‘Very embarrassing’: Supreme Court inadvertently posts document on pending Idaho abortion case

Hi there, everyone. It's 4:00 in the East. Another day, another issue surrounding the United States Supreme Court's transparency and confidence. The court, which still has decisions on a dozen argued case yet to be announced this term, today inadvertently posted online a document related to an abortion case, which was obtained by Bloomberg Law. A Supreme Court spokeswoman confirmed that the document was quote, inadvertently and briefly uploaded, but noted that the ruling has not been released and would be in due course. NBC News has not independently verified the document. It is not known if it is a draft decision, the actual decision or neither of those things. The document has since been removed from its website, but what the document did signal was that the court appears set to allow emergency room doctors in the state of Idaho to perform life saving abortions, which they are unable to do under that state's Defense of Life Act that passed in August of 2022. The law is one of the most extreme abortion bans in the country. It prohibits nearly all abortions and does not allow for exceptions when the life of the mother is at risk. While this potential ruling by the Supreme Court sounds and feels like good news, like a win for abortion rights advocates, in actuality it amounts to a punt by the highest court. It simply means that a ruling from the lower court, which had paused Idaho's ban on abortion health care, would be reinstated and that the court did not rule on any of the merits of this case. Justice Katanji Brown Jackson makes all of these points in writing this quote. Today's decision is not a victory for pregnant patients in Idaho. It is delay. While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position as their doctors are kept in the dark about what the law requires now. This comes just one day ahead of the 1st 2024 presidential debate, as President Joe Biden has made the protection of women's reproductive freedom a centerpiece of his campaign. Decades of progress shattered just because the last guy got four years in the White House. You know what'll happen if he gets another four. American Republicans row is just the beginning. We're going to try to ban the right to choose nationwide for coming for IVF and birth control next, but against extremism. Send me back to the White House and I'll fight like Calvary store Roe V. Wade and protect American Freedom Now. In addition to the impact on abortion rights here in America, the temporary posting of the document on the Supreme Court's website also raises questions about why a second abortion related case after Dobbs reached the public inadvertently, it seems before the court officially released it, as well as what other decisions from the court that are done and ready are just sitting there. It's where we start the hour with some of our most favorite reporters and friends. Senior editor for Slate, host of the Amicus podcast, Dahlia Lithwick is here. Plus the president of Reproductive Freedom for All mini Tim Raju is here. MSNBC legal analyst NYU law professor Melissa Murray is back and former Obama White House policy director MSNBC medical contributor Dr. Kavita Patel is here. The four of you could and are changing the world. It's an honor to have all of you here with us. I mean, Dahlia, help me. Let's sift through what this is what we think happened. I I mean, I think that this, unlike the Dobbs leak, was probably a kind of a technical screw up that happened. Somebody uploaded an opinion that was not clearly not ready by its appearance to be sort of released today, and somebody uploaded it onto the court website. And the good people at Bloomberg Law said, hey, we see it because all of us are busy going refresh, refresh, refresh to see what else is coming. And so we've got a draft opinion. But I think this is more in the bucket of if the Supreme Court behaved like an ordinary transparent institution, embarrassing things like this wouldn't happen. And if they happen when they get corrected quickly, then in the bucket of the catastrophic Dubs leak. It's still very embarrassing. Yeah. I mean, I guess the problem with an institution whose public approval is plunging farther and faster than any other institution in civic life is the inability to own a mistake. I mean, why not? I mean, and it. And if it's ready, why not release it today, Dalia? I mean, it is hard not to think that if it was ready, it should be released today. We're always told that there's no partisan valence or political valence to when cases come down. We're told, in fact, we're scolded, that it's all just, you know, they come down when they're ready. So this certainly suggests either that someone is still drafting something, in which case it wasn't ready, or that, you know, the court is a little bit more political in its release of cases than any of us thought. But we're not going to know. And again, the fact that the court just sort of turned out the lights at 11:00 and said we'll figure it out tomorrow really, I think speaks to this, again, imperial view of itself as beyond reproach. I'm sure we're minutes away from hearing that. It's the press's fault. Again, Predictable, but depressing, and certainly not helpful to the court. Let's deal with the document that was posted. Today's document has this from Samuel Alito in a dissent. Obviously, the right to refuse medical treatment without consent does not entail the right to demand treatment. That is prohibited by law. Cancer patients have the right to refuse treatment that their doctors recommend, but they do not have a right to obtain whatever treatment they want, such as the frustration of a drug that cannot legally be used in the country granting terminal patients the right to try experimental drugs. Likewise here, a woman's right to withhold consent to treatment related to her pregnancy does not mean that she can demand an abortion. I mean, doctor, doctor Patel, there is still this delusion that women are out there demanding abortions like they demand, you know, Spanx undergarments or Manila Blonics. It's it's a, it's a view obviously seemingly shared in the household. It's wrapped in the disinformation that's been peddled by the extreme wing of the pro-life movement for decades. It's incredibly out of step with American public opinion, and it's incredibly out of step with anything that happens inside a doctor's office between a patient and a doctor. Tell me what you think of of what we're seeing in this document. We, again, don't know if this is a final opinion. Yeah. Nicole, what might be easier is to actually tell, tell people what's happening on the ground. So a pregnant patient might come to the emergency room or their doctor's office for a variety of reasons, high blood pressure, bleeding, or one of the most common things in the emergency room. It happened 54 times at Saint Luke's Boise, ID hospital last year. Is that a patient's water breaks before a fetus can live outside of the womb? Around or before 20 to 22 weeks of gestation. After the water breaks, there's usually a fetal heartbeat, but you can have infection quickly spread. You and I have talked about sepsis, which is life threatening without abandoned place. What normally would happen is the doctor would likely recommend termination of the pregnancy to avoid sepsis and the death or potential death of the mother and the fetus. With this ban. What is happening today is that specialists are having to make a judgement call, having to think about talking to the administration, and in many cases having to send a patient out of state. Keep in mind, the nearest place they can send them to is Portland OR Seattle, and that's about 8 hours away that can freely offer medical care. We're not talking about offering abortions on demand. We're talking about medical care. So those comments by Justice Alito and, and it just makes my blood boil because we're not talking about on demand healthcare. Making that analogy to cancer is disrespectful to cancer patients and to people. And what we're really talking about is just access to care. And that's why I think you saw that outrage in Justice Jackson's statement, which is only the tip of the iceberg of what's happening on the ground. Yeah. Minnie, let me read more from, again, this document. In this document, this is from Justice Katanji Brown Jackson, who wrote a concurring and a dissenting opinion quote. We cannot simply wind back the clock to how things were before the court injected itself into this matter. Our intervention has already distorted this litigation process. We permitted Idaho's law to go into effect by staying the district court's injunction in the 1st place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little too late for the court to take a Mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes, the court has made this bed so now it must lie in it. Wow, could not agree with her more. I mean look this the court had a chance to do the right thing here. The court had a chance to resolve this. You know, this case was all about preemption. You know, the Biden administration really trying to figure out how do we save women's lives in states with abortion bans? How do we provide and make sure they have the critical care, life saving care they need? In the cases that Doctor Patel just outlined, the court could have done something about it. Instead, it's completely unconscionable that they've punted this. It is in some ways probably a better outcome than what many of us expect from this court, but it is a short term win. Ultimately, what we need to see happen is abortion bans lifted. You know, the Biden administration is doing everything they can in the margins to protect women's lives, but it is just simply not enough. This court is not to be trusted. We have to win a federal trifecta to re establish a federal right to abortion. It is the only solution. It is dangerous to have to continue to go to this court and this court has not shown the majority of this court for any willingness to do the right thing. This is so similar to the medication abortion situation as well. You know, where they just dismissed the case on standing. But Judge Kavanaugh, Justice Kavanaugh laid out how to challenge medical medication abortion the next time. They are just not willing to make the hard decisions after the devastation that they created in overturning Roe.