The Bruen problem

And the end of the last term we saw the Supreme Court’s Republicans refuse to apply its own recent holding to a case when the results would look too bad for the Court in a gun control case. Joan Biskupic has an insider account of the Idaho abortion case that shows a similar case of (temporary) cold feet as Idaho refused to deny the most radical interpretation of its anti-abortion statute as pregnant women with health crises were being airlifted out of the state on a frequent basis:

In January, the court took the extraordinary step of letting Idaho enforce its ban on abortion with an exception only to prevent the death of a pregnant woman, despite an ongoing challenge from the Biden administration arguing that it intruded on federal protections for emergency room care.

No recorded vote was made public, but CNN has learned the split was 6-3, with all six Republican-nominated conservatives backing Idaho, over objections from the three Democratic-appointed liberals.

But over the next six months, sources told CNN, a combination of misgivings among key conservatives and rare leverage on the part of liberal justices changed the course of the case.

The first twist came soon after oral arguments in late April, when the justices voted in private on the merits of the conflict between Idaho and the Biden administration. There suddenly was no clear majority to support Idaho, sources said. In fact, there was no clear majority for any resolution.

As a result, Chief Justice John Roberts opted against assigning the court’s opinion to anyone, breaking the usual protocol for cases after oral arguments.

That move would have marked a startling turn of events for any dispute, but it was particularly surprising here because the court had already given Idaho the advantage by granting its appeal before a hearing on the merits of the case could be held in a US appellate court.

Instead, a series of negotiations led to an eventual compromise decision limiting the Idaho law and temporarily forestalling further limits on abortion access from the high court. The final late-June decision would depart from this year’s pattern of conservative dominance.

Apparently one reason the Court decided to punt was that having lost Barrett Roberts didn’t like the optics of a 5-4 gender-line split exacerbating the Idaho airlifts:

Judging from the public arguments alone, there appeared a chance the court’s four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition.

But at the justices’ private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it.

They worked with Barrett on a draft opinion that would dismiss the case as “improvidently granted.”

I still wouldn’t bet against the Court siding with Idaho once the election is over, but DIGing the case is certainly better than the alternative.

Meanwhile, Alito and Thomas would 100% be a vote for 14th Amendment fetal personhood, and probably Gorsuch too:

During internal debate from the end of April through June, the court’s three other conservative justices – Samuel Alito, Clarence Thomas and Neil Gorsuch believed the facts on the ground were clear and that Idaho’s position should still prevail. They said the 1986 EMTALA did not require hospitals to perform any abortions and could not displace the state’s ban.

Alito, who had authored the 2022 decision in Dobbs v. Jackson Women’s Health Organization overturning Roe, was adamant that the text of EMTALA required the opposite of what the Biden administration was advocating. He said the law compels Medicare-funded hospitals to treat, not abort, an “unborn child.”

It should go without saying that this reading of EMTALA is nonsensical, which has never stopped Alito before or since.

I suppose all things being equal it’s good that some of the Court’s Republicans haven’t completely ignored the public optics — at least on cases less important to them than granting monarchical powers to Daddy Trump — but it’s a very thin reed on which to hang critical rights.