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Supreme Court Mistakenly Posts Abortion Ruling Document Online. Aired 1:30-2p ET

Aired June 26, 2024 - 13:30   ET

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

[13:30:00]

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: When the justices dismiss the cases in providently granted, often, they do that in just one sentence. The majority in this case would be just saying we dismiss this case as improvidently granted.

Perhaps, any of the six, the likely six in the majority, might be writing some sort of concurrence to explain. They often do not do that. But let's just say, for purposes of argument, about what was not completely done here, even though it appears that we really do know the outcome.

But let's just say that either those justices who we're in the majority, the chief, Justices Kavanaugh, Amy Coney Barrett, Elana Kagan, Sonia Sotomayor, Justice Ketanji Brown Jackson -- that would be the liberals.

And then key conservatives, they're the ones who believed that this case should -- had been improvidently granted. That means accepted on appeal. And they might -- they might be writing some explanation.

As I said, normally, you just get that one sentence, dismissed as improvidently granted.

But in this case, since, according to Bloomberg, we know who the three dissenters are from that, Justices Clarence Thomas, Neil Gorsuch and Samuel Alito, they likely, under most circumstances, would have wanted to say something about that.

They would have been -- you know, this case was argued the last week in April. and I presume that the reason we didn't get this order dismissing this case as improvidently granted soon after is that those three dissenters had something to say about it.

And something -- probably quite angrily to say about why the justices should have actually handled this case.

And probably, given what they -- those three individual said during oral arguments, they probably think Idaho should prevail here, that Idaho should be able to completely ban any abortions, even in emergency rooms, unless it's to prevent a woman's death, not in regard to just her health, to prevent a woman's death.

So possibly -- and, Boris and Brianna, I am just speculating what the problem was today, what the problem has been over these last couple of months when they hadn't ruled, is that those three people we're writing a descent.

And maybe it appeared that that dissenting opinion was finished. But for one reason or another, it got pulled back. Or maybe, as I say, there could have been some other writings. So that would be why this happened.

Now, they've obviously laid the blame here at -- what did they say, the Document Production Unit, you know that posts these things, that it's probably not a good day for that team at all. But they're obviously was some miscommunication.

And as you two both know, today was a very unusual day at the Supreme Court where they issued only two opinions. So it's likely this one could have been ready and slotted for today. But whoever pulled it back didn't get the message to everyone apparently.

And as Bloomberg says, at least according to its report, it was up only briefly. And as far as we know, no other news organization had spotted it.

And I have to say, our team and teams across America and anybody who knows how the court works would have been on that Web site this morning looking to see what opinions we're released.

Because, you know, I'm in the courtroom when this happened, but everybody else is looking on there -- their electronic docket to see, what are they revealing, what are they revealing?

And we saw two cases, but Bloomberg was fortunate enough in the news business to have spied this one, but I don't know that anybody else has so far, at least.

BRIANNA KEILAR, CNN HOST: Yes. When you have that many eyes on a site, it's a wonder.

BISKUPIC: Yes.

KEILAR: But someone bound to see it and they did.

BISKUPIC: Yes.

KEILAR: Joan, all right, stand by for us, if you would.

We're joined now by Dr. Kara Cadwallader, who is a physician in Idaho who we have spoken to throughout this case.

Doctor, what is your reaction to -- and we're awaiting -- this is -- the court is calling this a document, but this does appear to be certainly the court poised to allow abortions in medical emergencies in Idaho, according to that document, erroneously posted. What's your reaction to that?

DR. KARA CADWALLADER, MEMBER, IDAHO COALITION FOR SAFE HEALTHCARE: Hi. Thanks for having me.

Well, what -- of course, we're still waiting for the opinion to be officially released. But very excited to hear that this document indicates likely that the court is going to hand the case back down and that the injunction will be back in place.

And beyond all the political reasons, it's incredibly important for pregnant patients here in Idaho, who now will be able to access emergency care appropriately if they are facing a threat to their health and no other life and an abortion is the treatment that is necessary to care for them.

[13:34:54]

So if this opinion holds, it's very good news. It is, however, a very small step. Because, as you mentioned earlier, the case will still be moving through the court. And Idaho women still do not have adequate access to maternity care. We're still in a crisis situation even with his positive decision.

BORIS SANCHEZ, CNN HOST: To your point, Justice Ketanji Brown Jackson appears to have written separately to say that she would not have voted to dismiss this case.

She said, quote, "Today's decision is not a victory for pregnant patients in Idaho. It is delay."

I'm wondering, though, regarding something you said, if you could give us an example of a situation where an abortion is needed but banned currently under Idaho's abortion law.

CADWALLADER: Sure. So a common reason would be that a patient has rupture of their membranes. So the bag of waters ruptures too early in the pregnancy, weeks before the fetus can potentially survive outside of the uterus.

And in that situation, there's very high risk for bleeding and infection to the woman and really negligible chance that this pregnancy can continue on.

And in that situation, the appropriate care would be an abortion, regardless of whether the pregnancy was desired.

And currently, we are unable to do that because the current -- the removal of the EMTALA protection meant that we could only provide that abortion if it was clear that the woman's life was in danger.

So we needed to basically push her to the brink of death, wherever that line is -- and in medicine, that's not a clear line -- before providing appropriate care.

And so when I was on a few weeks ago, what has been happening in the situation, because it's unethical and untenable to do that, is that women are being shipped out of our state for their pregnancy care for a very simple procedure that we can safely performed for them in Idaho but the lack of EMTALA protection no longer let us do it. KEILAR: You're talking about, in some cases, pushing women into a state of sepsis, which becomes very unpredictable, right? I mean, then the line becomes very blurred between whether you can save their lives.

CADWALLADER: That's exactly right. Because it it's not like a light switch where someone's on the brink of death and then we flip a switch and they're fine again.

There's no clear line, as you said, where, if we wait too long, the reason we don't wait is -- (AUDIO PROBLEM)

KEILAR: All right, we're trying -- we, unfortunately, lost her signal there as we're talking to Dr. Cadwallader.

But we thank for very much. This obviously impacts her state and physicians like her so much.

SANCHEZ: Yes. Huge moment of breaking news. The Supreme Court apparently inadvertently posting this ruling document, not yet an opinion, on emergency abortions. We will, of course, keep an eye on this and bring you the very latest as we get it.

Stay with CNN. We're taking a quick break. We'll be right back.

(COMMERCIAL BREAK)

[13:43:00]

KEILAR: All right. We have some breaking news. The Supreme Court mistakenly posted a document on its site that appeared to reveal that it is poised to -- through a ruling, at least temporarily, while this all gets worked out in a lower court, allow abortions in medical emergencies in Idaho.

This is according to what is a copy of what looked like the opinion. But what the court is saying, in a statement they've put out since, they're calling it a document.

And this was obtained by "Bloomberg Law."

SANCHEZ: Yes.

KEILAR: So everyone that basically was on this Web site, checking it out, trying to get these documents so of what rulings we're coming out today. "Bloomberg Law" happened to see this extra one. So this is a really bombshell ruling that is coming about emergency abortions in Idaho.

SANCHEZ: Yes, let's bring in now CNN's chief legal affairs correspondent, Paula Reid.

And, Paula, the distinction here with this decision is that Idaho's law allows for exceptions for abortion in the case of a life- threatening issue for a patient. But this stops short of there being a life-threatening issue for the patient, right? PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Exactly. It's sides

with federal law that would allow abortion to be performed in emergencies that don't necessarily threaten the life of the mother.

But I want to emphasize, this reporting is coming from "Bloomberg Law." They have, at this point, not posted what they say is an opinion on this huge, huge issue.

We have also not confirmed this ourselves. So the Supreme Court has, in a statement, confirmed that what they describe as a document was inadvertently released.

But this would be the second time that a massive abortion-related case would leak out of the Supreme Court before an opinion is officially released, a stunning breach of protocol.

Now, I reached out to several of the stakeholders involved in this case. Of course, the Justice Department argued this case for the federal government. They are declining to comment.

The White House also had a lot at stake here. They've been bracing for a decision in this specific case, calling a potential loss, quote, "devastating."

[13:45:03]

But at this point, they are also declining to comment until the actual opinion is officially released from the court.

Now, the Trump campaign also could weigh in here. We are, of course, just about 36 hours out from this -- this key debate. But they are also unlikely to weigh in here.

Again, a lot of people have been waiting for the Trump immunity decision, other big cases out of the Supreme Court. All eyes have really been on this abortion case for the impact that it could potentially have on the election in November.

And here, the court appearing to side with the Biden administration. Even though they didn't get into the larger constitutional and legal questions, this appears to be a win for the Biden administration based on the merits of what they argued.

But again, we have not seen this opinion. "Bloomberg Law" has not posted it. And while the Supreme Court says that a document was the advertently posted, they said that the official opinion has not been released but will be in due course.

KEILAR: Yes. Such a good point, Paula. Bloomberg has not posted the actual document.

I want to bring you in, Joan Biskupic, to talk about this.

So we haven't seen this, but what Bloomberg is calling it is a copy of the opinion. Then you have the court calling this a document.

But clearly, it is reading, as an opinion, when Bloomberg is looking at it. They're clearly familiar with what an opinion looks like.

What do you make of this? And also, just speak to the timing. Because we've talked about the court adding some days.

We do have an incredibly important debate that is happening tomorrow night between these candidates, Trump and Biden. Abortion is a big issue.

There has been a question about whether they might consider something like that as they are releasing some of blockbuster decisions. And this would certainly be one of those.

BISKUPIC: That's right, Bri. This is probably, of all the cases they have in terms of like social policy dilemmas, this would be the most important. And it's sort of a chapter that's following from two years ago when the justices overturned all constitutional rights to abortion.

So the question is, what kind of abortion access is left in America? And the Biden administration, through the use of this law that dates to 1986, had said that women should at least be able to get emergency care in hospitals that would allow abortions if needed for complications of pregnancy or other health needs.

So that's -- that's kind of the substantive issue. And if the justices had been in a position to rule against the federal government and to completely uphold this Idaho ban that would only allow an abortion if a woman was, you know, about die -- the only exception there is to prevent a woman's death -- it would have certainly reverberated in politics, at tomorrow night's debate and throughout -- throughout the campaign this year.

But one thing I want to mention about what we -- what it appears we know about their order in terms of dismissing this case as improvidently granted, which is what Bloomberg says they're going to do on, and then the writings.

Boris, you cited a quote that Bloomberg apparently found from Justice Ketanji Brown Jackson, who -- it sounds like she agreed with the majority that it should be dismissed, just to go along with that rather than to dissent as Justices Thomas, Gorsuch and Alito did.

But that she had a caution about how this really isn't that much of a victory for women. It does keep the state of play. It does mean that emergency abortions in Idaho could continue while this litigation plays out in lower courts.

But it sounds like, Boris, from what you read from the story, is that she was complaining that American women and physicians and everyone who has a stake in these kinds of dilemmas really needs an answer on the extent of this federal law that's intended to prevent women from being turned away from emergency rooms if they might, for important health reasons, need an abortion.

So she obviously had something to say that might come out when they finally issue this. Just so you guys know, the justices will take the bench tomorrow, Thursday, and on Friday, and likely into next week.

And we'll now see exactly how this played out and who was also writing in this, not just saying, we're just missing the case at this point, but having -- taking issue with that on one side or the other -- Boris and Brianna?

SANCHEZ: Yes. And potentially, will there be any difference between this ruling document and the actual opinion that's issued, even though we haven't seen the ruling document yet.

BISKUPIC: Right.

SANCHEZ: I think it's probably only a matter of time before winds up potentially, again, inadvertently being posted online.

(LAUGHTER)

SANCHEZ: Joan Biskupic, thanks so much for the perspective.

[13:49:55]

We're going to take a quick break. We'll be right back.

(COMMERCIAL BREAK)

SANCHEZ: We are following breaking news out of the Supreme Court, inadvertently posting an abortion ruling document on their Web site, one that sides with the Biden administration over the question of whether patients can have access to abortion in Idaho before getting to the point of a potential risk to the life of the mother.

[13:55:07]

We're joined now by Dr. Kara Cadwallader.

Forgive me for the pronunciation there, Doctor. But I appreciate that we've got the technical issues fixed.

So where does this case head now, if the Supreme Court is basically handing it back to the lower court?

CADWALLADER: Yes. So it goes back to the lower court to proceed. And, unfortunately, even though this is good news, we know that that's now going to plod through the lower courts.

And we will still await the decision of whether our federal law, called EMTALA, protects not just pregnant patients, but everyone in the country, and whether the lower courts will rule, hopefully, that pregnant patients in Idaho have the same access to emergency care that everyone else does.

So as we spoke about earlier, while this is encouraging that the Supreme Court handed it back and has reinstated the injunction, meaning that we can now provide emergency care to pregnant patients appropriately. It still doesn't answer the overall question of whether our pregnant patients in our country deserve the standard of care, both in emergency situations and non-emergency situations.

KEILAR: So as you -- as you wait for that, the core of the issue to be decided is your hope that the court, citing on at least temporarily, allowing this care where it doesn't have to get to the point that a mothers life is in danger, that if her health is in danger, she can receive abortion care.

So that you aren't, as you described, having to Medevac pregnant women, who are miscarrying but have not fully miscarried, out of the state to get their care.

Is your hope that this is a tip of the hand that when the court may actually take up this core issue down the line, that this may be where they fall on it?

CADWALLADER: Why, I sure hope so. I -- it's been a hard court to predict as I think you all know, who follow them so closely.

And we have so many restrictions, not just in Idaho, but in many states that make pregnancy care much harder to obtain, especially for our folks who are -- already have difficult access to care.

So we are hoping that there will be a final ruling in this case that says that EMTALA, our federal protections, do, indeed, provide protections for pregnant women in all emergency situations, just like they do with all other Americans.

And then, we still have many battles to fight, right? Because we still, in Idaho and other states, have an extremely restrictive abortion law that essentially is a complete ban, except for emergency situations.

And we know that delaying access to abortion care in our country has worse outcomes for patients, more maternal deaths, and so we have a lot of work to do, even if this decision does support emergency care for all.

KEILAR: All right. Dr. Kara Cadwallader, thank you so much for being with us.

As we are following our breaking news. The U.S. Supreme Court appearing poised to allow emergency abortions in Idaho, at least temporarily, as the core of this issue works its way through the courts.

This coming, in just a kind of a jaw-dropping way, a document accidentally being posted online by the Supreme Court, then taken down. But "Bloomberg Law" got their hands on it and we are following their reporting here.

We'll have more just ahead. Stay with us.

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