; we don’t unleash it for them to use at their discretion. We don’t extend every privilege and immunity we can imagine; we deny them and demand responsibility,” writes Boule.
In the case pitting the federal EMTALA law, in place since 1986, against Idaho’s extreme abortion ban, the radical justices concocted hypotheticals, theoreticals and gobblygook that would give them an excuse to nullify the preemption of federal law that has applied for decades over the recently enacted state’s abortion ban.
Solicitor General Elizabeth B. Prelogar, arguing on behalf of the federal government, set out her case:
“EMTALA's promise is simple but profound. No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care. This case is about how that guarantee applies to pregnant women in medical crisis. In some tragic cases, women suffer emergency complications that make continuing their pregnancy a grave threat to their lives or their health.
“A woman whose amniotic sac has ruptured prematurely, for example, needs immediate treatment to avoid a serious risk of infection that could cascade into sepsis and the risk of hysterectomy. A woman with severe preeclampsia can face a high risk of kidney failure that could require life-long dialysis.
“In cases like these, where there is no other way to stabilize the woman's medical condition and prevent her from deteriorating, EMTALA's plain text requires that she be offered pregnancy termination as the necessary treatment. And that's how this law has been understood and applied for decades. That usually poses no conflict with state law. Even states that have sharply restricted access to abortion after Dobbs generally allow exceptions to safeguard the mother's health. But Idaho makes termination a felony punishable by years of imprisonment unless it's necessary to prevent the woman's death.”
Justice Sonia Sotomayor cited visceral (not hypothetical) examples of women suffering sepsis and hemorrhaging due to pregnancy complications, but not quite yet threatening their lives, and a patient who was denied an abortion earlier in her pregnancy and by the time she was able to deliver, the baby died and she was forced to get a hysterectomy.
Asked whether Idaho’s ban applied to those situations, Josh Turner, Idaho’s Constitutional Litigation & Policy Chief, cavalierly replied it was a case-by-case assessment and up to prosecutorial discretion whether to prosecute the doctor who thought he had used his best medical judgment.
But that is the problem, he was reminded – doctors are too afraid of being prosecuted, losing their license, their liberty, locked in expensive litigation, to give their patient the care they should have.
“The situation on the ground in Idaho is showing devastating consequences – women and doctors in Idaho are in impossible situation: doctors facing grave threat to her health but not yet death, have to delay care and let her deteriorate or she has to leave state,” stated Solicitor General Elizabeth B. Prelogar, arguing on behalf of the federal government
Even Justice Amy Coney Barrett, a religiously anti-abortion activist, showed sensitivity if not sympathy to the plight of a woman frantically coming to an Emergency Room with some pregnancy horror.
But her Christo Fascist male cohorts completely ignored the woman’s health emergency. What most concerned them was spending: could the federal government withhold its funding unless the recipient complies with its “conditions”. (Answer: yes.) And states rights: can the federal standard preempt the state abortion ban? (Answer: yes.)
“I don’t understand how the argument of preemption squares with theory of spending clause power,” a befuddled Justice Roberts told the SG. “Explain the theory of the spending clause.”
And what of the unborn child? wondered Alito, who wrote the Dobbs decision overturning Roe v. Wade’s, ending women a constitutional right to seek an abortion up until fetal viability. Doesn’t the doctor have an obligation to protect “the interests of the unborn child”, he asked, laying the groundwork for his ultimate goal, fetal personhood.
Prelogar countered that Alito’s reading of the statute was “erroneous” and the hospital only has a duty to stabilize the pregnant woman, since the likelihood is that the fetus has no possibility of surviving.
“What Idaho is doing is waiting for women to deteriorate and suffer the lifelong health consequences with no possible upside for the fetus,” Prelogar said. “It just stacks tragedy upon tragedy.”
Though the Supreme Court, now experiencing record low approval and record high disdain, justices, like Trump, have shown they are impervious to shame, could care less about the damage to foundational democratic institutions or to real people’s lives, for that matter. They can act with impunity because no one can or will stop them.
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