How a draft opinion on Idaho's abortion ban was mistakenly posted by the Supreme Court

The Supreme Court handed down two opinions Wednesday but left some of the most politically fraught cases for the final days of its term. One left undecided for now is focused on abortion and a ban in Idaho. But we may have clues about how the justices will decide the case after a document was mistakenly posted. John Yang reports on how the mistake happened and what it could mean for the court.

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Geoff Bennett: The U.S. Supreme Court handed down two opinions today, but has left some of the most politically fraught cases for the final few days of its term.

One of those left undecided for now is focused on abortion and the future of a strict ban in Idaho.

Amna Nawaz: We may have clues about how the justices will decide the case after a document was mistakenly posted to the court Web site before being removed.

The copy of the yet-to-be-finalized opinion suggests a 6-3 decision that would allow hospitals in the state to perform abortions to protect the life of the patient. But it also leaves the heart of the case unresolved, as the court appears poised to say the plaintiffs lack standing.

John Yang is here now to explain how the mistake happened and what it could mean for the court.

So, John, let’s start with that.

A document is posted briefly on the Web site and then removed. What do we know about what happened?

John Yang: Well, unlike the case that overturned Roe v. Wade two years ago, this does not appear to be a leak. It appears to be a case of what they call fat thumbs.

Patricia McCabe, the court spokesperson, issued a statement saying: “The court’s Publications Unit inadvertently and briefly uploaded a document to the court’s Web site. The court’s opinion in these cases will be issued in due course.”

Amna Nawaz: And it got a lot of attention, of course, because it is about abortion case in Idaho, a law banning essentially almost all abortions, imposing a penalty of up to five years in prison for doctors who perform them.

What did the documents say about the case?

John Yang: Well, first of all, the caveat, we don’t know if this is a final draft. We don’t know how many reiterations there may be before it’s formally released.

But what Bloomberg posted says that the court is saying essentially, this case is not ready for us. So we’re sending it back. We’re going to reinstate the district court’s injunction, blocking temporarily the Idaho law pending appeal. And we’re sending it back to that court for a trial, where they can hear evidence on both sides.

This is a — it was a 6-3 decision. The three most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, all dissented. And one of the liberal justices, Justice Ketanji Brown Jackson, had a little bit of a dissent. She said she thought the court ought to go ahead and decide this now.

She wrote: “While this court dawdles and the country waits, pregnant people experiencing medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.”

We should note, this is the second time this month that the Supreme Court has avoided, sidestepped an abortion case. Two weeks ago, they avoided a definitive decision the availability of mifepristone by saying that the plaintiffs in those cases did not have standing.

Amna Nawaz: So we should underscore here the ruling has not been issued here

But does the document tell us how the case could be decided?

John Yang: It’s hard to tell. The three liberal justices all sided with the government. The Biden administration said that the Idaho law should be overturned. The three dissenters, the most conservative of the three justices, said the Idaho law is just fine and ought to be allowed to stay.

We don’t know about the other three justices, the chief justice, John Roberts, Neil — I’m sorry — Pat — Brett Kavanaugh and Amy Coney Barrett. Their positions aren’t clear. So they’re the ones to watch when this case comes back to the Supreme Court, as it almost surely will.

Amna Nawaz: You will be watching and we will be following. Thank you for adding clarity to a rather confusing day on the Supreme Court.

John Yang, good to see you.

John Yang: Thanks.