Kavanaugh interested in q of whether ID's law permits abortion in all the cases the U.S. flags--and somewhat interested in what is happening on the ground versus what Idaho claims should be the case.

Prelogar pushing back on the idea that Alito's reading of 'unborn child' by suggesting that it would allow states to treat pregnant patients as non-persons.

Gorsuch seemed personhood curious too. Interesting to see if anyone else picks up on this.

Alito is picking up on ADF/Idaho's claim that Congress could not have intended to permit emergency access to abortion bc the statute viewed the 'unborn child' as a patient deserving stabilizing treatment too.

Alito here mentioning the 'unborn child' language and forgetting Gorsuch asked a related question earlier

Now we have at least three conservative justices, with Gorsuch, raising this spending power concern.

Alito and Thomas--and maybe Justice Kavanaugh--seem very concerned about this mental health claim.

Great example of how/why people in the pro-life movement have been skeptical of health exceptions since 1973. Seeing health--and mental health--as an opening to elective abortion.

This spending power question is something both Alito and Thomas have invested in.

One fascinating dimension of this is how much the attorneys have focused on the reality in Idaho right now: this feels very much also like a fight abt whether post-Dobbs bans are reasonable and operating smoothly or have put doctors & patients in an impossible situation

He's going to great lengths to make it sound as if there is no conflict w/ ID's life exception. That seems hard to credit. ID chose an exception narrower than the ones on the books in places like TX,& it wasn't an accident

One of THE major arguments abortion opponents make against broadening important exceptions: mental health justifications are an invitation to fraud/elective abortion. A revealing q and answer.

Barrett has had some real skepticism of Idaho's points...

Kavanaugh seems to be suggesting that there is not much of a conflict here bc Idaho's life exception would cover many of the conditions spotlighted by the government. Not likely in practice to work that way

Now we have our first q about EMTALA's reference to 'the unborn child.'

This is going somewhat worse for Idaho than I would have expected, but the relative silence of the conservatives is making this hard to read thus far.

Will be interested to see if any if the justices take on this point. Personhood is all over lots of briefs on Idaho's side, but none of the justices responded directly to this point.

Interesting we have heard so little from the conservative justices so far.

I will be on CNN and also here sharing thoughts in the 10 am EST/7 am(!) PST hour during argument.

Honored to be part of this amazing The Yale Law Journal collection with Melissa Murray (@ProfMMurray on Threads 🧵), Cary Franklin, Reva Siegel, and Aaron Tang.