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Supreme Court Hears Arguments On Emergency Abortion Case; Tennessee State Lawmakers Pass Bill Allowing Faculty To Be Armed; Pro- Palestinian Protests Spread Across College Campuses. Aired 11:30a-12p ET

Aired April 24, 2024 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[11:30:00]

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WOLF BLITZER, CNN ANCHOR: We're following the very high stakes U.S. Supreme Court hearing right now on emergency abortion care. Only moments ago, the justices pressed an attorney for the Idaho state's very controversial and near-total ban position now. That law prevents doctors from performing abortions for pregnant women having a non- life-threatening medical emergency like organ failure or infertility.

Right now, the government is presenting its case. The crux of its argument, this law harms women and the nation's public health. Let's listen in right now the U.S. Solicitor General Elizabeth Prelogar and Justice Ketanji Brown Jackson are going back and forth.

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ELIZABETH PRELOGAR, U.S. SOLICITOR GENERAL: Criminal prosecution. The doctors can't provide the care, because until they conclude -- can conclude that a prosecutor looking over their shoulder won't second guess that maybe it wasn't really necessary to prevent death.

UNIDENTIFIED MALE: Thank you, Counsel. Justice Thomas? Justice Alito?

SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: We've now heard -- let's see, an hour and a half of argument on this case. And one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn't even been mentioned at all.

And that is EMTALA's reference to the woman's "unborn child." Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child?

PRELOGAR: It's not an odd phrase when you look at what Congress was doing in 1989. There were well-publicized cases where women were experiencing conditions where their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them.

ALITO: Well, how do you seem --

PRELOGAR: So -- but Congress said --

ALITO: Have you seen --

PRELOGAR: Is that it --

ALITO: Have you seen abortion statutes that use the phrase unborn child? Doesn't that tell us something?

[11:35:07]

PRELOGAR: It tells us that Congress wanted to expand the protection for pregnant women so that they could get the same duties to screen and stabilize when they have a condition that's threatening the health and well-being of the unborn child. But what it doesn't suggest is that Congress simultaneously displaced the independent pre-existing obligation to treat a woman who herself is facing grave life and health consequences.

ALITO: Well, let's walk through the provisions of the statute that are relevant to this issue regarding the status and the potential interests of an unborn child. Under B one, if a woman goes to the hospital with an emergency medical condition, that's the phrase, the hospital must either stabilize the condition or under some circumstances, transfer the woman to another facility. So, we have this phrase, emergency medical condition, in that provision.

And then under E one, the term in medical -- emergency medical condition is defined to include a condition that places the health of the woman's unborn child in serious jeopardy. So, in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child. But performing an abortion is antithetical to that duty. How -- and you go --

PRELOGAR: But in a circumstance --

ALITO: You go so far as to say that the statute is clear in your favor. I don't know how you can say that, in light of the -- of those provisions that I've just read to you.

PRELOGAR: The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger -- when her health is in danger. That stabilization obligation equally runs to her and makes clear that the hospital has to give her the necessary stabilizing treatment. And in many of the cases you're thinking about, there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability that it's inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance --

ALITO: It doesn't --

PRELOGAR: Even though it's senseless.

ALITO: It doesn't what I've read to you show. The statute imposes on the hospital a duty to the woman certainly and also a duty to the child. And it doesn't tell the hospital how it is to adjudicate conflicts between those interests. And it leaves that to state law.

And now, maybe a lot -- most of your argument today has been dedicated to the proposition that the Idaho law is a bad law. And that may well be the case. But what you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation under certain circumstances to perform an abortion even if doing that is a violation of state law.

PRELOGAR: If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statutes so that the fetus itself is an individual with an emergency medical condition. But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman.

The duty is still run to her. And in a situation where her own life and health is gravely endangered that in that situation, EMTALA is clear. It says the hospital has to offer her stabilizing treatment.

ALITO: Wait. The only --

PRELOGAR: And she doesn't have to accept it. These are tragic circumstances. And many women want to do whatever they can to save that pregnancy. But the statute protects her and gives her that choice.

ALITO: The only way you try to get out of the statutory interpretation that I just posited is by focusing on the term individual. And you say, aha, in the dictionary act, individual is defined to exclude an unborn child or fetus. That's the only way you can try to get out of what I've just outlined.

And isn't it true that under the dictionary -- that dictionary act definitions apply only if they are not inconsistent with the statutory text? And when you don't have a text, that certainly you wouldn't dispute the fact that the hospital has a duty to the unborn child where the woman wants to -- wants to have the pregnancy, Yoda term, it's indisputably protects the interests of the unborn child. So, it's inconsistent with the definition in the end of the -- in the dictionary act.

PRELOGAR: No, not at all. The duty runs to the individual with the emergency medical condition. The statute makes clear that's the pregnant woman and of course, Congress wanted to be able to protect her in situations where she's suffering some kind of emergency, and her own health isn't at risk that the fetus might die.

That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is in grave distress, but the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that. But to suggest that in doing so, Congress suggested that the woman herself isn't an individual that she doesn't deserve stabilization, I think that that is an erroneous reading of this statute.

[11:40:00]

ALITO: Nobody's suggesting that the -- a woman is not an individual when she doesn't -- she doesn't deserve stabilization.

PRELOGAR: Well, the --

ALITO: Nobody suggests --

PRELOGAR: I think, the premise of the question would be that the State of Idaho can declare --

ALITO: (INAUDIBLE) It doesn't --

PRELOGAR: That she cannot get the stabilizing treatment, even if she's about to die. That is their theory of this case and this statute, and it's wrong.

UNIDENTIFIED MALE: Justice Sotomayor?

SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: General, this lack of conflict, which your opposing colleague says doesn't exist, you mentioned a situation where it does. Why don't you succinctly state what use -- what they admit their stay light? Tell us exactly how you define where the daily life -- daily life exists.

PRELOGAR: The daylight as I see it exists in two dimensions. They think that doctors can only provide stabilizing care when the woman is facing death. And we think no, you can take into account things like kidney failure, the risk of a seizure, and lifelong neurological impacts based on that.

SOTOMAYOR: But they said the recent decision of the Oregon court says you don't need to have to be eminent or immediate, I think is the word they use if I'm not wrong.

PRELOGAR: So, what the Idaho Supreme Court said in that decision is that there's no particular level of imminency and no certain percent chance requirement. But what the court couldn't do is turn away from the language requiring the type of harm to exclusively be depth, and also the inherent concept of necessity requiring some degree of eminence. It's true that it's a subjective standard under Idaho law, and the court made that clear.

But what the Idaho Supreme Court also said is, prosecutors are free to come in and have other medical experts second-guess doctors' decisions by saying maybe you didn't subjectively think she really needed it as necessary to prevent deaths because look, her -- in fact, had ruptured, but she wasn't yet infected. And that's exactly the kind of situation that leads to women being driven out of state, dumped on neighboring states by Idaho, and criminalizing the care -- the essential care that they need.

SOTOMAYOR: Thank you.

UNIDENTIFIED MALE: Justice Kagan? ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE: Yes. If you could just talk a little bit about that. Because as I understood it, for example, I read recently that the hospital that has the greatest emergency room services in Idaho has just in the few months that this has been in place, had to airlift six pregnant women to neighboring states. Whereas in the prior year, they did one. The entire year. So, if Mr. Turner is right about what the state is trying to convey to hospitals about when they'll be prosecuted, like why is this happening?

PRELOGAR: I think that the reason this is happening is because those doctors can look at the text of the statute itself. They can look at the Idaho Supreme Court's decision, which made clear -- very clear that this was a departure from prior Idaho laws that tracked EMTALA, and they can recognize that their livelihood is on the line, their medical license, their ability to practice medicine, their freedom if they have to go to jail and serve one of these minimum two-year sentences of imprisonment, and they simply cannot provide the care. Even consistent with their subjective medical judgment because as a matter of -- matter of medical reality, for many of these conditions, it's not yet putting a woman at the brink of death or necessary to prevent her death. Yet, they know that the standard of care is to provide her with termination because she is just going to get worse and worse and worse if they wait it out.

And the other important point about this, and I think it goes back to this dual stabilization idea is that tragically, in many of these cases, the pregnancy is lost. There's not going to be any way to save that fetus. Because a woman who has PPROM at 17 weeks, there is no medical way to sustain the pregnancy to give the fetus a chance. So, in that situation, what Idaho is doing is waiting for women to wait and deteriorate and suffer that lifelong health consequences with no possible upside for the fetus. It just stacks tragedy upon tragedy.

KAGAN: And it can't be the approve -- you know, it's become transfer as the appropriate standard of care in Idaho. But it can't be the right standard of care to force somebody onto a helicopter.

PRELOGAR: And it's entirely inconsistent with what Congress was trying to do in the statutes. You know, one of the primary motivators here was to prevent patient dumping. The idea was, we don't want people to have to go somewhere else to get their care.

You go to the first emergency room in your state, and they have to treat you and stabilize you. But this effectively allows states to take any particular treatment. They don't want their hospitals to provide and dump those patients out of state. And you can imagine what would happen if every state started to take this approach.

KAGAN: A question on the Spending Clause questions that you've been asked. I mean, what would -- if you accepted some of these theories, what would the consequences of something like that be that we would have to worry about?

PRELOGAR: The -- I think that it would call into question any number of federal spending statutes that provide funds to private parties. And there are a bunch of them. You know, there's the Medicare system itself, which is, of course, a major federal spending program.

There are funds provided under Title Six -- under Title Nine. A lot of federal statutes out there that give funds to private parties and insist on conditions of compliance with the federal funding restrictions. And if the court were to suddenly say that can't preempt contrary state law, then I think that it would seriously interfere with the ability of the federal government to get its benefit of the bargain in those spending programs.

[11:45:16]

KAGAN: And you mentioned before that this question has never been a part of this case?

PRELOGAR: That's right. They did not make these arguments in the lower court. They briefly refer to the Spending Clause, but I don't understand them to have pressed this argument specifically.

And so, I think that the lower courts did not address it. I think the district court said in a footnote, they briefly refer to it in a footnote of their brief. And it's essentially waived.

KAGAN: Thank you.

UNIDENTIFIED MALE: Justice Kavanaugh?

(END AUDIO TAPE)

BLITZER: All right, we're going to continue to monitor the Supreme Court oral arguments on this important abortion rights-related issue. I want to bring in our Chief Legal Affairs Correspondent Paula Reid, CNN's Medical Correspondent Meg Tirrell, and Sonia Suter, a professor of law at the George Washington University School of Law. And let's talk, first of all, Paula, remind us what's at stake right now.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: This is one of the major questions about what the justices meant after they overturned Roe v. Wade. This is one of the cases that's gone back up to clarify, OK, you kick this back down to the states, that's more complicated than you realize. This case specifically focuses on the state of Idaho, an emergency care for pregnant women.

Now, under the abortion ban in Idaho, there is an exception for women to have an abortion if their life is at risk -- if that's part of what is needed to save their life. But the Biden administration has come in and filed a lawsuit and said, actually, under federal law, you shouldn't have to wait until a life is at risk. Instead, you can perform this procedure if you need to do so to stabilize a woman.

So, that is the crux of this argument today. And again, this is one of a few cases we're seeing this term that the justices have to grapple with their decision to overturn Roe.

BLITZER: Yes. It's a very significant decision. That's why we're monitoring. And, Meg Tirrell, I'm anxious to get your thoughts. So, we just heard in these oral arguments about women having to go out of state Idaho, in this particular case, to get an abortion that potentially could save that woman's life.

MEG TIRRELL, CNN MEDICAL CORRESPONDENT: Yes. You know, we've been to Idaho to talk with doctors and patients there, to hear about the effects of this abortion ban. And that's something we heard from doctors. We talked with one doctor at the Maine healthcare system, the biggest hospital in the state called St. Luke's. And she told us in the first prenatal visits for her patients now, she's a family medicine physician, she counsels them on what to expect from pregnancy, and she says, you should probably get life flight insurance so that if you have an emergency, and this is a rare complication, but we'll have to fly you out of state.

And we heard this from the justices just now talking about some data provided by St. Luke's that last year when there was an injunction on this whole EMTALA aspect of the ban, one patient was transferred out of state. Just in the first few months of this year while that ban was lifted, and Idaho's full ban could go into effect, six patients were transferred. That would annualize to 24 this year. So, that's a small number of patients. These are rare emergencies, but it's a 20-fold increase they're saying because they don't have these EMTALA protections.

BLITZER: Yes. EMTALA stands for the Emergency Medical Treatment and Labor Act, which Congress passed back in 1986. Sonia, you're the law professor, give us your major takeaway from what's been going on today.

SONIA SUTER, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: Yes. Well, I think, you know, not surprisingly, the conservative justices, Alito, Thomas, and Gorsuch seem skeptical. But I think there's some real uncertainty about Amy Coney Barrett and the Chief Justice. Obviously, the liberal justices seem to be in favor of what the government's arguing.

I -- you know, I think Kavanaugh was just speaking before we started talking now, so I'm curious to see what Kavanaugh asks the Solicitor General. But I think there's some uncertainty -- there was a lot of focus on the federal conscience clause and whether doctors were required to perform abortions if EMTALA would demand it to stabilize medical care. And the question of the status of the unborn child, the reference to that in the statute did come up with Alito, which could have implications for personhood is the obligation equal to the unborn child and to the mother. But that's the only justice who's really talked about that issue. I thought there might have been more discussion there.

BLITZER: Very interesting. You know, Paula, when will the nine justices decide this case, which could have major ramifications outside of Idaho too?

REID: Yes, absolutely. We expect most of their major decisions will be revealed in late June potentially even early July. That is, of course, the heart of campaign season. So, it's so significant to remember that in this case, also in the other major abortion case, which deals with Mifepristone, or the drugs used in medication abortion, these two cases have considerable impacts on the women whoever need that medication or need that procedure, that could have an enormous impact on the outcome of the presidential race.

We obviously cover a lot of Supreme Court cases related to the elections specifically to former President Trump. I would argue that the outcome of these two cases will likely have a far more significant impact on Trump's chances of retaking the White House than any of the cases related to him. Because while historically abortion has been an issue that has galvanized Republicans, we've seen in the midterms since Roe was overturned, this is now an issue that can truly galvanize Democrats.

[11:50:07]

BLITZER: It certainly can. It could be a huge, huge political issue going into the general election. Guys, thank you very, very much.

Still ahead this hour, the deadline for those pro-Palestinian protesters to leave Columbia University in New York has come now and gone, but their tent encampments still stand. We'll have a live report from the campus. That's coming up.

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[11:55:02]

BLITZER: New this morning. Tennessee State lawmakers have passed a bill that would allow teachers and school staff to carry guns in school. Protesters at the Tennessee State Capitol began chanting, "Blood on your hands," when the bill passed yesterday. Listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: This is the reaction of rage --

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BLITZER: The bill says faculty must undergo a background check, obtain a handgun carry permit, and complete firearm safety training. It's now headed to the desk of Republican Governor Bill Lee. This legislation comes nearly a year after Tennessee's deadly school shooting when three children and three adults were killed at a private elementary school in Nashville. House Speaker Mike Johnson, meanwhile, will pay a visit to New York's Columbia University in just a few hours where he says he will call for the school's president to resign.

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REP. MIKE JOHNSON (R-LA): We'll be hosting a press conference there with some of my colleagues from the House Republicans from New York to call on this -- the president of the university to resign. It's unconscionable. This president Shafik is -- has shown to be a very weak, inept leader. They cannot even guarantee the safety of Jewish students. They're expected to run for their lives and stay home from class.

(END AUDIO CLIP) BLITZER: Over overnight, a new deadline went into effect for pro- Palestinian protests ongoing at Columbia University. Student protesters who have been camping on school grounds now for over a week, now have less than 48 hours to pack up and leave according to the school's president. CNN Correspondent Omar Jimenez is joining us right now.

He's live at Columbia University on the campus. Omar, today marks what, day eight of protests where you are? What are you hearing from students and faculty there about the house speaker's upcoming visit today?

OMAR JIMENEZ, CNN CORRESPONDENT: Yes. So, day eight of the encampment led protests here at Columbia University. House Speaker Mike Johnson is expected to visit a little bit later this afternoon where he's going to meet with Jewish students here and also call a press conference, likely to say some of what we've already heard today calling on Columbia University President Minouche Shafik to resign. He's called her a weak leader, and expanding more to the protests that we've seen across the country on similar college campuses saying that it is maddening what we're seeing on these college campuses across the country, calling it disgusting and unacceptable.

Now, as for those that are camping out, they say they are not going anywhere until their demands are met. And those demands, at least some of them, the main focal point that they have told me is that they want Columbia University to divest from corporations that support Israel here. And that is sort of the core of why this camping out began. And it started to line up when -- with when their university president was testifying on Capitol Hill last week about antisemitism on college campuses.

Now, we have seen protests span from that. Some of them on campus as part of the encampment but also some outside of campus, essentially where I am right now at the gates of Columbia University. And we've seen a range of forms of protest. We've seen some that had been very peaceful, calling for solidarity with Gaza, some that have just tried to call for unity.

Others, though much more violent and rhetoric, much more antisemitic and rhetoric, a good portion of which have come from those protests that have been outside campus. So, much so to the point that students have tried to distance themselves from those coming on the outside. But that hasn't -- that -- but that's not to say there are no tensions on campus where many Jewish students have said that they do not feel safe and as part of why the school has gone hybrid in this learning.

BLITZER: Interesting. Yes, it's very disturbing to see what's going on. Omar, Columbia University certainly isn't the only university where these protests have been taking place. So, tell us what else is going on.

JIMENEZ: Yes. So, obviously, here at Columbia University, we saw the encampment start last week. We've also seen similar encampments pop up at schools, like Emerson College, for example, in the northeast, but also protests at Yale University, and New York University, both of -- both locations where we saw multiple arrests happen over the past few days. Out in California, California Polytechnic. There's Humboldt.

There's also a large set of protests going on there at the University of Michigan. The point is that at college campuses coast to coast, there had been at the very least similar styles of protest to what we've seen here at Columbia. All in either solidarity with this campus, but also pro-Palestine protests as well.

Now, as far as when this could potentially come to an end here at Columbia, the university president has been locked in negotiations with students -- with student leaders, essentially. She had set a midnight deadline last night to clear out -- or reach an agreement to clear out the encampments. Otherwise, they would have to find alternative means to clear out the encampments.

[12:00:02]

They seem to make good progress. And so now, that deadline has been pushed back another 48 hours. But previously, Wolf, she sent in the NYPD to clear out these encampments, drawing a lot of criticism from students and professors. We don't know what those alternative ways to clear out the encampments that she mentioned, could be once we hit that 48-hour mark.

BLITZER: We'll stay in close touch with you. Omar Jimenez in New York for us. Omar, thank you very, very much.

And to our viewers, thanks very much for joining us here in the CNN NEWSROOM. I'm Wolf Blitzer in Washington. I'll be back later tonight at 6:00 p.m. Eastern in "THE SITUATION ROOM." Stay with CNN. "INSIDE POLITICS" with Dana Bash starts right now.