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.
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