The Volokh Conspiracy

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The Keys to Moyle: PPROM and Fertility

Justice Kagan and Sotomayor set the stage for Justice Barrett's vote.


Justice Kagan's concurrence in Moyle, joined by Justice Sotomayor, made the same factual claim several times–that Idaho's law would affect the fertility of women. (And no, Kagan did not use Justice Jackson's neologism of "pregnant patient"–a question she still must be wrestling with since her confirmation hearing.) Kagan wrote:

An Idaho law prohibits abortions unless necessary to prevent a pregnant woman's death; the law makes no exception for abortions necessary to prevent grave harms to the woman's health, like the loss of her fertility.

What falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility.

And the record shows that, as a matter of medical reality, such cases exist. For example, when a woman comes to an emergency room with PPROM, the serious risk she faces may not be of death but of damage to her uterus, preventing her from having children in the future.

Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman's death or serious injury, including kidney failure or loss of fertility.

Why would Justice Kagan go out of her way four times to focus on fertility? That is usually not what pro-abortion advocates write about. They usually focus on autonomy and equality. No. This message is directed right at the Supreme Court Justice with the most children–Justice Barrett. Remember, in Dobbs, Justice Barrett was taken by the fact that adoptions have become easier. In an abortion case, the way to Justice Barrett's vote is by focusing on the ability of women to maintain their fertility and have more children. Accordingly, SG Prelogar mentioned fertility twice during argument.

In Idaho, doctors have to shut their eyes to everything except death, whereas, under EMTALA, you're supposed to be thinking about things like, is she about to lose her fertility?

It's looking at the possibility that if the woman doesn't get treatment then and there, what will happen, what will reasonably be expected to occur is that her organs could start shutting down or she might lose her fertility or have other serious health consequences.

I have become convinced that every move Elena Kagan makes is seen to bring Amy Coney Barrett to her side. Kagan, a former law school dean, knows how to talk to an academic. Meanwhile, the Court's conservatives have shown no ability, or even interest, to bringing around Barrett. The drift is visible. Laurence Tribe's description of Kagan more than a decade ago is still apt–she had purchase with Justice Kennedy, and now has purchase with Justice Barrett.

I also found it strange that Justice Kagan used an acronym, PPROM, without defining it. (Maybe this is something that would have been cleared up in a subsequent draft.) PPROM, or preterm premature rupture of the membranes, occurs when a woman's water breaks prior to the onset of labor.

This exact issue came up at oral arguments, and seems to have pushed Justice Barrett off her prior position. The colloquy begins at page 24. Justice Sotomayor asked the Idaho SG about women who were diagnosed with PPROM during the second trimester. Sotomayor inquired if, under the Idaho law, a doctor could perform an abortion in this case. The lawyer would not give a yes-or-no answer, and responded, "It is very case by case." At that point, Justice Barrett entered the fray:

JUSTICE BARRETT: Counsel, I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered.


JUSTICE BARRETT: And you're now saying they're not?

MR. TURNER: No, I'm not saying that. That's just my point, Your Honor, is that –

JUSTICE BARRETT: 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.

In hindsight, that may have been the moment that Idaho lost the case.

I think Justices Sotomayor and Kagan see these dynamics of what makes Justice Barrett tick, and they executed their plan flawlessly. Justice Jackson, as I'll explain in another post, has a different focus.