tv Americas Newsroom With Bill Hemmer Dana Perino FOX News December 1, 2021 6:00am-8:00am PST
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>> dana: they argue abortion rights should be left to the state. the mississippi lone abortion clinic says it is racist and classist. >> bill: we need to hear the word viability. the court ruled states cannot ban abortion before a fetus is viability at 24 weeks but science shows viability begins earlier than previously thought. >> dana: if it rules for mississippi and overturns roe it does not mean abortion is banned in the united states. it would leave that decision up to each individual state. >> bill: which is the basis for the argument today. state's rights and other possibility the court ruling for mississippi and doesn't overturn roe. they could get 15 weeks standard viability.
>> it goes before a court with a conservative majority. the only justice who has openly called for roe to be overturned is clarence thomas. >> bill: emotions outside the court will run high on both sides. the decision not until late june which will be only months before next year's mid-term elections. >> abortion policy making should rest with the elected legislators and elected governors and so it is certainly important for us to make that request and know that the constitution gives us the power for people. for 50 years roe v. wade has pitted women against their children, woman against woman. it is time now to stop and empower women and support life. >> i hope the supreme court is listening. i think if you want to see a revolution, go ahead, outlaw roe v. wade and see what the response is of the public,
particularly young people. >> bill: let's talk to our panel now. there will be audio, shannon, and our audience will be able to hear the justices and the lawyers on both sides arguing this beginning in 58 minutes. >> that is a very helpful thing that will happen today. audio started coming out during coronavirus when the justices started holding hearings remotely by phone. occasionally in the past we would have to petition for same-day audio. it was a big fight. sometimes the court granted it and now they didn't. all of the audio happens with all of the arguments. i think it is fascinating people will be able to hear for themselves one of the biggest cases in decades. certainly on this issue of abortion and give transparency and insight that will hopefully be helpful to people as justices have the arguments today. >> dana: i wanted to ask you
about this issue of viability. because you will hear a lot about that today and the time difference of 24 weeks versus 15 weeks but that original roe decision dealt with viability back then, is that right? >> it did. many people don't understand roe was effectively gutted in the casey decision. all the supreme court did leave in terms of roe was the idea of the protected right to abortion. but they basically got rid of most of what was roe in the trimester system approach. they replaced it with a standard you can impose an undue burden on abortion and reproductive rights. this created and maintained the important line of viability. but technology has always been in conflict with these decisions, that as it becomes more viable earlier in a pregnancy, a lot of these states have been asking to move
that line. it is important to remember that only seven countries including the united states allow abortion after the 20th week out of almost 200 countries. and so that is an option for the court to consider is to uphold the mississippi law while also maintaining roe. but if they don't reverse roe today, i think roe is likely to be armor plated for the foreseeable future. they have six conservative justices and if they don't overturn roe, then i think this is precedent that is now would continue for the foreseeable future. >> bill: andy mccarthy, how do you see the case playing out today? >> one thing i would caution people. a lot of times what we hear in oral arguments doesn't necessarily translate to how the case is decided months later toward the end of the term.
i'm very interested in two things as i listen today. one is obviously chief justice roberts. the interesting dynamic, if the chief justice is in the majority he gets to assign the opinion. so if roberts wants to write the opinion himself, and we really do have a 6-3 conservative majority, he could join a conservative majority to drastically cut back and undo roe but more narrow than some other colleagues would be. the other person i watch is justice kagan. she has been masterful at finding places where she can bridge gaps particularly with chief justice roberts and have a faction in the middle that controls things. she has been able, i think, to narrow some pro-conservative decisions that allow the progressives to live to fight another day.
i am interested in the signal she sends as well. >> dana: tell us about the scene at the court. we can tell a lot of people have gathered and you are there as well. what do we see? >> as expected both sides have turned out in force today. bus loads of people have come from all over the country. they are having dueling demonstrations outside the court. the thing is we know that is heard inside the court. you can hear it in there. these justices will try very much to look like they aren't being swayed by political opinion. there is a lot of pressure on them. this is decades in the making getting this case, the challenge to roe back to the court. both sides showing up in force and very heated and passionate. so far very cordial. no dust-ups this morning. a lot of folks out in force. the justices will have to look and listen to the pressure, what they are hearing from mississippi as we've said. mississippi originally didn't submit the petition to the court or make their argument when the petition was pending before the court that they wanted to go straight out roe
but they made it clear that's what they want to do. you have to look at the justice. do they leave older precedents alone? nominees are asked about that whenever they come before the senate. how do you feel about it and is it untouchable? chief justice he is about leaving things untouched if that's possible. he likes to craft narrow opinions so that there aren't seismic shifts if he can help it in what happens. he and barrett and kavanaugh will be the three to watch in the middle. what those three do will make the outcome certainly swing one way or the other. i will keep a close eye on those three today. >> bill: you will be heading inside the court and we'll be in contact with you. you'll hear a lot on behalf of the state of mississippi saying states rights and determine this law not the u.s. supreme court. you will hear a lot arguments about technology and about the advancements in technology over the past 50 years. how does that affect the
justices now in 2021? >> that's a very good question because during the confirmation hearings particularly the last three nominees, democratic senators tried to get the nominees to agree with the idea that roe is so-called super precedent. it's more than just a case. it requires more to overturn it. i've always rejected that category and the trump nominees did not really go for that classification while saying that precedent needs to be respected under a doctrine called. casey was a plurality decision. we've had 5-4 decisions after casey. the court has always been struggling with the constitutional footprint upon which this right stands. and that is going to come up
today. you'll have people like thomas pushing to say where in the constitution is this right found? so the court first has to deal with that threshold question, do they think roe is good law? do they feel this is derived from the constitution or was the court engaging in extra constitutional legislation which is how a lot of conservatives view it. >> dana: thank you so much. we'll be paying attention to all of you as soon as this gets underway at 10:00. thank you all so much. >> bill: well done, thanks. >> dana: wanted to bring this up as well in september the fox news poll the most recent one we have the question was asked on supreme court action roe roe v. wade let it stand 65% overturn it 28%. what jonathan turley was saying when you look at it as a law as it was decided at the time there are very few constitutional scholars who say it was correctly decided. you might still think abortion should be legal and in the states that could be true,
right? the states will be allowed to make their own rules. the overarching roe v. wade in question and the best opportunity the pro-life advocates have had of overturn it. >> bill: very interesting. i get the sense this is bush versus gore and that level of intensity today. 21 years ago it was the first time we heard the audio from inside the u.s. supreme court and it really is truly a moment of drama when you hear the voices bounce off the marble walls inside the court. that's what you are in for in 45 minutes from now. >> dana: one other thing. you hear from the lawyers in the case. one from mississippi and one from the abortion clinic. a third lawyer speaking today, the solicitor general of the united states on behalf of the biden administration arguing it should be struck down. >> bill: we'll get back shortly.
>> dana: another strike for the biden agenda federal judge blocks a vaccine mandate for healthcare workers nationwide marking the third setback to require covid shots. jackie heinrich live at the white house. >> this is another blow to the biden administration. first there was the vaccine or test mandate that was put on hold. that was intended for all large employers to vaccinate or test employees. put on hold by a federal judge. then a missouri court blocked the administration from enforcing a mandate on healthcare workers on federally funded facilities in 10 saits and this action is an expansion of that extend being it to all healthcare workers nationwide. it came down yesterday, the mandate set to begin next week and would have required all healthcare workers and hospitals and nursing homes to receive at least their first shot by december 6 and fully vaccinated january 4. the judge, an appointee of president trump wrote there is
no question mandating a vaccine to 10.3 million healthcare workers is something that should be done by congress, not a government agency. it is not clear that an act of congressman dating a vaccine would be constitutional. according to the office of management and budget 92% of federal workers have already had one dose. the white house is telling federal agencies to delay suspending or firing unvaccinated workers until after the holidays. but a national labor shortage is still strange the economy. fed chair powell said in a senate banking committee yesterday that inflation is likely to stick around through the middle of next year and urging people to stop using the word transitory. >> we the end to use it to mean that it won't leave a permanent mark in the form of higher inflation. i think it's probably a good time to retire that word and try to explain more clearly what we mean. >> the white house says the pandemic is the primary cause of inflation and often point to the global nature of supply
chain issues. critics say that sounds like an excuse. >> i don't remember inflation or supply chain shortages or labor shortages we've seen this year in the first year of the pandemic? what changed? joe biden and the democrats took power in january. >> despite the words from the fed chair the white house says they continue to believe that inflationary pressures will ease over time and that these inflationary supply chain issues will subside and say their primary goal continues to be getting the pandemic under control to resolve all that. >> dana: lots going on at the white house. >> cnn pulling chris cuomo off the air after learning just how far the anchor went to try to protect his embattled brother as governor. is cuomo done? we'll ask joe concha. >> dana: fda advisory group giving narrow approval to experimental treatment.
why some experts still have questions. >> bill: stunning story here. a michigan teenager in custody for allegedly shooting and killing three classmates. this as we get new footage and audio from inside that school that appears to show him trying to lure his fellow students out of hiding. >> sheriff's office, safe to come out. ♪♪ helping them discover their dreams is one of the best parts of being a parent. one of the most important is giving them ways to fulfill them. for over 150 years, generations have trusted the strength and stability of pacific life. because life insurance can help protect and provide for the financial futures of the ones we love.
>> bill: new developments from cnn this morning as one of its lead anchors is taken off the air. the network says it is suspending chris cuomo indefinitely how the "new york post" sums it up. howie kurtz live with more on this. good morning to you. what do we know? >> good morning. for months cnn took no action
over disclosures that chris cuomo was aiding his brother's defense as the then new york governor fought for his job not a slap on the wrist. nothing happened after cuomo apologized. >> i never made calls to the press about my brother's situation. >> that's not true. cnn president jeff zucker who hired him bowing to pressure and suspending his star. some liberal journalists were demanding cuomo resign for his role in the sexual harassment probe. charlotte en et said chris cuomo had smeared her with reprehensible conduct. the brass did not know that cuomo was using his sources to find out things and feeding it to the governor's top aides and appeared to be digging up information on and drew cuomo's accusers sayings he had a lead on the wedding girl who said the governor harassed her at a
wedding. cuomo said he wasn't doing that research tried to edit some of his brother's statements. cnn created the mess last year by allowing interviews between the brothers and changed the rules to ban that and not launching an internal inquiry. less than four months after governor cuomo resigned chris cuomo has been sidelined and the network's use of the word indefinitely raises questions whether he is ever coming back. i wouldn't wager a large sum of money on that. >> dana: let's bring in joe concha. columnist at the hill. what was the straw that broke the camel's back and made cnn take the action. >> documented evidence. it is no longer he said, she said. there it is. when you have rolling stone and when you have liberal outlets calling for him not to be suspended, to be fired he was
getting hit from the left, right and everywhere in between and impossible to ignore. >> bill: there was a chris cuomo does a radio show and he did that show yesterday. call for number five, guys. during this clip here defends his brother and blames a lack of due process for his brother's downfall. >> i did not want him to resign in the beginning because i believed him. leave the women alone and let due process take care of the situation. when there wasn't going to be due process and his party was against him and the republicans weren't going to help them. he had no choice. he couldn't do the work of the state anymore. >> bill: late morning when he does his radio show. that comment from yesterday. that's fresh. and this question about the aide for the governor reaching out to chris during his work at cnn shows that he was reaching out to other media outlets to find out what he could and relay that to the governor's office which would suggest this thing runs deeper than cnn.
>> great point. chris cuomo in that clip struck me he talked about how there wasn't going to be due process for the governor. you had a news anchor that was literally trying to smear credible accuser's of sexual harassment and talking about due process and said the media wants on andrew cuomo's side. i'm sure they were on his side. >> dana: the book didn't sell hardly any copies by the way. what do we hear inside cnn? >> inside cnn. i thought this could go two ways. now i'm more howie kurtz' corner where it will end up. it could have gone if jeffrey tubin way. he stayed under the radar and then they brought him back or brian williams. six month suspension, then he doubled his air time, an hour show and promoted on some level. i thought maybe they would go
that route. let the news cycle take it away and bring back chris cuomo when everybody forgot about this. i spo he can to old friends at cnn. a veteran a long time. it appears his days are numbered at this particular network. this is a matter of no up side. he has lost 80% of his audience since the beginning of the year. he doesn't rate really well. he can't be trusted. he is toxic. smearing credible accusers of sexual harassment, what woman would want to watch this person on the air and what network would bring him back or work on his show. it appears his days are numbered at cnn. >> bill: i never make calls to the press about my brother's situation and we know that's no longer true. nice to see you in person. >> dana: graift to see you. -- great to see you. >> bill: want to get to
michigan. students running for cover during the deadly high school shooting. details and chilling new video in a moment. stay tuned for that. covid cases spike, new york's governor putting a hold on elective surgery. is that the right move or too soon? reaction from the admiral brett giroir coming up live. >> i have no idea why the over action is occurring and it will cause more harm, i can guarantee. now make another one and turn your equity into cash. with the newday 100 va loan you can take out up to $60,000 or more. veteran homeowners- with home values at all-time highs and rates at near all-time lows now's the time to do more with your home equity. veterans are calling newday at a record pace to take advantage of the newday 100 va loan. you can borrow up to 100% of your home's value to upgrade
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>> bill: 9:31 outside the u.s. supreme court watching the protestors gathering on both sides there. in 29 minutes we'll take you inside for the audio portion of the arguments that will begin on behalf of the lawyer and the u.s. justices dobbs versus jackson women's held coming up at 10:00 a.m. before we go there however we're learning more about the school shooting in michigan that took place yesterday. police say a high school
sophomore opened fire killing three of his classmates including a rising football star. eight others injured. the gunman's father purchased the weapons four days before the shooting and this chilling video inside a classroom shows the shooter posing as law enforcement to try to get inside. >> sheriff's office. it's safe to come out. >> we're not willing to take that risk right now. >> i can't hear you. >> we're not taking that risk right now. >> open the door and i'll show you my badge, bro. >> he said bro. red flag. >> bill: that is sickening. steve harrigan is live in oxford, michigan with more from there today. steve. >> we're learning more about those three students killed. they include 16-year-old tate myre. he played on the football team. one of the captains.
he tried to disarm the shooter in the hallway when he was shot. he was rushed to the hospital in a squad car but died en route. among the eight people wounded two are in critical condition. they have head and torso gunshot wounds and not clear what the motivation of this 15-year-old sophomore shooter was. he is not speaking to police nor are his parents. he apparently fired 15 to 20 shots before raising his arms and giving himself up to police who were on the scene within five minutes. >> the deputies removed from the suspect a 9 millimeter sp20, 22 pistol loaded at the time and still contained seven rounds of ammunition. >> when the first shots were fired, just before 1:00 p.m., students immediately put themselves inside the classroom and threw up chairs and tables to block the door. the video at the top is remarkable.
it really shows that even after shooting and killing, this 15-year-old even tried to lure out more victims into the hallway. let's take another look at that. >> sheriff's office. it's safe to come out. >> we're not willing to take that risk right now. >> i can't hear you. >> we're not taking that risk right now. >> open the door and ill oh he show you my badge, browe. >> yeah, bro. >> he said bro, red flag. >> bill: he tried to pose as a sheriff and almost succeeded. instead the students opened the window and ran to safety through the snow. the weapon used a 9 millimeter pistol purchased by the shooter's father just four days before the shooting. bill, back to you. >> steve harrigan, good to have you on the ground. oxford. >> dana: back to one of our top stories, a federal judge blocks the bind administration vaccine
mandate for healthcare workers the judge ruling if human nature and history teach anything. civil liberties face grave risks when government proclaim indefinite states of emergency. during a pandemic such as this it is more important to safeguard the separation of powers set forth in our constitution to avoid erosion of your liberties. admiral brett giroir former assistant secretary to h.h.s. what do you make of that decision by the judge specific to healthcare workers? >> thanks for having me on. of course i want to say i urge everyone to be vaccinated and get their booster but the judge had a lot of common sense. number one, cms is never mandated vaccines before, no meece else or polio or anything. he allowed states and local authorities to mandate. there was a lot of public health common sense in that, too. one size doesn't fit all, number one. there are people who work in hospitals who clean the floors or work in the kitchen and not
interfacing with patients. secondly, he talked about natural immunity which is true. if you have had covid particularly within six months you are protected. that's equivalent to a vaccine. finally, they didn't consider alternatives like testing. i'm not a lawyer and can't comment on the law but public health rational was very found. >> dana: there was an okay for the merck experimental viral treatment. the ceo of a medical college said to the panel if the probability is very low 1 in 10,000 or 100,000, that this drug would induce an escape mutant from the vaccines we don't cover that could be catastrophic for the whole world actually. i think some of these treatments sound promising especially if what dr. fauci said recently that it stays around forever and multiple ways to treat it. >> i think that comment is
completely unfounded. the merck drug is an incredible breakthrough. it is pills that you take for five days that dramatically lowers your risk of hospitalization and death. a huge breakthrough and work against delta and omicron and i do want to make the point because this is lost, the pfizer drug coming will be a good drug but if you are on blood thiners, heart medication, certain kinds of cholesterol medications, pain medications, you can't take the pfizer drug. you will be able to take the merck drug. the pfizer drug has drug interaction. we need them both. very important as we move forward. >> dana: we're watching omicron variant and waiting for more information. we understand it takes a couple of weeks. some people are moving forward. governor of new york has already jumped ahead and people should basically cancel their appointment for their elective surgeries. is that necessary in your opinion? >> i don't see any reason for this. if you look at the cdc tracker
there are only 2100 people hospitalized in the whole state of new york with covid. they have 60,000 beds. the number of hospitalizations are going down. i don't understand the rationale. secondly elective surgery is serious. these are people in chronic pain for back or knees, reconstructive surgery for children. reconstructive surgery of cancer. this is not where we need to go. if we need to redistribute patients that's what new york should be helping with but not canceling vital health procedures for people who might have been waiting months or a year for it because of the pandemic. we have to have compassion for these people, too. i dealt with that every day in a pediatric hospital and that's where we need to point, not canceling the surgeries. >> dana: any recommendations you would give to this president? you advised president trump during his presidency on the pandemic. president biden will make
remarks tomorrow in regards to the omicron variant, anything you would suggest to him? >> i thought his remarks a couple of days ago were reasonably on target. i don't agree with everything. we need to have concern but not panic. what i'm seeing is panic and actions that they are using omicron as an excuse. look, we are oef in a different place now. get vaccinated. fill your immune tank off and top it off by getting the booster. get tests at home. i went to wal-mart a couple of days ago and bought tests and test myself and family. use reasonable mitigation and we have things like hopefully the merck drug that will be authorized that gives us another arrow in our quiver. have common sense, do the right thing. we have weapons against this virus now. don't overreact. >> dana: tool in a tool box. arrow in the quiver is much better. thanks, we'll see you soon. >> bill: 20 minutes before the
hour. alarming spike in overdose deaths across the country. new york city's mayor says he has the answer to bring numbers down. his idea is not without controversy. we'll get to that. china is building up its military power and today a new survey from the reagan library shows a dramatic change in how americans view the world. that's next. rowback? ♪ liberty, liberty, liberty, liberty ♪ only pay for what you need. ♪ liberty, liberty, liberty, liberty ♪ new projects means new project managers. you need to hire. i need indeed. indeed you do. when you sponsor a job, you immediately get your shortlist of quality candidates, whose resumes on indeed match your job criteria. visit indeed.com/hire and get started today.
>> dana: looking to combat the rise in overdose deaths from drugs new york city has approved two supervised injection sites. alexis mcadams has the latest. >> good morning, that's right. these are supervised overdoes centers and they are hoping staff will be able to step in if needed. there have already been a handful of overdoses at these locations after the centers just opened yesterday. that's according to the "new york post." this is video from inside one of those two supervised injection sites open in manhattan. staff at the privately run centers provide clean needles, education and monitoring for overdoses. just yesterday within hours of opening the doors the center had at least five people overdose. trained staff reviving those people using the drug according to the "new york post" calling the center and haven't heard
back yet. it comes at new york is dealing with a drug overdose epidemic. last year more than 2,000 people died of a drug overdose in new york city. 85% of those deaths involved opioids. according to the office of the special narcotics prosecutor somebody dies of an overdose every five hours. >> they do suffer from an overdose. they can get immediate attention and resuscitation. that's very important. >> not everyone is on board, though, with this idea. representative malliotakis calling on the department of justice to block the overdose prevention sites and back out here in new york city i can tell you the epidemic continues to climb and why they say the sites are so important. this site alone in new york city could save 130 lives in a year. >> dana: we'll keep an eye on that.
>> bill: vladimir putin down playing china's growing military arsenal. the russian president pointing to the united states as the real threat citing the pentagon's hypersonic weapons. a new survey revealed how much americans have changed and how they view the world. welcome to our coverage. i'm sure you saw putin's comments from yesterday. this is what your survey found. according to your institute 52% of americans now name china when asked which country thee see as the greatest threat to the united states. that's a clear majority and for the first time, rachel. what does that tell us? >> that's right. it shows us that the american people are coming to a bipartisan consensus around the threats our country faces. as you can see on the chart here, just three years ago when we started the reagan national defense survey russia was at the top of the list when
americans were asked that question. the increase in awareness about the china threat is bringing the opinions of the american people in line with the bipartisan national security consensus in washington about the threat we face from china. we heard from that in the trump administration and the biden administration. >> bill: what did the survey find how americans feel we should respond? >> that's an interesting question, bill. at the same time as americans are really having clarity and really a clear eyed assessment of the threats we face they face a lot of uncertainty and ambivalence what to do about them. how and even if america should lead in the world. and in some cases whether we can meet the threats we face. in particular our survey shows there is a declining confidence and trust in the american military which is, of course, the primary institution tasked with meeting the threats that we face around the world and rising to the challenges whether it's china or any other region of the world.
>> bill: would you compare it -- i was reading about the mood 40 years ago when ronald reagan took office in 1981. what is the fair comparison, do you believe? >> i think there are some fair comparisons to be made. we're celebrating the 40th anniversary of reagan's inaugural year. when he took office there was a sense in the nation and american people about american decline. one of the great things about the reagan presidency was that he took it upon himself to restore the confidence of the american people. not just in our military. that was part of it through his military build-up but also more broadly americans belief about the u.s. role in the world. about america as a shining city on a hill. beacon for freedom. the point of the strength is to insure peace and prosperity and security around the world with his philosophy is peace through strength. >> bill: when you circle back on china and think where the
survey was three years ago it is a dramatic difference how americans feel about the threats overseas and where they come from. rachel, thank you so much. see you in simi valley at the end of the week and look forward to that. thank you for your time. >> thank you, bill. >> dana: minutes from nouf the supreme court will hear its biggest abortion case in decades. emotions are high on both sides. we'll bring you the audio from inside the courtroom live as it happens. veteran homeowners- have you been spending more time at home? imagining the possibilities? like a bigger kitchen, a swimming pool
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>> dana: supreme court arguments starting soon on a major challenge to abortion rights. the future of roe v. wade hanging in the balance. arguments in the blockbuster case are expected to last at least 70 minutes. it could take a little longer than that. welcome to a new hour of "america's newsroom." i'm dana perino. >> bill: i'm bill hemmer. a big moment here. first thing you hear is the marshall of the court gafsh elling the court into session and the chief sus j*us advertise announces the case and arguments begin. it centers on a law out of mississippi passed in 2018 that
bans most abortions after 15 weeks. that law directly contradicts roe v. wade. the state of mississippi says it should set its own policy and now with the 6-3 conservative majority the court could overturn or limit roe v. wade. >> dana: we know the united states is one of less than 10 countries worldwide that allows abortion on request after 20 weeks of pregnancy and so this is about to get underway. we have shannon bream in the chamber. she will be able to listen to that and you see the protestors out there in force on both sides and shannon reported earlier that the justices can hear the shouts from outside but they do their best to ignore them. >> bill: our best counsel here is that they will start right on the dot here so to take us through the next four minutes or so to navigate through all this andy mccarthy, carrie severino and jhonattan turley.
carey, stand by. david spunt is live outside the court to tell us what's happening on boekt sides now. good morning. >> good morning to you. historic day. for years pro-life groups have aggressively tried to overturn roe v. wade. they've come close and never been able to quite do it. today may be that day with those oral arguments and a 6-3 conservative majority of supreme court justices. people have been out here since 2:00, 3:00 this morning passionately arguing their side of this issue. this is a big one. a case out of mississippi. the one operating abortion clinic in that state the court could leave roe alone, strike it down or severely limit roe decided in 1973 nearly 50 years ago. >> the court is going to decide whether or not people are going to be able to enjoy their right to choose for themselves whether, when and how to have a child or whether states will be
able to put serious and grave restrictions on that right. >> pro-lifeers led by mississippi attorney general lynn fix say now is the time to make a change. >> it is time. it has been nearly 50 years. the reality is this is a rule of law question. it is time to return it to the states. >> this is likely to be a blanket decision affecting the entire country. the decision will come down likely end of june, early july right in the middle of the mid-term election season. bill and dana. >> bill: thank you david outside the courthouse there. >> dana: take it back to our panel. one of the things that will happen. you will hear from the state of mississippi and the mississippi abortion clinic lawyer and the biden administration. >> we expect the administration will argue the united states constitution does protect this right. we know merrick garland the
attorney general has gone out of his way to try to file a case in texas heartbeat bill law. they want to try to preserve roe as it stands but again as mississippi said this is really about giving people more freedom and to understand and to decide how they want their own laws to be in each state so that the federal government wants to keep that authority completely at the federal level and not let the states determine their own abortion policy. >> dana: let me ask one other question. this is under a biden administration. if this case had come up and we were still in a trump administration or republican administration how might the administration have weighed in then? >> you likely would have seen the opposite response. something that's typical when we switch over. they have cases where they effectively argued on both sides because trump's solicitor general filed in a case and argued after biden took office and the government position switched. it is not taking the position
of the united states more broadly but the position in some cases of the way the current administration interprets that. >> bill: we'll take you inside the courtroom when it is gaveled into session. what is mississippi's best argument today? >> i think, bill, what they are going to say is that they have incorporated in their statute what casey says is a defense based on due burden so at least you could -- they will try to argue you can uphold the law without necessarily undoing casey. i don't think it is a very persuasive argument. they have to confront roe and casey in order to -- >> bill: the whole ball of wax as you are saying. >> i think if they are going to get down to brass tax and grapple with this as it exists, yes. >> dana: senator from new
hampshire said if they overturn rowe you could see a revolution in the country. >> that's the latest veiled threat against the court and its members. we had a revolution and what got us these rights and institutions. so it is a really reckless statement but it is one of a long litany of such statements. i expect if anything it would backfire. more likely the court will push back than yield to those types of threats. judicial review is supposed to be done without fear of repercussions and why we gave justices life tenure. that's what alexander hamilton said was the guarantee of the rule of law. what these members are doing and many liberal academics is saying if you don't rule the way we think you should you will bear the consequences. chuck schumer said that to individual justices. they are threatening to pack
the court. that is exactly what the constitution was designed to resist. >> bill: jonathan, andy and carey stand by. we can hear the audio from inside the supreme court. the marshall joined the court in the month of june. we believe now in session. the court will begin. soon you will hear the chief justice and also scott stewart, the first lawyer to make arguments. let's drop in. >> yet the courts below struck the law down. it didn't matter that the law applies when an unborn child is undough neuably human and risks to women surge and the common abortion procedure is brutal. the lower courts held that because the law prohibits abortions before viability it is unconstitutional no matter what. roe and casey's core holding is that the people can protect an unborn girl's life when she be barely survive outside the womb
but not earlier. that's the world under roe and casey but not the constitution places its trust in the people. on hard issue after hard issue the 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 belongs to the people. roe and casey have failed but the people if given the chance will succeed. this court should overrule roe and casey and uphold the state's law. i welcome the court's questions. >> general stewart, you focus on the right to abortion but our jurisprudence seems to focus on in casey autonomy and in roe, privacy. does it make a difference that
we focus on privacy or autonomy or more specifically on abortion? >> i think whichever one of those you are focusing on, your honor, particularly if you focus on the right to abortion, each of those starts to become a step removed from what is provided in the constitution. yes, the constitution does provide certain -- protects certain aspects of privacy and autonomy and like but as this court said going directly from general concepts of autonomy, privacy, bodily integrity to a right is now how this court traditionally does due process analysis. i think it confirms whichever one of those you look at, a right to abortion is not grounded in the text. it is grounded on abstract concepts that this court has rejected in other contexts applying. >> you say that this is the 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. i mention two in particular. one is it really does mark out the unbelievably profound ramifications of this area which in many other areas assisted suicide, a whole host of important areas, important to freedom and matters of conscience, it marks it out as one of the unique areas where this court has taken that important issue to the people and it is something that imply indicates life and just marks off justice thomas, how problematic and unusual and how much of a break the court's abortion juris pru dense is from the other cases. >> if we don't overrule casey or roe do you have a standard you propose other than viability? >> bill: a >> no stanld ard other than the
national basis review that applies to all laws will provide a workable and consistent jurisprudence that puts matters back with the people. anything heightened will be problematic. i would say if the court were not inclined to overrule casey the choice would be undue burden standard from any viability rule. >> i would like to go to a different topic, back to casey. i assume you have read casey pretty thoroughly. >> yes, your honor. >> two parts. they reaffirm roe. put that to the side. the second is the opinion for the court, not three people. but for the court and that second part is about what principles should be used to overrule a case like roe?
and they say roe is special. what's special about it? they say it's rare. they call it a watershed. why? because the country is divided? because feelings run high? and yet the country, for better or for worse, has started 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 about. i want your reaction to what they said follows from that. what the court said follows from that is that it should be more unwilling to overrule a prior case, far more unwilling we should be, whether that case is right or wrong, than the ordinary case. and why? well, they have a lot of words
there but i'll give you 10 or 20. there will be inevitable efforts to overturn it. of course there be. feelings run high. and it is particularly important to show what we do in overturning a 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, was anything but a surrender to political pressures or members and that's an unjustified repudiation of principles on which the court stakes its authority. and then there are two sentences i would like to read. 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. and the last sentence after they quote potter stewart on the same point, they say overruling unnecessarily and under pressure would lead to condemnation, the court's loss of confidence in the judiciary, the 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 is the opinion of the court, all right? and it is about how we approach it and i hope everybody reads it. 505 u.s. 854 to 869. what do you say to that? >> sure, justice breyer.
i would say a couple of things. i would say we have very closely gone through the factors that the casey court itself went through. more than half our brief is devoted to starry desizeis. >> what i would emphasize is that to the extent that i would not say it was the people that called this court to end the controversy. the people, many, many people just wanted to have the matter returned to them so they could decide it locally and deal with it the way they thought best and have a fighting chance to have their view prevail which was not given to them under roe and as a result under casey. i would also emphasize that the last 30 years workability, developments in the law,
factual development in states. the workability of the undue standard alone. all the metrics casey was describing casey fails. i would emphasize this as well. casey was not a great example of simply letting precedent stand. it recast and overruled two of the court's most important abortion decisions. it adopted a new standard unknown to other parts of the law. those aren't the hallmarks of precedent and failed under this court. >> your answer is yes, you accept the way the special rule, the rule for the rare watershed, the principles for deciding whether to overturn such a case as roe, you accept that and think it's met.
>> i would say yes in part, justice breyer. here is what i would emphasize. i do think particularly when casey looked outward and looked to what it saw as pressure there was pressure on all sides. this is a hot, difficult issue for everyone. that's why it belongs to the people and i this i the conclusion the court drew from that, that it couldn't provide a good enough example and look on principles those conclusions were mistaken and the last 30 years has not seen any calming of that. it has been very different than some of the others, the court's other controversial decisions that have seemed more calm. >> what hasn't been at issue in the last 30 years is the line that casey drew of viability. there has been some difference of opinion with respect to undue burden, but the right of
a woman to choose, the right to control her own body, has been clearly set forth since casey and never challenged. you want us to reject that right of viability and adopt something different. 15 justices over 50 years have or i should say 30 since casey, have reaffirmed that basic viability line. four have said no, two of them members of this court. but 15 justices have said yes. of varying political backgrounds. now the sponsors of this bill, the house bill in mississippi, said we are doing it because we have new justices. the newest ban mississippi put
in place, the six-week ban, the senate sponsor said we're doing it because we have new justices on the supreme court. will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts? i don't see how it is possible. it is what casey talked about when it talked about watershed decisions. some of them brown versus board of education it mentioned, and this one, have such an entrenched set of expectations in our society that this is what the court decided, this is
what we will follow, that we won't be able to survive if people believe that everything, including new york versus sullivan, i could name any other set of rights, including the second amendment, by the way. there are many political people who believe the court erred in seeing this as a personal right as opposed to a militia right. if people actually believe that it is all political, how will we survive? how will the court survive? >> justice sotomayor, i think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the constitution, in history and tradition and that carefully goes through the factors we point out. >> casey went through every one of them. you think it did it wrong. that's your belief. but casey did that.
and you haven't added much to the discussion in your papers as to the errors that casey made other than i disagree with casey. >> justice sotomayor maybe i can highlight, too. casey gave one paragraph to the workability of roe. it then adopted the undue burden standard the most unworkable standard in american law and three paragraphs to reliance which doesn't account for the last 30 years and the changes that occurred since casey. it gave a brief factual view to things that have changed since roe. those are not going to take account of the last 30 years of advancements in medicine, science and all of those things. >> what are the advancements in medicine. >> an advancement in knowledge and concern about such things as fetal pain and very human
from -- >> in early cases courts decide whether science fits the dal bert standard. obviously under the dal bert standard the minority of people, gross minority of doctors who believe fetal pain exists before 24 and 25 weeks is a huge minority and one not well founded in signs at all. so i don't see how that really adds anything to the discussion. that a small fringe of doctors believe that pain could be experienced before a cortex is formed doesn't mean there has been that much of a difference since casey. >> we pointed out where roe and casey improperly preclude states from taking account for these things and they should be able to be concerned about a
fact of an unborn life being poked and recoiling and the way one of us would recoil in pain. >> i know what it said about viability in roe. but was viability an issue in the case? i know it wasn't briefed or argued. >> it was not an issue the way it is an issue here, your honor. i think it was toss extent the court had to reaffirm roe the way to read that as something other than -- >> i'm sorry. was it an issue in roe? >> in roe, i'm sorry, your honor. the law there didn't have a viability tag. >> in fact, if i remember correctly and it's an unfortunate source but it is there in miss papers justice
blackman said the viability line was dicta and had some insight on the question. >> i would add justice blackman pointed out the arbitrary nature of it. >> casey said it was the central principle in roe, viability after tossing out the trimester formula 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. it is a little hard not to take the court at its word when it emphasized that the viability is the central part of roe's holding saying it is reaffirming that. we take it as it stands. the court has not -- it did not face a law like this certainly mr. chief justice. >> may i finish my inquiry? >> of course.
>> virtually every state defines 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 is 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 to -- by a fetus necessarily proves there is a sensation of pain or that there is 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 -- i think that's what both courts below said. that you had no experts say that there is any viability before 23 to 24 weeks. >> what i would say is this. the fundamental problem with viability it is not something that rests on science so much. it is that viability is not tethered to anything in the constitution in history or tradition. it is a quintessentially legislative line. a legislature could think that viability makes sense as a place to draw the line but quite reasonable for a legislature to draw another line. >> there is so much that's not in the constitution, including the fact that we have the last word, marberry versus madison, there is not anything in the constitution that says that the court, the supreme court, is the last word on what the constitution means. it's totally novel at that time. and yet what the court did was
reason from the structure of the constitution that that's what was intended and here in casey and in roe, the 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've recognized them in terms of the religion, parents will teach their children. we've 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 use contraception or not. we've recognized it in their right to choose who they are going to marry. i fear none of those things are written in the constitution.
they have all like marberry versus madison been discerned from the structure of the constitution. why do we now say that somehow roe and casey are so unusual that they must be overturned? >> justice sotomayor, i would emphasize two things. when you are going beyond the constitution, this court has looked closely to -- >> they didn't go beyond the constitution is what i'm saying. >> they did not deduce those from the structure of the constitution. they pointed to the 14th amendment and reasoned that privacy in roe and autonomy and similar values in casey led to a right in abortion. that's not how the court traditionally does that. the court looks as history and decision. here those reject the proposition that states cannot legislate on abortion before, after viability and all throughout. so it is history and tradition,
your honor. i would also add that those decisions, a great many of them draw not just draw from text, history and tradition but draw clear lines, very workable, have not led to the many negative factors that we identify here. >> would a decision in your favor call any of the questions -- any of the cases that justice sotomayor is identifying into question? >> no, your honor for a couple of reasons. first of all, i think the vast round of those cases, some mentioned time are griswold, lawrence, that draw clear rule. can't ban marriage of people of the same sex and others, clear rules that strong reliance and not produced negative
consequences. negative considerations we pointed out. none of them involve the purposeful termination of a human life. those two features and termination of a human life puts all of those safely out of reach if the court overrules here. >> you might be making progress in the part that i read, you know, of casey. i think they go back 150 years and maybe go back 200. they think there have only been two cases which are what they called the watershed where the special tough overruling rules apply. you want this to be the third or do you think there were more? and if so, what were they? >> well, your honor, i think there is quite a bit of difference. the question is never is it bad to overrule period. surely -- >> in near terms there were two
they mentioned. and they don't want casey, they don't want roe to be the third. now in your opinion you just answered justice barrett all these are not rising to that level. okay. are there any that do rise to the level in your opinion? >> i think -- i'm not sure i necessarily agree with the watershed characterization your honor. i can't think of another that hits the radar. the problem here is we're dealing with a right that doesn't have a basis in constitutional text. 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 griswald, lawrence, they all relied on substantive due process. you are saying there is no substantive due process in the constitution. so they are just as wrong according to your theory.
>> no, we're quite comfortable with how it analyzes substantive due process and looks history and -- to discipline the inquiry. >> bergfeld there was no history of same-sex marriage. >> i think the court pointed out look, when we we were facing -- >> i'm not trying to argue we should overturn those cases but you are dis-- you think that no state is going to think otherwise? that no people in the population aren't going to challenge those cases in court? >> your honor, we'll always have a diversity of views. >> that's the point. that's the point. isn't that the point? >> that there is a diversity of views and people can debate.
that's a good thing. >> that's what we're doing under undue burden but not on the viability line. >> neither one has worked well. the viability line discounts and disregards state interest and the undue burden standard has all the problem. >> how is your interest anything but a religious view. the issue of when life begins has been hotly debated by philosophers since the beginning of time. it is 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? it assumes that a fetus is life at when? you are not -- when do you suggest we begin that life? >> your honor, aside from --
>> putting it aside from religious. >> i think there might be more than one question and do my very best, justice. this court in gonzalez clearly recognized before viability we're talking with unborn life with a human organism. i think the philosophical questions your honor mentioned the reasons are hard, debated, important. those are all reasons to return this to the people. because the people should get to debate these hard issues. this court does not in that kind of a circumstance. >> when does the life of a woman and putting her at risk enter the calculus? meaning right now forcing women who are poor -- 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 and ending their life. 14 times greater to give birth to a child full term 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? >> i think to answer i think the question i think you led with and then i think expanded on but still on the same issue is as to when does a woman's interest enter. as far as we're concerned it's there the entire time. all the interests are there the entire time and roe and casey improperly prevent states from weighing the interest when they
think best. >> are there secular fill os fierce and bioethicistss who take the position that the rights of personhood begin at conception or at some point other than viability? >> i believe so. i think there is a wide array of people of all different views and no-faith views who would reason will be ahave that voou. it is not tied to a religious view. otherwise the jurisprudence would run into the religious exercise jurisprudence. >> justice breyer started with sari decis 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 of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to the court's membership. 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 do that, we want you to discard the viability line which you have acknowledged again today casey says is the heart, the central principle of roe. and so usually there has to be a justification, a strong justification in a case like this beyond the fact that you think the case is wrong. and i guess what strikes me when i look at this case is
that not much has changed since roe and casey. that people think it is right or wrong based on the things that they have always thought it was right and wrong for. so the rationale behind those cases has something to do with the autonomy and the freedom and the dignity of women to pursue their lives as they wish, to protect their bodily integrity, to make the decisions that are most fundamental to the course of their lives, and always in those cases there was an understanding that there were important interests on the other side in protecting life or 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. and 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're in the same exact place as we were then except that we're not because there has 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. so i guess i just wanted to hear you react to that. >> of course, justice kagan, thank you. i would emphasize a couple of things, your honor. the fact that so much time has passed. let's say nothing had changed. that's not a point in roe and casey's favor. they have no basis in the constitution. they adopt a right that purposefully leads to the termination of now millions of
human lives. if nothing had changed they would be just as bad as they were 30 years ago, 50 years ago and now we just have decades of damage and we have a situation where nearly 30 years after casey the court unfortunately divides over what casey, the lead case on the abortion area he have even means. the lower courts are left not knowing what to do and a fundamental problem as justice gorsuch emphasized in his opinion the problem for lower court is judges there is no neutral rule of law. judges have to look within themselves and that is never going to solve this issue. if the matters return to the people, the people can deal with it and work and compromise and reach different solutions. if we don't do that we'll have all this sort of damage and at some point it is appropriate for the court to say enough as it has in the great overrulings in brown and other cases where it said this is just enough.
justice harlan had it right in dissent in pleasey when he recognized that all are equal and similarly the states should be able to recognize there are values on boekt sides here. we think this one slightly outweighs or this one outweighs or a balance to be drawn here. if the court doesn't do that, justice kagan, it will be continued damage and the court will continue to punch in this political issue. >> i have just a few little -- a few questions. first gets back to the issue of viability. you know, in your petition for cert was whether all pre-viability prohibitions on elective abortions are unconstitutional. then i think it's fair to say when you got to the brief on the merits you shift i had gears and talked a lot whether roe and casey should be
overruled. i wanted to give you a chance to explain that. >> sure, your honor. a couple of points. at the petition stage we were identified for the court three questions. we emotion -- emphasized five times the court was at the least going to reconsider, re-evaluate its precedents and asking the court to get rid of a viability line or any suggestion of one. so we added however and we had to take account of the reality that this argument has not faired well in the lower courts and lost in every court of appeals so we raised the issue in addition. once the court granted only the first question we presented every argument as we signaled we would present the full blown constitutional merits argument with that fundamental question. i would emphasize that was a go from merit stage and the court granted one question and it fairly includes what is the
correct. >> it fairly includes the broader arguments you raised. i am not suggesting that. on the other hand it included the viability question as well because that's what you talked about in that one sentence. >> and we have addressed that as well. what i would emphasize here is the merits arguments of the validity of roe and casey an original matter is there a viability rule based on the constitution are not that complicated or lengthy. the harder questions are should the court overrule and take that momentous step and that's why we devote a lot of space to that very important issue. we respect stari decis and presenting our best arguments for that is what we've done. >> on that matter the first issue you look at is whether or not the decision at issue was wrongly decided. i've never quite understood how you evaluate that. is it wrongly decided based on
the legal principles and doctrine when it was decided or in retrospect? because roe -- there are a lot of cases around the time of roe. not of that magnitude but the same type of analysis that went through exactly the sorts of things we today would say were erroneous but do we look at it from today's -- if we look at it from today's perspective it will be a long list of cases we'll say were wrongly decided. >> i would say mr. chief justice that you you can look both was it wrong at the time, has it been unmasked as wrong by new understandings and knowledge and any developments but i oh think my colloquy with barrett indicated the court won't have to look at much other -- many other areas. this is an area with a uniquely -- once controversial areas are quite settled, clear rules and don't have the considerations
against them. so really by overruling roe and casey the court won't have to go down that road and a lot of those decisions are quite readily groundable in history, tradition and the court's traditional factors. >> thank you. justice thomas, justice breyer? alito? justice sotomayor? >> i just wanted to get your quick sense of how your intermediate positions would work if basically the viability line was discarded and undue burden became the standard overall, a standard according to you is an unclear one. what that would leave the court with going forward. 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 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 do you think we should -- we would be able to deal with that or how would you counsel us to deal with that if the court were to go down that road? >> i think -- this is not to push back and i will answer your question. part of why we counseled to overrule full scale it's the only way the get rid of the problems you are alluding to. when you have the undue burden standard it is a very hard standard to apply. it is not objective. the court looks to the record in each case and what's going on. the court in casey itself this is not an undue burden. you couldn't say necessarily for certain that a certain number of weeks one place would be an undue burden and okay another place. that's the world we have under casey. so if the court upholds the law under the undue burden standard it would carry forward those features which -- i hope i answered your question.
that is one of the very strong reasons to go all the way and overrule roe and casey, your honor. >> justice gorsuch. >> i want to be clear about what you are arguing and not arguing and to be clear you are not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion. so i understand it, correct? >> correct. >> you are arguing the constitution is silent and neutral on abortion. constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps congress to resolve in the democratic process. is that accurate? >> we're saying it's left to the people, your honor. >> if you were to prevail, the
states, majority of states or states still could and presumably would continue to freely allow abortion, many states, some states would be able to do that even if you prevail under your view, is that correct? >> that's consistent with our view, your honor. it allows all interests to have full voice and many of the abortions we see in certain states that anybody to change their laws in a more restrictive direction. thank you, your honor. >> bill: justice barrett. >> i have a question that is a little bit of a follow up to one justice breyer was asking you. it's about stari decis has been about the benefits of that. i don't think anyone disputes that and no one can dispute because it is part of our doctrine and it is not a command and some circumstances in which overruling is possible. brown, bowers versus hard wick,
lawrence. but in thinking about that which is the core of this case, how should we be thinking about it? justice breyer pointed out that in casey and in some respects it was a different conception of that concept insofar as it explicitly took into account public reaction. is that a factor that you accept or are you arguing that we should minimize that factor and is there a different set of rules that is true that casey identified brown and west coast hotel as watershed decisions? but is there a distinct set of those considerations applicable to what the court might decide as a watershed decision. >> i don't think there should be a distinct set of considerations there, your honor. what i emphasized and just to make sure on the kind of legitimacy the court looking outward, i think casey was unusual in that regard. i have think it was a mistake and i think it's something in
conflict with the court's structure and approach as an independent branch looking to the constitution rather than without. and one reason why traditionally the court in some of its greatest overruling is not looking without. it is saying it was wrong the day it was decided. we know it's wrong today and led to all these terrible consequences and we should get rid of it. so i think that was an unfortunate break and i this i the court even if the court were to still look at legitimacy, i this i the court could very, very powerfully say our legitimacy derives from our willingness to stand strong and stand firm in the face of whatever is going on and stand for constitutional principle and follow our traditional factors to overrule when it is appropriate. >> thank you, counsel.
>> mississippi's ban an abortion is flatly unconstitutional under decades of precedent. mississippi asked the court to 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, it presents a high bar here. in casey this court carefully examined and rejected every possible reason for overruling roe holding that a woman's right to end a pregnancy before viability was a rule of law and a component of liberty that could not renounce. the question then is not whether roe should be overturned but whether casey was wrong to adhere to roe's
central holdings. second casey and roe were correct. for a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life altering consequences that brings is a fundamental deprivation of her liberty. preserving a woman's right to make this decision until viability protects her liberty while logically balancing the other interests at stake. third, eliminating or reducing the right to abortion will propel women backwards. two generations have now relied on this right and one out of every four women makes the decision to end a pregnancy. mississippi's ban would particularly hurt women with a imagine or health or life change during the course of a pregnancy. poor women who are twice as likely to be delayed in accessing care and young people
are 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 should affirm. >> counsel, i just have one question. i assume from your brief you are relying on an autonomy theory. >> both bodily integrity and the ability to make decisions related to family, marriage and childbearing, your honor. >> shortly some 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. in her case was post viability. so it doesn't fit in the facts
of this case. if she had ingested cocaine pre-viability and had the same negative consequences to her child, do you think the state had an interest in enforcing that law against her? >> the state may have, your honor. the state can certainly regulate to serve its interests in fetal life and women's health. it would deter women from seeking pre-natal care. >> the previability as well as post viability. >> no, the court has been clear that after viability, states can prohibit abortion except to save. >> no, i mean in my example of criminal child neglect. i understand your argument is about abortion. i am trying to look at the
issue of bodily autonomy and whether or not she also has a right to bodily autonomy in injecting an illegal substance and causing harm to a pre-viability fetus. those issues aren't supposed in the case and the case can regular before and after viability to preserve fetal life and the woman's health. there are other constitutional issues at stake. for instance in the ferguson case that states can't violate women's fourth amendment rights but not what this case is about. this is a ban on abortion the state concedes is weeks before viability and the court has been clear for 50 years the one thing that states cannot do a to take the decision completely away from the woman until viability. until that point it is her
decision to make given the unique physical demands of pregnancy and the life altering consequences of pregnancy and having a child. >> thank you. >> the point you made about the 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 you suggesting that the difference between 15 weeks and viability are going to have the same sort of impacts that you were talking about or as we were talking about in roe? >> yes, your honor, i believe they would because people who need abortion after 15 weeks are often in the most challenging circumstances. as i mentioned they are people who have perhaps had a major health or life change. a family illness, a job loss, a separation, young people or people who are on contraception or pregnant for if first time and delayed in recognizing the signs of pregnancy or poor women who have trouble accessing care and if they are denied the afwoilt make this
decision because there is a ban after 15 weeks they'll suffer all the consequences the court has talked about in the past. in fact, the data has been very clear over the last 50 years that abortion has been critical to women's equal participation in society. it has been critical to their health, to their lives, their ability to --- >> what kind of data is that? >> the brief of the economists in this case, your honor. it shows studies based on causal inference the legalization and not other changes have had benefits for women in society and those benefits are clear for education, for the ability to pursue a profession, for the ability to -- >> putting that data aside, if you think that the issue is one of choice, that women should have a choice to terminate
their pregnancy, that supposes that there is a point at which they have had the fair choice, opportunity of the choice. why would 15 weeks be an inappropriate line? viability it seems to me doesn't have anything to do with choice. but if it really is an issue about choice, why is 15 weeks not enough time? >> for a few reasons, first the state conceded some people won't be aible to get an abortion before 15 weeks. a reasonable possibility standard would be completely unworkable for the courts. it would be both less principled and less workable than viability and some of the reasons without viability there will be no stopping point. states will rush to ban abortion at virtually any point in pregnancy. mississippi itself has a six-week ban. defending with similar arguments as it is using to defend the 15-week ban and states have banned.
>> i would like to focus on the 15-week ban. that's not a dramatic departure from viability. it is the standard that the vast majority of other countries have. when you get to the viability standard, we share that standard with the people's republic of china and north korea. i don't think to be concerned if those are you share that particular time period. >> there are two questions there if i may. first that is not correct about international law. in fact, the majority of countries that permit legal access to abortion allow access right up until viability even if they have nominal lines earlier. for example, canada, great britain and most of europe allows access to abortion up until viability and it also doesn't have the same barriers in place.
>> what do you mean even if they have nominal lines earlier. >> they have a nominal line of 12 or 18 weeks but permit abortion after that for broad social reasons, health reasons, socio-economic reasons. if the court were to move the line substantially backwards and 15 weeks is nine weeks before viability, your honor, it is quite a bit backwards and may need to reconsider the rules around regulations. if it is cutting the time period to obtain an abortion in half those barriers will be much more important. >> thank you. >> i have a question about the safe haven laws. petitioner points out that in all 50 states you can terminate parental rights by relinquishing a child after abortion. 48 hours if i remember right. so it seems to me seen in that
light both roe and casey emphasize the burdens of parenting insofar as you and many of your -- focus on the ways in which forced parenting and forced motherhood with hinder women's access to the workplace and the consequences of parenting and the obligations of motherhood that flow from pregnancy. why don't the safe haven laws take care of that problem. it focuses the burden narrowly. there is without question an infringement on bodily autonomy which we have in other contexts that vaccines. however, it doesn't seem to me to follow that pregnancy and then parenthood are part of the same burden. so seems to me that the choice more focused would be between say the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at
the conclusion? why didn't you address the safe haven laws and why don't they matter? >> they don't matter for a couple of reasons. first, even if some of those laws are new since casey the idea a woman could place a child up for adoption has been true since roe so it is a consideration that the court already had before it when it decided those cases and adhered to the viability line. we don't just focus on the burdens of parenting. pregnancy itself is unique and poses physical demands and risks on women and has impact on all of their lives and ability to care for other children, other family members, their ability to work. in particular in mississippi, those risks are alarmingly high. 75 times more dangerous to give birth in mississippi than it is to have a pre-viability abortion and those risks are disproportionately threatening the lives of women of color. >> actually as i read roe and
casey they don't talk about adoption. passing reference. out of the obligations of parenthood. as i hear this answer are you saying the right as you conceive of it is grounded primarily in the bearing of the child and the caring of the pregnancy and not looking to professional opportunities and work life and economic burdens? >> no, i believe it's both. that is exactly how casey talked about it. it talked about the two strands of cases that supported the right. one was the strand of cases supporting bodily integrity and cases and the second was the strand of cases supporting decisional autonomy decisions related to childbearing, marriage and procreation decisions like griswold and both strands we are oef relying on here. >> may i ask you a question
about stare decisis? they argue the undue burden standard was not well-known to the law before that. and then they argue that the undue burden standard has evolved over time in ways the court has found difficult to agree upon in heller stat they point out in their briefs the court seemed to suggest a court should consider both the benefits and the burdens associated with the proposed restriction. in june medical more recently the court splintered on that same question whether benefits could be considered or only burdens. so the argument goes if this is proof putting aside all the other obviously difficult questions in the case, that the standard of self has proved difficult to administer and that is relevant to the stare
decisis analysis and i want to give you an opportunity to respond. >> the undue burden test is not at issue. that applies to regulations, not prohibitions. the state has conceded this is a prohibition. thats the title of this law is an act to prohibit abortion after 15 weeks and the only thing that is at issue in this case is the viability line. the viability line has been workable. the lower federal courts have applied it uniformly for 50 years, the fifth circuit had no difficulty striking down this law unanimously 3-0. it has been an exceedingly workable standard. if i may return to your question, a reasonable possibility standard would not be workable. it would boil down to an argument that states can prohibit a category of women from exercising their constitutional right merely because of the number of people in the category and that is
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