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tv   Justices Hear Case on Mississippi Abortion Law  CSPAN  December 6, 2021 1:08pm-3:00pm EST

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c-span3, instagram's ceo testifies before the senate commerce, science and transportation subcommittee on his platform's efforts to protect kids online. watch this week on the c-span networks, or you can watch our full coverage on c-span now, our new mobile video app. also head over to for scheduling information or stream video live or on demand anytime. c-span, your unfiltered view of government. >> in the u.s. supreme court case d the obb v. jackson -- dobb v. jackson, oral arguments were heard banning abortion after 15 weeks of pregnancy. >> the honorable, the chief justice the and the associate justices of the supreme court of
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the united states. o yea, o yea, o yea, all persons having business before honorable, the supreme court of united states, are admonished to craw near and give their the attention for the court is now sitting. god save the united states and honorable court. >> we will hear argument this morning many case 191392, dobbs v. jackson women's health organization. general stewart? >> mr. chief justice and may it please the court, roe very wade and -- roe v. wade haunts our country. they've damaged o the democratic process, they've poisoned the law, they've choked off compromise. for 50 years they've kept this court at the center of a political battle that it can never resolve, and they stand
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alone are. nowhere else does this court recognize a right to end a human life. consider this case. the mississippi law here prohibits abortions after 15 weeks. the law includes robust exception for a woman's life and health. but thehe courts below struck te law down. it didn't matter that the law -- when an unborn child is uncondition by human, when risks to women -- undeniably human. the lower courts held that because the law prohibits abortions before viability, it is the unconstitutional no matter what. roe and casey's core holding according to those the courts that people can protect an unborn girl's life when she just barely can survive outside the womb but not any the earlier when she needs a little more help. that is the world under roe and casey. that is not world the constitution promises. on hard issue after hard issue,
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people make this country work. abortion is a hard issue. it demands the best from all of us, not a judgment by just a few of us. when an issue affects everyone and when the constitution does not take sides on it, it wrongs to the people. it belongs to the people. roe and casey have failed the, but the people -- if given the chance -- will succeed. this court should overrule roe and casey and uphold state's law. i welcome the court's questions. >> general stewart, you focus on the right to abortion, but our jurisprudence seems to the focus on, in casey, autonomy; in roe, privacy. does it make a difference that that we focus on privacy or autonomy or more specifically on abortion? >> i think whichever one of
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those you're focusingr on, your honor,ou particularly if you're focusing on the right to abortion, each of those starts to become a step removed for what's provided in the constitution. yes, the constitution does provide, protect certain aspects of privacy, of autonomy and the like, but as this court said, going directly from general concepts of awe onmy, of privacy, of bodily integrity to the right is not how we traditionally, this court traditionally does do process analysis. i think it just confirms whichever one of those you look at, your honor, a right to abortion is not grounded in the text. it's grounded on abstract concepts that this court has rejected in other contexts -- >> you say that this is only constitutional right that involves the taking of a life. what difference does that make in your analysis? >> sure, your honor. i think it makes a number of differences. one, -- i'd mention two in particular. one is it really does mark out
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the unbelievably profound ramifications of this area which in many other areas -- assisted suicide, a whole host of areas that are important to dignity, autonomy, free come and important to matters of conscience -- it americas it ou as one of -- marks it out as one of areas where this court has taken it to the people. it just, i think, marks off, justice thomas, how problematic and unusual and how much of a break the court's a abortion with jurisprudence is from those other cases. >> if we don't overrule casey or roe, do you have a standard that you propose other than the viability standard? >> it would be, your honor, a clarified version of the uncue burden standard. undue burden. ie would emphasize, as i think your honor's alluding to, the standard other than the rational basis rule, practicable, predictable jurisprudence that
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put matters back with the people. i think anything heightened here is going to be problematic. i would say if the court were not inclined to overrule casey, the choice would be undue burden standard untethered from any bright line viability rule. >> i'd like to go to the different topic back l to casey. >> yes, your honor. >> i assume you read casey thoroughly. >> yes, your honor. >> there are two parts. one is a -- [inaudible] put that that to the side. the second is an opinion for the court, not for three people, but for the court. in that second part, it's about what stare decisis principles should be used to overrule a case like roe. and they say roe's special. what's special about it? they say it's rare. hay call it a watershed.
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why? because the country is divided? because feelings run high? and yet country, for better or for worse, decided to resolve their differences. by this court laying down a constitutional principle, in this case, women's choice. that's what makes it rare. that's not what i'm asking you about. i want your reaction to what they say follows from that. what the court said follows from that is that it should be more -- to overrule a prior case. far more unwilling we should be whether that case is right or wrong than ordinary case. and why? well, there are a lot of words there, but i'll give you about 10 or 20. there will be inevitable efforts to overturn the it. of course there the will.
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feelings w run high. and it is particularly important to show what we do in overturning the case is grounded in principle and not social pressure, not political pressure. only, quote, the most convincing justification can show that a later decision overruling, if that's what we did, is anything but submitting to political pressures or members. and that is an unjustified repudiation of principles on which the court stakes its authority. and then there are two sentences i'd like to read you. they say they really mean this, the court. not just three. to overrule under fire in the absence of the most compelling reason, to re-examine a watershed decision would subvert the court's legitimacy beyond any serious question.
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and the last sentence after they quote potter stuart on the same point, they say overruling unnecessarily and under pressure would lead to condemnation court's loss of confidence in the jewish kish thely -- judiciary, the t ability of the court to exercise the judicial power and to function as the supreme court of a nation dedicated to the rule of law. now, that's opinion of the court. all right. and it's about stare decisis and how we approach it, and i hope everybody reads this. it's's 500 u.s. 854869. what coto you say to that? >> sure, justice breyer. i would city a couple things. -- i say a couple things. i would say we have very closely gone through the factors9 that elthe casey court itself went through in starry stare decisis.
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we now have 30 years in the wake of casey to see what casey has cone and what it hasn't cone -- >> it's caused some bad things in the ideas of some people and some good things in the eyes of some people. >> your honor -- >> gfd. >> i'm sorry, your honor. what i'd emphasize, you're horn -- your honor, i would not say it was the people that called this court to end the controversy. the people, you know, many, many people vocally really just wanted to have the matter returned too them so that they could the decide it locally, dkeel with it the way they thought best and at leastt havea fighting chance to have their view prevail which was not given to message under roe and, as a result, under cay sis. and on starry e the sigh sis, as i said, the last 30 years workability, developments in the law, factual developments that statements can't account for, i think the workability, the uncue burden standard alone concern undue burden saturday alone, many problems. casey that pails.
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and i'd also -- casey fails. i'd also emphasize that the casey was not, was not a great example of simply letting precedent stand. lit recaps rosaries -- [inaudible] the court's most important abortion decisionings. it adopted a new standard unknown to other parts of the law. those are not the hallmarks of they fail and under -- >> okay. i take it that your answer is, yes, you accept way the special rule, the the rule for the rare watershed, the starry dethe sigh sis principle for deciding whether to overturn the such a case as roe. you accept that and you think hait's met. would say, yes, in justice breyer. here what is i would emphasize. i do think, particularly when
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casey looked outward and looked to what it saw as pressure, there were pressure on all sides. this is a hot, difficult issue for everyone. that's why it belongs to the people. i think the conclusion the court drew from that, it couldn't provide a good example enough, it would look on prince. those conclusions with respect, justice breyer, mistaken. the last 30 years has not seen calming than that, different than the court's other defianc death as death. yet, the literature is filled with episodes of people who are completely and utterly brain dead, responding to stimuli. there's about 40% of dead people who if you touch their feet, the foot will recoil. there are spontaneous acts by dead brain people. so i don't think that a response
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to -- by a fetus necessarily proves that there's a sensation of pain or that there's consciousness. so i go back to my question of, what has changed in science to show that the viability line is not a real line? that a fet defiance a brain death as death. yet, the literature is filled with episodes of people who are completely and utterly brain dead, responding to stimuli. there's about 40% of dead people who if you touch their feet, the foot will recoil. there are spontaneous acts by dead brain people. so i don't think that a response
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to -- by a fetus necessarily proves that there's a sensation of pain or that there's consciousness. so i go back to my question of, what has changed in science to show that the viability line is not a real line? that a fet defiance a brain death as death. yet, the literature is filled with episodes of people who are completely and utterly brain dead, responding to stimuli. there's about 40% of dead people who if you touch their feet, the foot will recoil. there are spontaneous acts by dead brain people. so i don't think that a response
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to -- by a fetus necessarily proves that there's a sensation of pain or that there's consciousness. so i go back to my question of, what has changed inor, the concern about appearing political makes it imperative that the court reach a decision well grounded in the constitu or, the concern about appearing political makes it imperative that the court reach a decision well grounded in the constitution, in text, structure, history and tradition, that carefully goes through the factors -- >> casey did that. >> no, it didn't -- >> with every one of them. you think it did it wrong. that's your belief. but casey did that. >> well -- >> you haven't added much to the discussion in your papers as to the errors that casey made,
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other than i disagree with casey. >> well, i -- >> justice sotomayor, maybe i could highlight casey gave one paragraph to the workability of roe. it then continued the undue burden standard. it gave about three paragraphs, if memory serves, to reliance which doesn't account for the last 30 years and the changes that have occurred since casey. it gave a brief factual view to things that have changed since roe. those, of course, are not going to take account of the last 30 years of advancements many -- in medicine, science, all those sorts of things. >> what are advancements many medicine? >> i think it'snc an advancement in knowledge and concerns about such things as fetal pain, what we know the child is doing and looks like -- >> you know, in regular cases courts decide whether science fits the call dalbert standard.
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obviously, under that standard the gross minority of people, the minority of doctors who believe fetal pain exists before 24, 25 weeks, it's a huge, minority and one not well founded in science at all. so i don't see how that really adds anything to the discussion, that a small fringe of doctors believea that pain could be experienced before a or cortex is formed doesn't mean that there's been that much of a difference since casey. >> we point it out as an example, yourr honor, of where roe and casey improperly preclude states from taking into account these things, and they should be able to be concerned about fact of an unborn life being poked and hen recoiling -- >> sir, i mow what it said about
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viability -- i know what it said about viability in roe, but was viability an issue in the case? i knowoo it wasn't brief or argued. >> it was, it was not in issue certainly way it is in issue here, your honor. i think it was, to the extent that the court had to reaffirm roe, the way to read that is something other thanking dicta -- >> i'm sorry, was it an issue in the roe. in roe. i'm sorry, your honor. my understanding is, no, the law there was, didn't have a viability tag. that was inserted -- >> in fact, if i remember correctly, and it's an unfortunate source, but it's there, in his papers justice blackman said viability line was actually, was dicta. and presumably he had some insight on the question. >> i think, and i'd asked, your honor, justice blackman, i think as well in his papers, pointed
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oute arbitrary nature of it and the line-drawing problem. >> and then in casey, casey said that was a core principle in roe, viability. after tossing out the trimester which many people thought was the core principle, but was viability an issue in casey? >> i don't think it was squarely at issue, your honor. oragain, it's a little hard noto take the court at its word when it emphasized that viability, the viability is central part of roe's holding and saying that it is reaffirming that. so we we had to take that as it sands, but the court is not -- stands, but court is not, it did not face a law like this, certainly, mr. chief justice. >> can i finish my inquiry? >> of course, justice sotomayor. >> virtually every state defines brain death as dead, yet the literature's filled of episodes of people who are completely and
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utterly brain dead responding to stimuli. there's about 40% of dead people who if you touch their feet, foot will recoil. there are respond often yous acts by kid brain -- spontaneous acts by dead brain people. so i don't think that a response to, by a fetus necessarily proves that there's a sensation of pain or that there's consciousness. so i go back to my question of what has changed in science to show that the viability line is not a real line? that a fetus cannot survive? and i think that's what both courts below said, that you had no experts say that there is any
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viability before 23-24 months. >> and what i'd say, justice sotomayor,r, the fundamental problem with viability is not something that rests on viability so much, not tethered to anything inng the constitutin in history or tradition. it's that quintessentially legislative line, a legislature could hi that viability makes place as a sense to draw the line, but it's quite reasonable for -- >> counsel, there's so much that's not in the constitution including the fact that we have the last word. marbury v. madison, there is not anything in the constitution that says that the court, the supreme court, is the last word on what constitution the means. total novel at that time. and yet what court did was reasoned from the c structure of the constitution that that's what was intended. and here in casey and in roe the
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court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. we recognize them in terms of the religion parents will teach their children, we recognized it in their ability to educate at home if they choose. they just have to educate them. we have recognized that sense of privacy in people's choices about whether to the use contraception or not. we recognize it in their right to choose who they're going to marry. i fear none of those things are written in the constitution. they have all, like marbury v. madison, been discerned from the structure of the constitution. why do we now say that somehow
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roe v. casey -- roe and casey are so unusual that they must be overturned? >> well, your -- justice sotomayor, i would emphasize two things. when you're going beyond constitution, this court has looked closely -- >> no. what i'm saying is they didn't go beyonday the constitution. >> your honor, they did not deduce those from the structure sof the constitution. hay pointed to the 14th amendment and reasonedded that privacy in roe, autonomy and similar values in the casey led to ther a right to abortion. that's not how this court traditionally because things including in the cases your honor ran through. in here those decisively reject the proposition that statements cannot if legislate comprehensively on abortion before, after viability and all aa throughout. so it's history and tradition, your honor. and i would also add, your honor, thatr those decisions, a great many of them draw, you know, not just draw from text, history and tradition, but they
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draw often clear lines, very workable have not led to the many negative stare decisis factors that we identify here. [inaudible conversations] >> go ahead. [laughter] >> would a decision in your favor call any of the questions, any of cases, sorry, that justice sotomayor identified into question? >> no, your honor. i think for a couple reasons, first of all, i think vast round of thoseho cases and some mentioned from time to time, think of griswold, lawrence, these are cases that draw clear rules, can't been contraception, can't been intimate relations, clear rules that have engenderedded strong reliance interests and that have not producedel negative consequences or all the other negative starry dethell ice sis -- stare decisis considerations we pointed out. also none of them involve the purposeful termination of a human life.
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so those two features, your honor, puts all of those safely out of reach if the court overrules here. we might be making progress in the part that i read, you know, of casey. >> yes, your honor. >> they think back 150 years, maybe now can go back 200, they think there have only been two cases what they call the watershed, and special tough overruling rules apply. you want this to be the third? or do you think there were more? if so, what were they? >> well, your honor, i think there's quite a bit of difference. the question is never is it bad to overrule, period. >> the reason i'm asking you to think in near terms, there were two they mentioned. they don't want casey or roe to be the third. now in your opinion, you just answered justice barrett or --
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hey all these are not rising to that level. okay. >> right. >> are there any that do rise to the level in your opinion? >> i think -- and i'm not sure that i necessarily agree with the watershed characterization, your honor -- i can't think of another that hits the radar, but i would emphasize that a problem here is we're dealing with a right that doesn't have a basis in constitutional text or again very much in conflict with those values, justice breyer. >> i'm not sure how your answer makes any sense. all of those other cases, griswold, lawrence, they all rely on substantive due process. you're saying there's no substantive due process in the constitution. so they're just as wrong, according to your theater. >> no, your honor. we're comfortable with washington versus gluxburg and analyzes substantive due process and looks at text history, history and tradition, to discipline the inquiry --
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>> i mean there was no history of same-sex marriage. >> and i think the court -- the court pointed out, look, when we were facing loving versus -- >> i'm not trying to argue we should overturn those cases. i just think you're dissimulating when you say any ruling here wouldn't have an affect on those. >> respectfully, that's -- >> you think no -- that no state is going to think otherwise? that no people in the population aren't going to challenge those cases in court? >> i mean, your honor, we'll always have a diversity of views -- >> that's the point. that's the -- >> that's our society. >> that's the point. >> that there's a diversity of views and people can vigorously debate and -- >> and that's what we're doing under undue burden but haven't on the viability line. >> neither has worked well. the viability line discounts and
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disregards state interests and the undue burden standard has all of the problems -- >> how is your interest anything but a religious view? >> um -- >> the issue of when life begins has been hotly debated by philosophers since the beginning of time. it's still debated in religions. so when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it? >> respectfully -- >> it assumes that a fetus is life at -- when? you're not drawing -- when do you suggest we begin that life? >> your >> your honor, aside from -- >> putting it aside from religion. >> i'll try try to -- i think there might be more than one question.
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i'll comy best -- cothe my best, justice the sotomayor. we are talking about a human organism, and i think philosophical questions your honor mentioned, all those reasons they've been debated, they're important, those are all reasons to return this to the people because people should get to the debate these hard issues, and this court does not in that kind -- >> so when because the life of a woman and putting her at risk enter the calculus? meaning, right now forcing women who are poor -- and that's 75% of the population and much higher percentage of those women in mississippi -- who elect abortions before viability, they are put at a tremendously greater risk of medical complications entering their life, 14 times greater to give birth to the a child full term
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than it is to have an abortion before viability. and now the state is saying to these women we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what? >> sure, your honor. i think to answer the question i think you led with and then i think you expanded on but still on theti same issue is to when does a woman's interest enter, as far as we're concerned, it's there the entire time. our point is that all of interests are there the entire time, andin roe and casey improperly prevent states from weighing those interests however they think best. we're not saying -- >> are there bioethicists who take position that the rights of
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personhood begin at inception or at some point other than viability? >> i believe so. i mean, i think there's a wide array, i mean, of people of kind of all different views and no-faith views who would reasonably have that view, your honor. it's not tied to religious view, and were it otherwise, i don't think this issue would run right into some of its religious jurisprudence. >> justice breyer started with stare decisis, an important principle in any case. and here for the reasons that casey mentioned, especially so. to prevent people from thinking that this court is a political institution that will go back and forth depending on what part ofng the public yells loudest ad preventing people from thinking that the court will are go back
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and forth depending on changes to the court's membership. finish and what strikes me about this case -- and you come here very honestly saying, you know, we want you to discard the entire setup, and then even if you don't cothat, we want you to discard or the viability line which you've acknowledged again today casey says is the heart, the central principle of roe. and so usually there has on a justification, a strong justification in a case like this beyond the fact that you think case is wrong. and i guess what strikes me when i look at this case is that, you know, not much has changed since roe and casey. people think the it's right or wrong based on the things that they have always thought service right and wrong for.
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so rationale behind those cases has something to do with the autonomy and the free come a the and the kill anity concern freedom and the dig my i of women to pursue their lives as they wish, to protect their bodily integrity, to make decisions that are the most fundamental to course of their lives. and always in those cases there was the an understanding that there were important interests on the orr side in protecting -- on the other side in protecting life or protecting the potential for life whether people saw it one way or the other way and that there was a difficult question here and a balance to be made. made. i mean it strikes me that some people think those decisions made the right balance and some people thought they made the wrong balance, but in the end we are in the same exact place as we were then.
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except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation, than if you had come in 50 years ago and made the same arguments. i guess i just wanted to hear you react to that. >> of course, justice kagan, thank you. i would emphasize a couple things, your honor. the fact that the fact that so much time the has passed, let's say nothing had changed. that's not a point in roe and casey's favor. he was no basis in the constitution. they continue a right that purposefully leads to the termination of now millions of human lives. nothing would change, they'd be just as bad as they were 30 years ago, 50 years ago, and now we just have decades of damage,
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and we have a situation where nearly 30 years after casey the court, unfortunately, divides over what casey -- the lead case in the abortion area -- even means. the lower courts are left not knowing what to do, and i think kind of a fundamental problem here is, i think as justice gore such mentioned, emphasized in his opinion in june medical, the problem is constitution doesn't give them an answerou to this. but if the matter's returned to thend people, they can compromie and reach different solutions. we don't do that, we're just going to have all this damage, and at some point it's appropriate for this court to say enough as it has in great overrules in brown and other cases. justice harlan had it right in dissent in plessy when he recognized that, you know, all are equal, and similarly here we
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should be able to recognize we hi this one slightly outweigh, this one slightly outweighs or o there's some balance to be crh here. if the court doesn't cothat, justice kagan, it's just going to be continued damage concern i apologize, mr. chief justice, i've gone over. >> no, that's all right. just a few -- well, questions. and first gets back to the issue of viability. youe know, in your petition the for cert, your first question and the only one on which we granted review was whether all pre-viability prohibitions on elective abortions are unconstitutional. and then i think it's fair to say that a when you got to brief on the matters, you kind of shifted gears and talked a lot more about whether or not roe and casey should be overruled. and i wanted to give you a chance to explain that. >> sure, your honor. so a couple points. you know, at the petition stage we, of course, identified for
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the court three questions, we emphasized, hey, this is the important, only this court can resolve it. we emphasized, i believe it was five times, that court was going to at the least going to need to reevaluate its precedent and get rid of a viability line or any suggestion of a viability line. we added, however, and we had to take account of reality that this argument has not fared well in the lower courts. it's lost in every court of appeals. so, you know, we raised issue in in i in addition. we, presented every argument as we signaled we would present the full-blown constitutional merits argument with that fundamental question. so i'd emphasize that, your honor. it was the kind of shift from cert stage to merit stage. that question fairly includes what is -- >> well, it fairly includes the broader arguments you've raised, i'm not suggesting that. but on the other hand, it presumably included the viability question as well because that's what you talked
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about in that one sentence. >> and we've addressed that as welsh your honor. what -- as well, your honor. merits argument of v.a.d the city of -- validity of roe and casey, is there a viability rule based in the constitution, those are not that complicated or lengthy. the harder questions are, you know, should the court overrule and take that momentous the step, and that's why we devote a lot of space to that very important issue. we respect stare decisis and have walked through all those points. again, focusing on the question and presenting our best arguments for that, that's what we've done, mr. chief justice. >> on stare decisis, i think the first issue you looked at is whether or not decision at issue was wrongly decided. i actually never quite understood how you evaluate that. is it wrongly decided based on the legal principles and doctrine when it was decides or ins retrospect? because roe, there are a lot of cases around the time of roe, not of that magnitude, but the
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same type of analysis that went through exactly the sorts of things we today the would say were erroneous, but cowe look at it from today -- if we look at it from today's perspective, it's going to be a long list of cases that we're going to say were wrongly decided. >> well, i'd say, mr. chief justice, that you look -- but you can look both was it wrong at the time, has it been unmasked as wrong by new understandings, new knowledge and any developments. but i don't think, i think my colloquy with justice barrett anticipated, the court won't have to be looking at many other areasan because this is an area that has a uniquely problematic set of starry stare decisis considerations, once controversial areas are quite settled, clear rules and don't have those considerations against them. so really by overruling roe and casey, the court won't have to go could beon that road, and a t of those decisions are quite readily ground bl in history,
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tradition and the court's traditional factors, your honor. justice thomas? justicee breyer? anyone? justice society major? kagan? >> i just wanted to get your quick sense of how your intermediate positions would work, you know, if basically the viability line was discarded and undue burden became standard or overall, a standard that according to you is an up clear one what -- unclear one, what that would leave the court with going forward. you know, i'm just sort of thinking about the great variety of regulations that states could pass. so whether one is 15 weeks and one is 12 the weeks and one is 9 weeks or variation across a wide variety of other dimensions, what would that look like coming to the court? how would we, how do you think we should, we would be able to deal with that this or how would
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you counsel us to deal with that the if the court were to go down that road? >> well, i think this is -- i will answer your question, but part of why we counseled to overrule full scale is that's the only way to bet rid of a number of the a problems that i think your honor's alluding to. and that's when you have the uncue burden standard, it's a very hard standard to apply. it's not objective. the court looks to the record in each case and what's going on. inin casey itself, under this record this is not an undue burden. you couldn't say necessarily a certain number of weeks would be an undue burden but would be okay in another place. but, again, that is the world we have under casey. it would be t carrying forward with those features which -- i've answered your question, but i think q that's one of the very strong reasons to just go all the way and overrule roe and casey, your honor.
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>> justice gorsuch? justice kavanaugh? >> i want to be clear about what you're arguing and not arguing. >> yes. >> and to be clear, you're not arguing that the court somehow has authority to itself prohibit abortion or that this court has authority to order the states to prohibit abortions, if i understand it correct many. >> correct, your honor. >> i understand that you're arguing the constitution's silent and, therefore, neutral on the question of abortion? in other words, that the constitution's i neither pro-lie nor pro-choice on question of the issuebut leaves for the people of the states or perhaps congress to resolve in the democratic process. is that accurate? >> right. we're saying it's t left to the people, your honor. >> so for the, if you were to prevail, the states, majority of states or states still could or and presumably would continue to freely allow abortion many states,, some states would be able to do that even if you
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prevail under your view, is that correct? >> u that's consistent with our view, your honor. it's one thatvi allows all interests to have full voice and certain states i don't think anybody would be moving to change their laws in a more restrictive direction. >> thank you. >> thankin you, your honor. >> justice barrett? >> general, i have a question that is a little bit of a follow-up to one justice breyer wasti asking you. that's about stare decisis, and i think a lot of the colloquy you've had with all of us have been about the benefits of starry stare decisis which i don't think anyone kiss piewpts. there are -- the disputes. you know, we have plessy, brown, we have browers v. hardwick to lawrence. but in thinking about stare decisis which is obviously core of this case, how should we be thinking about it? i mean, justice breyer pointed out that in casey and in some
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respects, well, it was a current conception of stare decisis insofar as it very explicitly took into account public reaction, is that a factor you accept? or are you arguing we should minimize that factor, and is there a different set of rules and casey identified brown and west coast hotel as watershed decisions, but is there a kiss tunt set of -- distinct set of applicationsesome. >> i don't think there should be a distinct set of considerations there, your honor. i think what i emphasize and just to make sure, on the kind of legitimacy, court looking outward, i think casey was unusual in thatt regard. i think it was a mistake, and i think it's the something that is kind of in conflict with this court's structure and approach as an independent branch looking to the constitution rather than looking without.
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and i i think that's one reason why traditionally the court is in some of its greatest overrulings, it's not looking without. it's saying this was wrong, it was wrong the day it was decided, we know it was wrong odd, and it's led to all these terriblele consequences, we shod get rid of it. so i think that was an unfortunate break, and i think the court -- even if the court were to still look at legitimacy, justice barrett, i think the court could very, very powerfully say, look, our legitimacy derives from our willingness to stand strong and stand firm in the face of whatever is going on the and stand for constitutional principle and poll our tradition the traditional stare decisis factors to rule when it's appropriate. thank you, your honor. >> thank you, counsel. >> the thank you, mr. chief justice. >> [inaudible]
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>> mr. chief justice and may it please court, mississippi's ban on abortion two months before viability is flatly unconstitutional under precedent. mississippi asked percent court to dismantle this press kent and allow states to force women to remain pregnant and give birth against their will. the court should refuse to do so for at least three reasons. first, sari desai sis presents --nt stare decisis presents an especially high bar. many casey this court rejected every possible reason for overruling roe hostledding that a woman's right to end pregnancy before viability was a rule of law and a component that liberty could not renounce. the question is not whether roe should behe overturned, but whether casey was e region juicily wrong to adhere to roe's central holdings. second, casey and roe were correct. for a state tooe take control oa woman's body and demand that she
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go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberties. preserving a woman's right to make this decision protects her liberty while logically balancing other interests at stake. third, eliminating or reducing the right to abortion will propel women backwards. two generations have now relied on right, and one out of every four women makes the decision to end a pregnancy. mississippi's ban would particularly hurt women with a major health or life change during the course of a pregnancy. poor women were twice as likely to bee delayed in accessing care and young people or those in contraception who take longer to recognize a pregnancy. to avoid profound damage to women's liberty, equality and the rule of law, the court
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should affirm. >> counsel, i just have one question. i assume you, from your brief, you're relying on an autonomy theory. >> both bodily integrity and the ability toeg make decisions related to family, marriage and childbearing, your honor. >> shortly shock years after we decided casey, we had a case out of south carolina, i believe, involved a woman who had been convicted of criminal child neglect because she ingested cocaine during pregnancy. many -- in the her case was post-viability, so it doesn't fit in the facts of this case. if she had ingested cocaine
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pre-viability and had the same negative consequences to her child, do you think state had an interest in enforcing that law against her? >> the state may have, your honor. the s state can certainly regulate, serve its interest in fetal life and women's health. those particulare laws deter women from seeking prenatal care which is counterproductive to both their -- >> but pre-viability as well as post-viability? >> no, your honor. thebi court has been clear that the after viability they can prohibit abortion except to -- >> no. i mean in my example of criminal child neglect. i understand you, your argument is about abortion. i am trying to look at issue of bodily autonomy and whether or not she has a right also to bodily autonomy in the case of
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ingestingn an illegal substance and causing harm to a pre-viability fee -- fetus. >> your honor, of course those issues aren't posed in this case, and i would say the states can certainly regulate throughout pregnancy both before andd after viability both to preserve fetal life and the woman's health. the court has said there are other constitutional issues at stake. for instance, mt. ferguson case -- in the ferguson case. but again, that's not what this case iss about. this case is about a ban on abortion, and the court has been clear for 50 years that the one hinge that states cannot do is to take the decision completely away from the woman until viability. but until that point, it is her decision to make given unique physical demands of pregnancy and the high-altering -- life-altering consequences of pregnancy and having a child. >> thank you. >> thehe point you made about te
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impact on women and their place in society, those were certainly made in roe as well. what we have before us, though, is a 15-week standard. are youou suggesting that the difference between 15 weeks and viability are going to to have the same sort of impacts as you were talking about, as we were talking about in roe? a>> yes, your honor, i believe they would because people who need abortion after 15 weeks are are often in the most challengingg circumstances. as i mentioned, they are people who have perhaps had a health or life change, a family illness, a job loss, a separation, young people who are on contraception or pregnant for the first time and late to recognize signs of pregnancy or poor women who often have much more trouble navigating access to care, and if they're denied the ability to make decision because there's a ban after 15 weeks, they will suffer all of consequences that the court has talked about in the past. the data has been very clear
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over last 50 years that abortion has been critical to women's equal participation in society. critical to their health, to their lives, their ability to -- >> i'm sorry. whatal kind of data is that? >> i would refer the court to the brief of the economists in this case,th your honor, and it compiles cay a showing studies based actually on infor instance showing theua legalization of abortion and notwi other changes have had these benefits for women in society. and, again, those benefits are are clear for education, for the ability to pursue a profession, for the ability to the -- >> well, putting that data the aside, if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that therere is a point at which heavy had fair choice -- they've had the fair choice, the opportunity to choice. ..
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>> first, the seat conceded that some of its have met before in this law will bar doing so and a reasonable standard would be unworkable for the courts, both less principled and less workable viability and some of the reasons for that are without fibrotic chemotherapy no stop. they rush to ban abortion, virtually any time interpregnancy. a fan defendant similar refusing the 15 week band -- >> i know but i would like to focus on the 15 week band because that's not a dramatic departure from fibrotic.
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is the standard that vast majority of other countries, when we get to the fibrotic standard we share that standard with people's republic of china and north korea. i don't think you have to be in favor of looking to international law to set our constitutional standards to the concerns of those, if you share that particular time. >> there are two questions there. first, that's not correct about international law. in fact, the majority of countries that permit access to abortion a lot access right up until viability even if they have normalized earlier so for example, canada, great britain and most of europe allows access to abortion right up until viabilityht and the same fairnes in place -- >> what does it mean if they even have nominal lies? >> some have a line ofno 12 or 8 weeks, they permit legal access
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after then, broad social reasons, so she economic reasons so their regimes are comparable and they don't have the same barriers we have here so if they move the line backwards and 15 weeks is nine weeks before viability, it is quite a bit backwards and me need to be considered around regulation because it's cutting the roughly and half those bears were be more important. >> thank you. >> i have a question about the safe haven laws. in all 50 states, you can terminate parental flights by relinquishing aged child after abortion and the shortest. might have been 48 hours if i remember correctly so it seems to me roe and casey decide pansy so far as you and many of your
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focus on the ways in which first parenting, forced motherhood under mother's access to the workplace and equal opportunities about the focus on the consequences of parenting and motherhood that flow from pregnancy. i don't the safe haven laws take care of that problem? it seems to me i focus the burdn narrowly, there is this question and infringement upon bodily autonomyon like vaccines. however, it doesn't seem to me to follow the pregnancy and parenthood part of the same burden so it seems to me that joe joyce focus would be the ability of abortion at 23 weeks for state requiring the woman vote 15, 16 weeks more terminate parental rights at the conclusion, why didn't you address the safe haven lies laws and they don't matter? >> i think for a number of reasons. first, even if some of the laws
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of the idea of one. place a child up for adoption has been true soor the consideration the court already had before it when it decided those cases appear to the viability client but in addition, just focus on burdens of parenting and neither did roe or casey. pregnancies help it unique physical demands respond women and has impact on all of their lives and ability to care for children and family members on their ability to work. in mississippi, the risks are alarmingly hi, 75 times more dangerous to give birth in mississippi than to have free fibrotic abortion and they are disproportionately affecting the lives of color. >> eyes i read this, we'll talk about adoption and reference, out of the obligations of parenthood but as i hear this,
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are you saying it primarily in the bearing of the child? not so much looking forward into the consequences professional opportunities and work life andd economic burden? >> no, i believe that's exactly how casey talked about it, the two strands of cases the support of the right, onees is the strad of cases supporting bodily integrity in cases like riggins versus nevada and the second was the strand of cases supporting decisional autonomy must specifically related tol childbearing marriage and procreation decisions so it's both strands we are relying on fear. >> may i ask you about counsel, your colleagues on the other side emphasized casey rejected roe framework replaced with an undue burden standard.
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they argue standard was not well-known to the lobby for that and they argue undue burden standard has evolved over time to and with the court found difficult to agree upon and they pointed out in theirpl briefs tt the courts seem to suggest the court should consider both benefits and the burden associated with proposed restriction. in june, more recently court splintered on that same question whether benefits could be theidered only burdens so argument goes that this is proof to put aside all the other difficult questions in the case that the standard itself difficult to administer this relevant to this analysis and i want to give you the opportunity to respond. >> yes, your honor.
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for since undue fort this is not an issue in this case, status regulations, cap prohibition in the state conceded that this prohibition the title of this law, to prohibit abortion after 15 weeks and she only thing that is an issue is the fibrotic line the liability line hasas been workable. lower federal courts applied it consistently and uniformly for 50 years and there is no difficulty striking down this law unanimously so it's an exceedingly workable standard and if i may return to your question from a reasonable possibility standard with copy workable from what boil down to an argument they can prohibit a category of women from exercising constitutional right merely because of the number of people in the category and if not how constitutional right work. a state would never say it could ban religiousld services on wednesday evening for example simply because most people have
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religious services on another nightt. >> that is helpful, i think, i just want to make sure i understand. the court were to in this case, steps past viability and apply undue burden, undue burden test to regulations prior to viability, he would agree with the other side, i think that's not a workable standard is that a fair understanding. >> no, your honor. if i may verify, the undue burden has been workable for regulations -- i understand that, if it were to apply, if the court were to -- i thought this is what you are saying in response to chief justice but maybe i am mistaken, please correct me if i am but what is your argument against applying the undue burden standard? >> if the undue burden standard as thede court laid out casey which includes liability line --
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>> we are fighting the hypothetical here. hypothetically, if the court were to extend undue burden standard to regular agent prior to viability, would it be>> workable or not workable in your view? >> without fibrotic, it would not be workable because it would ultimately come down the claim that the states can bar a certain category from exercising this right simply because of the number of people in the category that is not workable standard. >> i appreciate the clarification, thank you. >> just to follow up on that, i read your briefs to say the only real options we have are two reaffirm roe and casey as a stand in their entirety. you say quote there are no half
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measures here, is that correct understanding? >> your honor, the argument the state has presented is what we are protonic to all of the state argument including alternatives undue burden for that viability would be equivalent of over casey and row because the viability line is the central holding, physics mentioned no fury in 19 times in the course and medical your about confirmed that the central holding off boh casey and roque. >> you do emphasized they drew the line in viability and roque and reaffirmed that encasing certainly something we have to take seriously into consideration but because we were considering that question now for the first time, i'm sure you know the arguments about the liability line as well as better than i do, what you say in
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defense of that line? would you say to the argument made many times by people who are pro-choice and pro-life that the line doesn't make any sense, it is justice blackmun described it, arbitrary. if one wants to be free of the presence off pregnancy, that interest does not disappear the moment the viability line is crossed, isn't that right? >> no and a few points to answer your question, first, i think state views s viability arbitray because it discounts the women's interest -- >> but does upon reaching viabilityy, does not have the same interest she hadom before viability inquiry, she no longer wants to continue.
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>> i'm trying to see if it is a principal line. just agree that a woman still has the same interest in terminating her pregnancy afterp the line has been crossed. >> yes but the court balanced the interest in ordering -- >> look at the other side, the fetus has an interest in having a life and't that doesn't chang, does it? from before viability to after viability? >> and some people's view, it doesn't what the court says is the philosophical practice could be resolved -- >> that's what i'm getting at, what is the philosophical argument? the secular philosophical argument for think this is the appropriate line. there are those who til say rigs of personhood should be considered to a have taken holdt a time when the fetus requires certain independent characteristics but viability is dependent on medical practice,
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it has changed in me continue to change. >> no, it's principal because in ordering the interest at stake, the court have to setd a line between conception and birth and it logically looked at the fetus' ability to survive separately as a line because it is verifiable doesn't require the court to resolve the philosophical issues at stake. >> i want to focus for a little bit on this, my colleague has something quite compelling, i'm not quite sure how they play out in casey. it is certainly true cannot base our decisions on whether they are popular or not with people. casey seems to say we shouldn't base our decisions not only on that but whether they are going to seem popular. it seemed to me to have a paradoxical conclusion that the
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more unpopular the decisions are the former the court should be in not the party from higher president, a super star decisive but it is for what are regarded as by many, the most erroneous decisions. you think there is that category or is it just normal stare decisis? >> it is president on president because casey did decisive analysis arose before the court, that decisive analysis was egregiously wrong and if i may answer your earlier question about whether viability was squarely an issue, it clearly was 869 -- 71, the court squarely addressed because the government made the argument that -- >> i appreciate casey address it but that's different than saying it was ann issue. he said it was the central
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principle of row because it was pretty much all that was left after they were done dealing with the rest of it and the regulations in casey had no applicability or not depending on liability, they applied throughout the whole range so physically six anything about why buddy, it's like what justice blackmun said when discussing his colleagues from a good reason not to have papers out that early, they don't have to address line drawing at all and they didn't have to address line drawing at all in casey. >> i disagree because undue d burden testing cooperates viabilityn line, that's what the court was assessing regulations against whether they imposed substantial obstacle in the path of the one before by voting and if a prohibition this law isn't substantial obstacle, nothing would be so the issue was squarely before the court the court said page 879 and about
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the undue burden test it was not disturbing by voting line. >> it's an interesting question, it's usually philosophical but has bite here. when i read casey, is not just one on one from kc plus row is they are making points that we are an institution, perhaps more than court of appeals or district court. no sword and yet we have to have public support in fact comes primarily since casey. o'connor wrote that but it comes primarily from people believing
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we do our job, we use reason, we don't look to what's just't popular. the problem with the super case like this, the watershed case where people are really opposed on both sides, and they really fight each other, they are going to beto ready to say no, you're just politicians. that's what kills us. as an american citizen. that's what they are say we are looking at it foror that, that they say is a reason why when you get a case like that, you better be sure the normal
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considerations overruling is double, triple, quadruple and they go through. okay?le what's the paradox? may be there's an argument that there isn't one but really in my head, i'm thinking i am not sure there may be one and i don't know ever thought about this and that occurred from i don't want to overrule, i wouldn't want. reporter: to overrule section of casey. maybe i haven't made it clear. >> i think the court sang some states enact laws and the courts president it's never enough of reason to overrule and that is
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true for a number of positions report is issued from the fact that some people continue to disagree is not on the basis to describe the. >> back to my original questions the right to abortion, is a privacy, autonomy, what would it be? >> it's liberty, textural protection in the 14th amendment the state can't deprive a person of liberty without due process of law the court has interpreted liberty to include the right to make a family physician and the right to physical autonomy including rights and fibrotic pregnancy.
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>> that's how the court interpreted the liberty class for 100 years and cases going back to meyer, criswell, kerry, levy. >> all of that comes out lock, dropped part of it.e when i am trying to focus on if we lower the levels or be more specific in the old days, please to say it was our right to privacy, due process, okay? josephph subject due process, im trying to get you to tell me what we are relying on now, is it privacy? autonomy? what is it? >> continues to be liberty and the rightbe exists generality, e court applies tradition under
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the common law for centuries women being able too and for pregnancies but in addition when it comes to decisions related to family, marriage and eschildbearing, the court has de the analysis at a higher levelel of generality and make sense because otherwise the constitution would reinforce this discrimination againstst women. >> justice alito. >> you just mentioned the common law so let me ask you a couple questions about history. did any state constitutional provision recognized abortion washa a right liberty immunity n 1868 the 14th amendment was adopted. >> but it was a lot under the common law for many years. >> did any decisions at that time or immediately after 1860 recognize that abortion was a right liberty or immunity? >> they were shortly before then talking about the about two ando pregnancy before the.
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>> what's your best case? >> for the right to end a pregnancy? >> yes. >> allowing amm state to take control performance o body and forced her to undergo the demand, wrists and life altering consequences of pregnancy is a fundamental i deprivation of liberty support recognizes the liberty interest reserves kind protections, it needs to draw a workable line five a is a line that logically crimes the interest at stake. >> the brief for american historical association says abortion was not legal before quickly 26 out of 37 states at a time when the 14th amendment was adopted, is that correct? >> it is because some states started to describe the common law a because of the view in the role was wife and mother that they reject and it's appropriate
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to do historical analysis at a higher level of generality. >> can it be said the right to abortion is deeply rooted in history and traditions of thera american people? >> yes, it can. at the founding, women were able and pregnancy under common law and is court specifically just discussed casey as a discussion based on history and decision 19 specifically called out and relieded on rose conclusion that at the time of the founding and well into the 1800s women have the ability to end a pregnancy. >> was the principal source the court relied on in row for its historical analysis? who was the i author of the article? i apologize, i don't remember the author, i know the court signs many pages during historical analysis and there's a brief on behalf of several key american historian associations that go through the history in detail because there's more information now that supports rose legal conclusion.
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>> inonthank you. >> i think the other side would say the or problem here is the court has been forced by the position you are taking in cases to pick sides on the most contentious debate in american life and to do so in a situation where they say the constitution is neutral on abortion, text and history, constitutions need pro-life nor pro-choice on the question of abortion and they would say it should be left to the people, for states or to congress and i think they continue because the constitution is neutral, this court should be scrupulously neutral on the question of
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abortion neither pro-choice neither pro-life because they say the constitution doesn't give us the authority, we should leave it to the states and be neutral on the question and they are saying here, i think, that we should return to the position of neutrality, contentious social issue during continuing to pick sides on the issue so out of a big picture level, that is their argument. >> a few points if i may, first the same arguments were made in casey and the court suggested saying that the philosophical disagreements can't be resolved in a way a woman has noo choice and second, i don't think it would be a neutral position the constitution provides a guarantee of liberty. the court interpreted that liberty to include the ability to make decisions related to childbearing marriage and family. women have rights to liberty
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under the constitution if they are not able to make this decision and states take control of women's bodies and force them indoor month of pregnancy and childbirth, they will never have equal status under the constitution. >> i want tond ask about decisie and think about how to approach back here, there questions, history helps think about the data history of how the courts applied and when you dig into it, history tells a somewhat different story and sometimes assumed. think about some of the most important cases, the most consequential cases in the courts history, there's a string of them for the cases overruled, outline separate but equal, one
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person one vote. west coast hotel which recognized state-supported to regulate business. requiring police to give warnings about the right to remain silent and have an attorney present to suspects in criminal custody. in texas, the state cannot prohibit same-sex conduct. mapp versus ohio, the exclusionary rule applies to state criminal prosecutions to exclude evidencena obtained in violation of the fourth amendment. getting versus wainwright guaranteeing the right to counsel in criminal cases. our burger fell which recognized a constitutional right to same-sex marriage. in each of those cases, and that a list and i could go on those of the most consequential important in the courts history, the court overruled and it turns
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out if the court in those cases had listened and they presented with arguments in those cases, adhere to precedent on west coast hotel and atkins and doctor if the court had done that in those cases, the country would be a different place so i assume you agree with some if not most of the cases i listed there where the courtul overruld so thehe question is, why, if ad i'm not saying the but if we think the prior presidents are seriously wrong, if that, why then thousand doesn't the history of this court's practice with respect to those cases tell us the right answer return to the position of neutrality and
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not stick with those in the same way those other cases didn't? >> the view of previous president is wrong has never been enough for the court to overrule and certainly shouldn't be enough when there's 50 years of precedent. the court has required something else, special justification in the state doesn't come forward with special justification, it makes the same arguments the court already considered andndau rejected decisive analysis in casey and there's nothing different, no less need today than 30 years ago or 50 years ago for women to be able to make this decision for themselves about their bodies lives and health think you. >> just disparate. >> i want to ask a follow-up question, asking about the viability line and if it was the right place, the right line to draw self taken out of the question, imagine a state
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constitution identical to the 14th a moment to do process, a state supreme court has to decide as a matter of state constitutional law the scope of an abortion right. the second trimester ends at 27 weeks so that the state supreme court says we think the right exists in the sense that the state cannot take away theirn rights to 27 weeks and after that, that's an undue burden standard. principle, of first if that line accepts thete constitutional law. >> your honor, it may be but the question in this case is whethec a mind is more principle and workable because of this -- >> that is the rope framework, why wouldn't that be workable if you pick a line and cite the end of the trimester 27 weeks, third trimester interest increase i
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don't understand why 27 weeks is less workable than 24. >> i'm not trying to suggest that, i'm trying to suggest is the viability line is the principal workable line but to change it, there have toe be a new line obviously more principle more workable in the line the court has drawn -- >> i'm asking as a matter of responsible. >> as a matter of first principle, the viability line makes sense because -- >> it's not constitutionally required as a matter of first principle, we could decide to be more protective and say 27 weeks under the second trimester. >> you could but the viability line is given protections for liberty because it comes from the woman's liberty interest resisting state control of here body and wants the court recognizes that, it needs tos draw the line as it does in other contexts like the fourth and fifth amendment the viability line sense because it focuses on the fetuses ability to survive separately which is an appropriate legal line
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because it's verifiable or have the philosophical question about when life begins. >> mr. chief justice and the court. for a half century, the courtfo has correctly recognized the constitution text and woman's fundamental right to r decide te to end a pregnancy before viability. that guarantees the states cannot force a woman toca carrya pregnancy to term and give birth has been gender substantial individual and society lines.di the real work affects of overruling will in casey would be superior and swift. nearly half of the states already have expected to enact bans on abortion in all stages
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of pregnancy, many without acceptance for rape or incest. women unable to travel hundreds of miles to gain access to legal abortion would be required to continue with the pregnancies and give birth with profound effects o on their bodies, their health and the course of their lives. if t this court renounces libery interest recognized in row and reaffirmed in casey, it would be unprecedented contraction and official rights stark departure from principles. the court has never revoked our right so fundamental to so many americans so central to their ability to participate fully and equally in society. the court should not overrule this component of women's liberty. >> general, would you specifically tell me pacifically is, is it the right specifically abortion, is it
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liberty, is it autonomy? is it privacy? >> the right is grounded in the liberty component of the 14th amendment, justice thomas but i think it promotes interest in autonomy, bodily integrity, liberty and equality and i do think it is pacifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy to carry the baby to term. >> i understand we are talking about abortion here but what is confusing is if we were talking about the second amendment, we are talking about fourth amendment i know we were here talking about because it written, it there. what specifically is the right here we are talking about? >> well, i think the court in the other contexts in respect to the other amendment has had to articulate what the text means in the back of the
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constitutional guarantees and it's a variety of different tests that implement first amendment rights from a second amendment rights and forth i mimic rights. i don't think there's anything unprecedented about the right the court articulated in the way it implemented the right by defining the scope ofde liberty interests. providing that's the moment when the balance of interest and when the state can act to prohibit a woman from getting an abortion based on interest in protecting fetal life. >> so the right specifically is abortion? >> the right of a woman prior to phyletic to control whether to continue with the pregnancy, yes. >> thank you. >> i am interested in justice kavanaugh, the litany of cases which we go through, and we have. yet you did all this unprecedented. see the structure of the constitution, the body is the
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relationship of the three branches of government -- the relationship of the federal government to the state. through incorporation of the th14th amendment of the state, the individuals, it is the federal government and the states relationship to individuals. i see the bill of rights including the 14th amendment as basically setting the limits giving individual freedom to do certain things and stopping the government from intruding in those liberties, those bill of rights, correct? of all of the decisions justice kavanaugh listed, all of them virtually except for maybe one
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involved us recognizing and overturning state control over issues we say belong to individuals, the right to be one with an individual right, correct? >> that's right and i think that is a key distinction, justice kavanaugh was relying on, i think they are two key distinctions, and the vast majority of those cases, the court was taking the issue away from the people and saying it was wrong before not to recognize our rights. i think it matters because it goes straight to reliance interest. the court would do the opposite, it would be telling the women of america it was wrong, the ability to control their bodies and perhaps the most important decisions they can make about whether to bring a child into this world is not part of their protective liberties and i think what come at a tremendous cost reliance women placed on thee
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right and societal reliance meant to further -- >> this may be my fault, i'm talking about ages -- pages 864 to 63 in the casey case. i've already used up too much time, i can't read the pages out loud but they do not include the list justice kavanaugh has. they do include two. one is brown and the second is west coast hotel versus parish. you could add gay rights cases as a third which would get the criteria, there are complex criteria she's talking about that link to the position and the rule ofhe law of this courto just read them before beginning to say whether they are overruling or not overruling the sense, meant there, calling for
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special concern. wait ao. minute, of course it ws wrong when decided but just a minute, also remember separate but equal is a badge of inferiority. no, they said itor isn't. all you have to do is open your eyes and look to the south my friend. you will see whether it was a request in 1954 they made some similar points, are you going to sit here in the middle of the depression and tell me lochner just about pure laissez-faire, we can run the country that way? i mentioned that because i want people to read those 15 pages with care and that's why i said that. if you have anything to add to
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my plea to read it, please do. >> i agree and i have read those pages and. reporter: them many times and i think this is another key distinction from cases justice kavanaugh was referring to, as i understand passages in casey, the court carefully walked through each and everywa decisie factor the court focuses on and look at workability as a fibrotic role. legal and factual about meant quickly reliance interest down the line with the case for reaffirming row was overwhelming and that, every factor the court determines whether to retain president, i think casey properly perceived the decision to overrule nevertheless perhaps basedd on the conclusion the hijustices back the cases wrongy designed from a counter to the ability to function as a cornerstone of the rule of law. >> is a your argument a case can never be overruled simply because it was outrageously wrong?
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>> i think at the very least the state would have to come forward some kind of materially changed circumstance or materially you argument and specific hasn't done -- >> so it was free argued in 1897, so nothing had changed. what it not be sufficient to say it was an egregiously wrong decision on the date it was handed down now it should be overruled? >> it certainly wasn't egregiously wrong in the data handed down for what the court said was what had become fear was the promisewn of idea that segregation had inferiority entirely mistaken. >> is your answer we needed all of the experience from 1896 to 1954 to realize that it was wrongly decided? had to come before the court in 1897, should have been overruled or not?
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we met i think i should have but the factual premise was wrong in the moment it was decided in the court realized that and clarified it when they overruled. >> the decision may be overruled from a property overruled when it must be overruled simply because it wasul egregiously wrg at the momente it was decided, s that correct? >> it's justified overruling in the interest w but it would run counter to any reasonable reliance, not a workable rule, it was an outlier in understanding fundamental freedom. >> there is a lot of reliance her mother's house built up a whole society based on the idea of white supremacy. it was improper reliance, reliance on egregiously wrongas understanding of what equal protection means that your answer -- i still don't
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understand and i still don't have your answer clearly, can a decision be overruled simply because it was erroneously wrong even if nothing has changed between the time the decision and went the court is called upon to consider whether ite should be overruled, yes or no? >> court has never overruled in that decision based on a conclusion the decision was wrong, it's only applied practice and likewise found overruling not in casey defect, edified the decisive factors, it's to be anything that back kind of expensive consideration same argument whether to retain or depart a president as an additional layer of precedent that needs to be relied on the foundation of rule of law. >> you've talked a number of times about reliance interest like you to say more about that because sometimes when we talk about r reliance interest, there's a rule of law and you say somebody will
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enforce my contract because of this it has to round of quality to it. as casey talked about the reliance interest here, they are a little more airy and i want your sense of what the reliance here and how do they cash out on the ground? >> there are multiple interests here in casey correctly recognized pointing to the individual reliance i and women and their partners, organizing their lives making important decisions against the backdrop of control over this consequential decision whether to have a child. people make decisions rely on that reproductive control, decisions were to live, court relationships to enter into and investments to make in their jobs and careers, at an individual level, there's profound reliance and certainly is the case not every woman in america has needed to exercise the right or t wanted to but one
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in four american women have had an abortion and for those women right secured by roe and casey has been critical iny trying to can control their bodies and their lives e. as a second dimension that casey properly recognized, the society dimension, understanding of our society even though it's a controversial decision and a liberty interest appointment. not everyone agrees not every person in america knows how the court find conflict of liberty import control they will have a new situation in an unplanned pregnancy and reverse course now i think what run counter to that societal reliance and concept we have quality is guaranteed to women in this country. >> it is certainlyly true that there can be some planning by esome people about pregnancy, people who were raped don't have
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a choice whether by an outsider or their owns husband and not everybody can afford contraceptives contrary to your adversaries brief. 19% of the women in mississippi are uninsured so they don't have money to pay for contraceptives. in their brief, nursing contraceptives if you use them, the failure rate small and etc., how can there be we'll reliance? can you address that issue? >> of course this is not immune, contraceptives existed in 1973 and 92 so the court recognized unplanned pregnancies would persist and deeply implicate the liberty interest of women but even on the facts, the state has mistaken, failure rate in the country is about 10% using the
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most common methods which means women using copper traps up one in i ten expense unplanned pregnancy in the first year, about half the women who have unplanned pregnancies were on contraceptives in the months it occurred so i think the idea contraceptives could make the need for abortion dissipate contrary to the factual reality. >> you also mentioned your cocounsel that life changes for women after 15 weeks. >> that is right. this is responsive to thenk questions chief justice was asking about in particular impact of enforcing team week bond, the court has looked at thats issue looking at the peope for whom loss of restriction are relevant so the question is, why would women need access to abortion after 15 weeks and what is the effect on them?
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there are abe number of women wo cannot get an abortion earlier don't realize they are pregnant, especially true of women who are young or don't have an experience of pregnancy before whether by circumstances change, they lose their job or relationship breaks apart her medical complications were for many women, they don't have the resources to pay for earlier, it takes time to raise the money or make appropriate logistical arrangements take time off work and travel and have child care and for all those women in this category we need access to abortion after 15 weeks, the fact that other women were able to exercise their constitutional rights does nothing to diminish the impact on their liberty interest in forcing them to continue without pregnancy. >> thank you. >> following up on that, but the argument be true in terms of viability as well? your discussion of the reliance
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interest in the ability of women and men to control their lives in reliance, the right to an abortion, the argument would not be a strong, i think you will have to concede given what we are talking about, not a prohibition, it's 815 week line. is that right? you have to hypothesize people who have planned their clearly e of a woman's protected liberty interest and the state is not asking the court to replace it with 15 week line to provide some measure of production but they are asking the court to reverse liberty interest
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altogether or leave it upp in te air and if that were to happen, six week plan or eight or ten week fan and someone would seek to enforce those and continued guidance with the liberty interest going forward. >> that may be what they are asking for but the thing at issue before us today is 15 weeks. i just wonder the strength of variable reliance argument center; based on a total prohibition will be if there isn't a totaln' prohibition ands far as viability goes, i don't see what it has to do with the question of choice at all. >> as casey emphasized in reaffirming bible decline, the court justified as a logical and biological justification marks the time in pregnancy when the fetus is capable -- >> a complete -- that is the definition of viability, it's not a reason viability is a good line.
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>> focusing on the idea of separateness and that align also history and tradition in this country of abortion relation contrary to the states argument here that time of the founding and for most of the early american history, women have the ability to access abortion in the early stages of pregnancy andn only one fetus was sufficiently separate so the bible decline aligns with history and tradition in that respect justice thomas. >> you heard my question to counsel earlier about the woman convicted of criminal child neglect. what would be your reaction to that as far as her liberty and whether or not liberty interests we are talking about expense to her. >> i have to confess i have not read this specific case you are referring to but iff i
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understand, it sounds as though the state is seeking to regulate for a child born injured while inside theur womb and i think we are not deny a state has an interest or interest here either. rope recognized states have interest from the outset of pregnancy and respect to this right tore abortion, there are profound liberty interests of the woman on the other side not being forced to continue with the pregnancy or endure childbirth child in the world safe argument here accesses worth more entirely incredibly interest on the other side. >> justice for such? >> i want to make sure i understand. >> do you see any other intelligence principal the court
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could choose? >> i think it would be critically important even if the court and the stress of viability line to reinforce and reaffirm fundamental profound liberty interests at stake here -- >> that wasn't my question i understand that fully, that is clear to me, i understand your position. i'm just asking about whether you think there will be an alternative line government to propose -- we would not have cases of ten and 12 and eight and six. iois there a line the government leaves his principal or not? >> i don't think there's align faculty more principal, the court would have to think about what is most consistent with president, or be clear and workable and what would preserve the components of liberty interest in fibrotic checks all
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boxes and has the advantage as well as rule of law 450 scarce. >> thank you, that is helpful. appreciate it. >> justice capslp off. >> you make forceful arguments and identify critically important interests at stake in this issue, no doubt about that. the other side as there are two interests at stake, there's also the interest in fetal life at stake as well. your brief youan say framework accommodates both theod interest of the pregnant woman in the interest of the fetus. the problem, i think the other side with say and i think this is hard, you can't accommodate both interests. you have to pick him up that is the fundamental problem one interest has to prevail over the
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other at any givener time and tt is why this is so challenging i think the question then becomes, what is the constitution say about that? i just want your reaction to what the other side is not mentioned in my prior questions you have those two interests at stake and both are important, why should this court be the arbiter rather than congress and state legislature, the people be able to resolve this? there will be different answers in mississippi and new york, different answers in alabama california because there are two different intercepts states they might value the interests somewhat differently.
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why is that not the right answer? >> not the right answer because the court correctly recognized the fundamental rights of women and the nature of fundamental rights, isha not the legislaturs to honor them or not. it's two different rules were prevailed throughout the country tohe overrule roe and casey but what that would mean is women in most states refusing to honor their rights and forcing them to continue to use their bodies to sustain pregnancy and bring a child into the world would have no recourse other than to r tral if they are able to afford it or attempt abortion outside the confines of the medical system or have a child even though that was not the best choice for them and their family. >> thank you. >> i have a follow-up to the question about reliance, i'm just trying to nail down and asked this i'm not sure i fully understand the position so pages
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18 and 19 up your brief, you talk about reliance interest" language from casey about a woman's ability to participate in social and economic life of the nation. i mentioned safe haven loss it seems to me i fully understand the reliance interest and then more specific ones about a woman's access to abortion as a form of birth control in the event contraception fails in the event she may e not bear the burdens of pregnancy but what you have to say to the argument that the reliance interest do not include reliance interest parenting bring a child into the world when that's maybe not the best thing for her family or her career? >> i think the state is wrong about that and where the analysis goes wrong in reliance on this safe haven law is overlooking the consequences forcing a woman upon g her choice
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of having to decide whether to give the child up. that's its own monumental decision so there's nothing new about the safe haven loss or at least nothing new about the availability of adoption as an alternative. wrote in case he already took cap effect and there certainly all of the bodily integrity interests but also autonomy interests as well. >> okay, so the reliance interest in the right to be able to choose to terminate the pregnancy rather having to terminate parental rights. >> i think that out of it for many women, it's an incredibly difficult choice but one this court has recognized must be left up to them -- >> you can watch the last couple of minutes and oral arguments in regard to our website c-span not workrk or c-span now video app. we take you lift to the u.s. senate which today is considering nomination of rosen morsel through the federal


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