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Supreme Court Temporarily Extends Access to Abortion Drug; Justice Alito Sets New Deadline of 11:59 P.M. Friday. Aired 3:30-4p ET

Aired April 19, 2023 - 15:30   ET

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

[15:30:00]

JIM SCIUTTO, CNN ANCHOR: -- mifepristone is significantly restricted in, quote, unquote, abortion states or states that continue to allow abortion?

PHIL MATTINGLY, CNN CHIEF WHITE HOUSE CORRESPONDENT: Yes, Jim, I'm not going to surprise you when I tell you that they're not detailing what might happen if they feel like they end up on the wrong side of this. They don't want to prejudge anything. They don't want to get ahead of anything. But it is very clear that they are working quite intensively on what would happen if the decision does not go their way. And I think they've also made very clear that they will pursue any legal options they have. But I think on the policy side of things there are a lot of options that they're being considered as well.

And now, obviously, as I'm sure you've experienced, they push back quite hard on the idea that they weren't prepared for Roe versus Wade. But when you talk to advocates and key allies of the White House, they felt like they were caught off guard. They felt like they didn't move quickly enough, and they still feel like policy wise, there are more options on the table that they have chosen not to take.

I do get the sense in talking to officials that whether they agree or disagree with that assessment and it's mostly disagree. They are certainly intent on not allowing either the perception or the reality of something like that to happen again in this case. They're making very clear how important preparation here is.

SCIUTTO: Phil Mattingly at the White House. And goodness, potentially dramatic effects here -- Boris and Brianna.

BORIS SANCHEZ, CNN ANCHOR: Yes, major, major news as well on the political front, because as you remember when Roe versus Wade was overturned, President Biden and Democrats campaigned on this being a central issue going into the midterm election.

Let's get some reaction from lawmakers in Congress now. CNN's Manu Raju has been tracking the latest from Capitol Hill. Manu, how are Republicans responding to this?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Well, right now on this latest temporary ruling here, no official reaction yet. We expect to hear more from members as we talked to them as a running in and out of votes and heading to briefings and the like.

But in the run up to this Supreme Court move, we didn't hear much from a lot of Congressional Republicans. In fact, is very similar to the way they handled the overturning of Roe v. Wade in the running and the run up to the Dobbs decision. Many Republicans did not want anything to do with that decision. In fact, they were eager to -- while they supported the idea of overturning abortion rights, they do not want to embrace that, given the concerns about potential political backlash.

You're seeing something similar here in this case as well. I've talked to a number of top Republicans, none of them -- some of them say we're going to wait for the rulings to actually play out before we actually take a position on this issue. One of them, Senator John Cornyn he's a member of the Republican leadership. I asked him about this decision. If he supports striking down these FDA rules. He would not go that far, even as we're seeing a completely different reactions from Democrats. Who have tried to seize on this potential that this medication will no longer be available to women nationwide.

It's -- there have been a press conference after press conference, rally after rally, trying to do something that they did back in the last election cycle. Try to energize younger voters, women voters, trying to bring them out here as we head into the next election cycle. Recognizing full well that that helped them keep the Senate majority. Helped them limit their losses in House seats. And believe me again if this case does not go their way that could happen again.

So, you're seeing how this is a both parties are reacting to the prospects of this, but the immediate reaction right now, quiet on Capitol Hill as members are trying to process this and wait and see. Gauge what their next steps will be. Depending on what the ultimate decision is from the Supreme Court.

BRIANNA KEILAR, CNN ANCHOR: Yes, and maybe we will see that as soon as Friday, perhaps, Joan, as they bought themselves a little bit of time. I guess I wonder, how are they going to spend that time? What will the Supreme Court be doing in the next 48 hours?

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Well, yes. Well, they will be talking to each other if there is close to a majority to either accept the request of the Biden administration to put all this litigation on hold and let the drug be available. Why? While the controversy plays out? Maybe some people are ready to write dissents to that. Or maybe there's four justices to go one way and they need the fifth. A lot of things can be going on.

Obviously, they do not have enough votes locked in. And anybody who wants to protest those votes ready to go. It's like anything they bought time. But the clock -- now that they've bought these two days, I cannot imagine that on Friday at this time, we're going to get a message saying, oh, can we just please get another little extension? No, they will decide at this point.

And I think, I actually -- I was not surprised about this to tell you the truth. In part just because I was so aware of their time crunch and when I saw the solicitor general of the United States, like pitch that as a possibility, you know, if you're not ready to decide, do not decide, especially if you're not ready to decide in our favor. Just wait a little bit. And maybe, you know, things will shake out in a way that will have a sensible resolution, at least for the near term.

[15:35:00]

But just so our viewers know, no matter what the Supreme Court does at this point on Friday, it will not be fully resolving this case. It still has to be heard on the merits, likely first by the Fifth Circuit Regional Court to assess the ruling by Judge Matthew Kaczmarek that throughout the FDA approval, and then the justices themselves would actually have to have full briefing and hear oral arguments until they did anything really consequential. Although removing the drug or limiting access in and of itself is going to be consequential.

SANCHEZ: A huge step from the Supreme Court and a major decision coming on Friday. Stay with CNN NEWS CENTRAL. We're following all the latest developments on this breaking news, and we'll be right back.

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SCIUTTO: Breaking news into CNN. The Supreme Court has just extended the stay that lets women keep access to the nation's most commonly used abortion pill, mifepristone.

[15:40:00]

They have added just another 48 hours or so where the restrictions will remain lifted while the justice continue their debate and decision making process. CNN justice correspondent Jessica Schneider joins us here. It is a one-page decision -- actually a one-line decision signed by Samuel Alito. And to be clear here, this is an administrative stay, not a stay spending -- pending appeal. Tell us what this means and what happens next.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Jim, this basically means we're in the same position we were last week at this time, just having to wait mere days until the Supreme Court issues another decision here.

So, what happens? Well, we're basically in status quo mode. Basically, meaning that there are no changes to the way the abortion pill has been administered in previous months or even years. The FDA and the DOJ had basically been pressing for at least this sort of remedy from the Supreme Court, you know, as Joan Biskupic has been mentioning.

The solicitor general here had said that the Supreme Court as recently as yesterday, look, if you can't decide just yet. At least give us another administrative stay. Meaning at least give a few more days of the status quo here.

So, the Supreme Court presumably will be working behind the scenes here to finally decide by Friday before midnight as to what exactly is definitely going to happen here. We still don't have that answer, but at least for patients, doctors, drug manufacturers, Jim, things will remain on hold, will remain the same. While the Supreme Court once again decides what to do as of probably Friday, Jim.

SCIUTTO: That's right. As you know, a little more than 48 hours here. What are their options, then? The court's options at 11:59 p.m. Eastern daylight time as noted in the decision on Friday. What are their options at that point?

SCHNEIDER: Yes, there are a number of options here. I mean, one of them is that the parties have also asked them to take up this case for quick resolution on the merits before the end of this term. It's unclear if they'll do that or just let this play out at the Appeals Court below, which itself has set up pretty fast paced schedule here with oral arguments scheduled for less than a month, on May 17th.

The decision really for the Supreme Court comes Friday night now is, do we extend this day pending appeal? So do we put these restrictions on hold for a longer period of time -- weeks/months until the case eventually is decided by the Fifth Circuit, and then it gets to the Supreme Court.

You know what's interesting is next week marks the last week of arguments for the Supreme Court. So, presumably if they put these restrictions on hold and say, let this continue playing out in the Fifth Circuit, in the appellate, in the appeals process, it's very conceivable that all of these restrictions could be on hold well into the fall until the Supreme Court is actually able to hear this case. So, it's unclear here -- so they could put these restrictions on hold even more or they could just let these restrictions go into effect. And that's what the FDA and the DOJ is really concerned about here. Saying this isn't going to be an easy flip the switch changes. They said that a lot has to go into these restrictions that could potentially be mandated here, Jim.

SCIUTTO: Up to the FDA and the administration and a lot of women watching this broadcast right now, I'm sure concerned watching closely. Jessica Schneider, thanks so much.

And Brianna to that point, the restrictions being discussed here, they are not insignificant restrictions if they were to go into effect on how exactly this is ministered, when, by whom, for what period of time. This is a big decision here.

KEILAR: Yes, all across the country, right? We have CNN health reporter Jacqueline Howard here to help us understand some of this. Tell us about your reporting in the real-world implications of this abortion pill battle that we're witnessing -- Jacqueline.

JACQUELINE HOWARD, CNN HEALTH REPORTER: Yes, Brianna, like Jim said, this is significant and whatever happens will have meaningful implications for the future of medicine. Medical school students are watching this closely. Medical school graduates are watching this closely. And we already are seen that the number of medical school grads who are applying for residency, the number of applicants is declining in states that currently ban abortion. Which shows that medical school graduates who are applying for residency are having some concerns about what abortion restrictions could mean for the training they receive and the care that they give to their patients. When you look at the numbers -- this is from the Association of

American Medical Colleges -- it shows that nationally, there was a 2 percent decline in medical school grads applying for residency programs across the country. But in states with abortion bans, the decrease in applicants was 3 percent. And when you look specifically at students who specialize in obstetrics and gynecology the decline in states with complete bans was 10.5 percent, in states without restrictions, the decline was 5 percent.

[15:45:00]

So, that shows a 10 percent drop in residency applicants in states with bans compared with a 5 percent drop in states without the restrictions. That shows that difference there, and it shows, really, the impact that this is having on our future doctors, on medical school students who are wondering, what does this mean for them and their careers moving forward.

KEILAR: And just to be clear, Jacqueline, this particular pill, this abortion pill, also is used in miscarriages, right? Tell us about that.

HOWARD: Exactly. So, what this means is this will have major implications for how physicians can help treat their patients moving forward when and where, during the state of care that this can be prescribed. So that's, you know, one part of the full picture here, Brianna, when we watch this unfold and the impact this could have on not just the physician workforce, but those who are coming into the physician workforce. Those who are training. Those who are students at this moment. Which is why that this not only will have implications as in abortion medication, but also like you said, as a medication used in other aspects of care for women, Brianna.

KEILAR: Yes, it's really interesting these trends that you're seeing, Jacqueline, that you're detailing here. Jacqueline Howard, thank you so much.

I mean, those are the real-world implications really, just a little bit of what we are seeing, and that's why so many people are paying attention to this and will continue to hear especially in the next 48 hours, Joan, as we wait and watch and this see what the Supreme Court will do.

BISKUPIC: I think that's right. You know, I think they understand at least their part that so many people are watching. And why do something if you can just wait. Give it a little more thought, a little more consideration, given how this whole case has been rushed to the forefront of the American life.

You know, this was a case that was filed down in Texas by anti- abortion physicians and medical groups who specifically sought out this judge, Matthew Kaczmarek, to try to get the ruling it did. And then it's zipped up through the regional court of appeals, the Fifth Circuit, that allowed a considerable amount of Judge Kaczmarek's decision to stay. And here we are just a few weeks later with this -- what could potentially be a sea change for access to medication abortion. Which is we've made clear is exactly what the part that is left after what the Supreme Court did in June. It's the part that allows states that have permitted abortions in their -- within their boundaries. It's those states said give them give a method to those women.

SANCHEZ: And Joan, I'm curious to get your perspective on something. This appears to be firmly in the grasp of Justice Samuel Alito, right?

BISKUPIC: Yes, well, and as what our audience knows of Samuel Alito is he's the one who wrote the Dobbs abortion decision back in June. But his role here is only by virtue of the fact that he is the justice in charge of this region of the country, the Fifth Circuit. They divide up the regional circuit courts of appeals and Justice Alito happens to have the circuit. So, the emergency request from the Biden ministrations and the drug manufacturer, Danco, went to him.

And typically, what happens is an individual justice will refer the issue to the full court. Now according to his order, he has not yet done that. But I cannot imagine that he has not consulted with his colleagues. They would definitely know where people stand because they wouldn't have to win this postponement just because of one individual justice. They saw -- they gave themselves more time because as a group they are not ready.

SANCHEZ: Again the major news into CNN, the Supreme Court temporarily extending this pause on abortion pill restrictions until Friday night. We're going to stay on top of this story and bring you the very latest. Stay with CNN NEWS CENTRAL, we're back in moments.

[15:50:00]

(COMMERCIAL BREAK)

KEILAR: And we're following our breaking news. The Supreme Court has just extended the stay that lets women keep that access to the nation's most commonly used abortion pill mifepristone. They have added another 48 hours, where these restrictions will remain lifted, while the justices continue their decision-making process.

Joining us now, we have our CNN legal analysts. We have Steve Vladeck with us, and Jennifer Rodgers with us as well. Steve, what does this indicate to you? Buying time, 48 hours, where these abortion pill restrictions are not going into effect.

STEVE VLADECK, CNN LEGAL ANALYST: Yes, I think the best we can say and I think Joan already said this before the break, is that this is probably a play to give some justices, a number of justices, time to write something more than just a summary one sentence order, which is what we thought we might get today.

The problem with that is that doesn't tell us which side they're on. It doesn't tell us which result that's in support of. It just suggests that whatever ruling we get from the full court on Friday, is going to have either or both of some explanation by the majority about why they either are or are not stay in the Judge Kaczmarek ruling pending appeal and or separate concurrences and dissent. [15:55:00]

So, I think it raises the odds that there will be explanations on Friday, but I don't think it really tilts the scales that heavily toward which result we'll get in. It really is just a play for time on the court's part.

SANCHEZ: Jennifer, and again, we realized we're asking you guys to read tea leaves here and no one is inside that room right now. But Joan Biskupic made the point -- I think you made it as well, Jennifer -- that if they had the votes to issue a more lasting stay here, stay pending appeal, that they would have done it not punted another, well, 50 some odd hours until midnight Friday. Do you read that, Jennifer Rodgers, in that way?

JENNIFER RODGERS, CNN LEGAL ANALYST: I'm afraid I do. I mean, you know, listen, preliminary injunctions, which is the posture of this, is supposed to be about preventing harm. You know, you're supposed to go with the status quo. If not doing that will cause harm and, you know, the chaos that will ensue if any part of judge Kaczmarek's order -- much of which was affirmed by the Fifth Circuit -- goes into effect. Suggests that the easiest thing to do, the thing that will cause the least harm, is for them to just extend this stay through the litigation. And so, you know, I feel like that's the easy call here. That's the call that causes the least harm.

So, if they were, you know if they had the votes to do that, I feel like they would have just done that by now. And the fact that they're not doing that suggests it's going to be some sort of a mixed bag where they affirm parts and then don't affirm parts and it's going to be probably a big mess. But it also means we're not going to get a stay of it for very long.

SANCHEZ: And Steve, taking a step back. What is the key question that the Supreme Court is looking at here? Is it ultimately whether a judge can make a decision that supersedes the authority of the FDA?

VLADECK: Yes, you know, Jim, I think that's what's lurking in the background. But Jennifer's right that the real question before the justices this week is the harm question. When a party goes to the Supreme Court and asks for what we call emergency relief, asks for a stay pending appeal. The justices are supposed to do what we call balance the equities. They're supposed to look at who is harmed more by either letting this role go into effect or keeping it on pause.

And so, you know, the reason why I think this is such a sort of difficult tea leaf to read is because you could also think that by extending the stay for two more days, the justices are reflecting the point that they don't want Kaczmarek ruling to go into effect at any point.

You know, we just don't know at this point. The larger point is that the justices are going to have to say something meaningful on Friday because without a stay, whether because the justices formally deny it or because they don't act by 11:59 p.m. Eastern time on Friday. Large chunks of Judge Kaczmarek rulings go into effect first thing Saturday morning, dramatically restricted access to mifepristone on a mission wide basis.

Jim, I think I think the question is, are the justices really willing to let that happen? At least without some kind of full-throated explanation as to why.

KEILAR: Steve and Jennifer, thank you so much for your expertise on this. This breaking news that we're following the justices taking 48 more hours extending that pause on these abortion pill restrictions. We will find out where they go on Friday night.

SCIUTTO: We've been surprised by this court before on abortion rights. So, we should watch this decision very closely. It's hard to predict.

SANCHEZ: Yes, and especially as they laid out their decision on Roe versus Wade last year, saying that it wouldn't be something that was a blanket decision for the entire country. This one may turn into one.

KEILAR: Our colleague Jake Tapper continues our breaking coverage. "THE LEAD" starts right after this.

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