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tv   The Faulkner Focus  FOX News  December 1, 2021 8:00am-9:00am PST

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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 not
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how constitutional rights work. a state would never say it could ban religious services on a wednesday evening for example because most people could attend religious services on another night of the week. >> that's helpful, i think. i want to make sure i understand what you are telling me, counsel. that if the court were to in this case step past viability and apply undue burden, the undue burden test to regulations prior to viability, you would agree with the other side, i think, that that's not a workable standard. is that a fair under standing what you are telling the court? you think it would be workable? >> if i made clarify the undue burden test has been workable for regulations. >> i understand that. if it were to apply. if the court -- i thought this is what you were saying in response to the chief justice but maybe i'm mistaken. please correct me if i am.
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what is your argument against applying the undue burden standard prior to viability? >> if the undue burden standard as the court laid out in casey which includes the viability line. >> i'm asking -- we're fighting the hypothetical here, counsel. accept the hype thetically the court were to extend the undue burden standard to regulations prior to viability would it be workable or would it not? >> without viability it wouldn't be workable, your honor. it would always come down to a claim that states can bar a certain category of people from exercising this right simply because of the number of people in the category and that's not a workable standard and it is not a constitutional standard. >> i appreciate that clarification. thank you. >> just to follow up on that. i read your brief to say that the only real options we have are to reaffirm roe and casey as they stand or to overrule
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them in their entirety. you say that quote there are no half measures here. is that a correct understanding of your brief? >> your honor, it certainly the arguments that the state has presented is what we're responding to there, which is that all of the state's arguments including their alternatives, undue burden without viability would be a equivalent of overrule casey and roe. the viability line is the central holding of those cases. casey mentioned it no fewer than 19 times and the court in june medical a year ago affirmed the viability line is the central holding of both casey and roe. >> you do emphasize that court drew the line in viability and roe and reaffirmed it in casey and something we have to take seriously into consideration. but suppose we were considering that question now for the first time. i'm sure you know the arguments
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about the viability line as well as i do probably better than i do. what would you say in defense of that line? what would you say to the argument that has been made many times by people who are pro-choice and pro-life, that the line really doesn't make any sense? that it is, as justice blackman himself described it, arbitrary. the wom -- if a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed, isn't that right? >> no, your honor. if i make a few points to answer your question. the state views viability as arbitrary because it completely discounts the woman's interest. >> upon reaching the point of viability, does not the woman have the same interest that she had before viability in being free of this pregnancy? that she no longer wants to
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continue? >> viability is the principled line your honor. >> i'm trying to see whether it is a principled line. do you agree with me at least on that point. a woman still has the same interest in terminating her pregnancy after the viability line has been crossed. >> yes, but the court balanced the interests in ordering the interests of the states. >> the other side. the fetus has an interest in having a life and that doesn't change, does it, from the point before viability to the point after viability? >> in some people's view it doesn't. but what the court said is those philosophical differences couldn't be resolved in a way. >> that's what i'm getting at. what's the philosophical argument. the secular philosophical argument for saying this is the appropriate line. there are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus
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acquires certain standards. it has changed and may continue to change. >> no, it is principled. in ordering the interest of state the court had to set a line between conception and birth and looked at the fetus's ability to survive separately as a legal line verifiable and doesn't require the court to resolve the philosophical issues at stake. >> i want to focus on stare decisis. i found justty breyer's comments quite compelling. i'm not quite sure how they play out in casey. it is certainly true that we cannot base our decisions on whether they are popular or not with the people. casey seemed to say we shouldn't base our decisions not only on that, but whether
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they are going to seem popular. and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the court should be in not departing from prior precedent. sort of a super stare decisis regarded as the most erroneous decision. do you think there is that category for is it just normal? >> i think it is precedent on precedent. casey did the stare decisis analysis on roe. the one before this court was if that was wrong. your earlier question about whether viability was squarely at issue in casey it clear was at pages 869 to 871 the court addressed viability. the government had made the argument that viability -- >> i appreciate that casey
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addressed it but that's different than saying it was at issue. it said it was the central principle of roe 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 where viability was. they applied throughout the whole range, period. they didn't say anything about viability. like what justice blackman said in when discussing among his colleagues, good reason not to have papers out that early, is that they don't have to address the line drawing at all in roe and didn't have to address the line drawing at all in casey. >> i disagree with that, your honor. the undue burden test incorporates the viability line. that is what the court was assessing the regulations whether they imposed a substantial obstacle in the path of a woman before viability and if a prohibition
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isn't a substantial obstacle nothing would be. the issue was before the court and the court said at page 879 in adopting the undue burden test it was not disturbing the viability line. >> a very interesting question. i think justice barrett raised, too. usually just philosophical but i think it has bite here. when i read casey, it is not just one-on-one, two is greater than one. casey plus roe is greater than roe. they are making a point that we are an institution perhaps more than a court of appeals. or a district court. it is hamilton's point. no purse, no sword, and yet we have to have public support and that comes primarily, says
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casey -- i wonder if it was o'connor who wrote that. i don't know. but it comes primarily from people believing that we do our jobs, we use reason, we don't look to just what's popular and that's where you see the paradox. but the problem with the super case of which we've heard three mentioned, the problem with the super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other is they will be ready to say no you're just politicians, you're just political and that's what kills us as an american institution. that's what they are saying. so we are looking at it for that. we are looking to and that they
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say is a reason why -- a reason why when you get a case like that you better be damn sure that the normal stare is there in spades and they go through and show the analysis. okay? what's the paradox? maybe you think i've just made an argument there isn't one. but really, in my head, i'm thinking i'm not sure. there may be one. and i don't know if you've ever thought about this or if you've ever -- when that occurred to you i don't want to overrule the -- i wouldn't want the court to overrule the stare decisis section of casey and that's what is being broad up. i've tried to make it clearer. >> the point the court was making was that the fact that
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some states may continue to enact laws in the piece of the court's precedence has never been enough of a troen to overrule and true for a number of decisions the court issued. the fact that some people continue to disagree with them is not precedent to discard it. >> back to my original question. if -- i know your interest here is in abortion. i understand that. but if i were to ask you what constitutional right protects the right to abortion, is it privacy, is it autonomy? what would it be? >> it's liberty, your honor, the protection in the 14th amendment that a state can't deprive a person of liberty without due process of law and the court has interpreted liberty to include the right to
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make a family decisions and the right to physical autonomy including the right to end a pre-viability pregnancy. >> so it's all of the above. >> that's how the court interpreted the liberty clause for over 100 years in cases going back to meyer, griswald, carey, loving, lawrence. >> all of those come out of lochner so we've dropped part of it. so i understand what you have are saying but what i'm trying to focus on is if we -- is to lower the level of generality or be a little more specific. in the old days we used to say it was a right to privacy the court found in the due process, substantive due process clause, okay, or in substantive due process. what are we relying on now? is it privacy? is it autonomy? what is it? >> it continues to be liberty and the right exists whatever
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level of generality the court applies. there was a tradition under the common law for centuries of women being able to end their pregnancies. in addition when it comes to decisions related to family, marriage and childbearing the court has done the analysis at a higher level of generality and it makes sense. otherwise the constitution would reinforce the historical discrimination against women. >> justice breyer. justice alito. >> you mentioned the common law. let me ask you about history. did any state constitutional provision recognize abortion was a right, liberty or immunity in 1868 when the 14th amendment was adopted? >> no, but it had been allowed under the common law for many years. >> does any judicial decision at that time or shortly or immediately after 1868 recognize that abortion was a right, liberty or immunity? >> there were state high court
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decisions shortly before then talking about the ability of women to end a pregnancy. >> what is your best case? >> for the right to end a pregnancy, your honor? allowing a state to take control of a woman's body and force her to undergo the physical demands, risks and life altering consequences of pregnancy is a fundamental deprivation of her liberty. once the court recognizes it deserves protection it needs to draw a workable line and viability is the line that balances the interests at stake. >> a brief for the american historical association says abortion was not legal before quickening in 26 out of 37 states at the time when the 14th amendment was adopted. is that correct? >> that is correct because some of the states had start evidence to discard the common
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law with a view a woman's role was wife and mother and why it's appropriate to do the historical analysis at a higher level of generality. >> can it be said the right to abortion is deeply rooted in the history and traditions of the american people? >> yes, it can. again founding women were able to end their pregnancy under the common law and this court in glux berg discussed casey as a decision based on history and tradition and note 19 called out and relied on roe's conclusion that at the time of the founding and well into the 1800s women had the ability to end a pregnancy. >> what was the principle source court relied on for roe historical analysis. who was the author of that article. >> i don't remember the author. i know the court spent many pages of the opinion doing a historical analysis and a brief on behalf of several key
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american historian associations that go through that history in detail because there is even more information now that supports roe's legal conclusions. >> thank you. >> i think others would say the court has had to pick sides on the most contentious social debate in american life. and to do so in a situation where they say that the constitution is neutral on the question of abortion, the text in history. that the constitution is neither pro-life nor pro-choice on the question of abortion. and they would say therefore it should be left to the people, to the states, or to congress. and i think they also then
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continue because the constitution is neutral, that this court should be neutral on the question of the abortion, neither pro-choice or pro-life. but because they say the constitution doesn't give us the authority we should leave it to the states and we should be very neutral on the question and that they are saying here, i think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue. so i think that's at a big picture level their argument. i want to give you a chance to respond to that. >> yes, a few points if i may. first those very same arguments were made in casey and the court rejected them saying that the philosophical disagreements can't be resolved in a way a woman has no choice in the matter and second i don't think it would be a neutral position. the constitution provides a
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guarantee of liberty. the court has interpr*eted that liberty to include the ability to make decisions related to childbearing, marriage and family. women have an equal right to liberty under the constitution, and if they aren't able to make this decision, if states can take control of women's bodies and force them to endure months of pregnancy and childbirth then they will never have equal status under the constitution. >> and i want to ask a question about stare decisis and to think about how to approach that here because there have been lots of questions picking up on justice barrett's questions and others. history helps think about stare decisis as i've looked at it. and the history of how the courts applied stare decisis. when you dig into it history tells a somewhat different story than is sometimes assumed. think about some of the most important cases, the most than
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constitutional cases in this court's history where the cases overruled precedent. brown versus board. baker versus carr which set the stage for one person, one vote. west coast hotel which recognized the state's authority to regulate business. miranda versus arizona that required police to give warnings about the right to remain silent and to have an attorney present to suspects in criminal custody. lawrence versus texas said the state may not prohibit same sex conduct. knapp versus ohio state criminal prosecutions to exclude evidence obtained in violation of the fourth amendment. gideon versus wainwright which guaranteed the right to counsel in criminal cases. a case that recognized the constitutional right to same-sex marriage. in each of those cases. that's a list and i could go on. those are some of the most
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important in the court's history the court overruled precedent and turns out if the court in those cases had listened and presented with arguments in those cases adhere to precedent in brown versus board. adhere to precedent on west coast hotel and adhere to atkins and lochner and if the court had done that in those cases, the country would be a much different place. so i assume you agree with most, if not all the cases i listed there where the court overruled the precedent. so the question on stare decisis is why if -- i know you disagree with what i'm about to say in the if. if we think that the prior precedents are seriously wrong, if that, why then doesn't the
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history of this court's practice tell us the right answer is the return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn't? >> because the view that a previous precedent is wrong has never been enough for this court to overrule. it certainly shouldn't be enough here when there is 50 years of precedent. the court has required something else. a special justification. the state doesn't come forward with any special justification and makes the same exact arguments the court already considered and rejected in its stare decisis analysis in casey and there is nothing different. there is no less need today than 30 years ago or 50 years ago for women to be able to make this fundamental decision for themselves about their bodies, lives and health. >> thank you. >> justice barrett. >> i want to ask you a follow-up question. the chief was asking about the
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viability line and if that was the right place, if that's the right line to draw. let's take it out of the question of stare decisis and imagine that there is a state constitution that is identical to the 14th assembly due process clause. and a state supreme court has to decide as a matter of state constitutional law what the scope of an abortion right is. and the second trimester ends at 27 weeks. so that state supreme court says we think that the right exists in an absolute sense the state cannot take away the right up to 27 weeks and after that adopts and undue burden standard. as a matter of first principle is that line acceptable as a matter of constitutional law? >> your honor, it may be but i think the question in this case is whether a line is more principled or workable than viability because of the stare decisis content. >> that's the roe framework.
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why wouldn't it be workable if you say the end of the second trimester 27 weeks, third trimester state interests increase. i don't understand why 27 weeks is less workable than 24. >> what i was trying to suggest is a viability line is a workable line. to change it there is a new line for principle had and workable. >> that's stare decisis. i ask as a matter of first principle. >> the viability line makes sense. if the state -- >> it is not constitutionally -- we could say 27 weeks and the second trimester. >> you could but the viability line makes sense given the protection for liberty because it comes from the woman's liberty in resisting state control of her body. once the court recognizes the interest it needs to draw a line as it does in many other
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constitutional contexts like the fourth and fifth amendment. the viability line makes sense because it focuses on the fetus's ability to survive separately. an appropriate legal line and doesn't delve into philosophical questions about when life begins. >> thank you, counsel. >> general. >> mr. chief justice and may it please the court. for a half century this court has correctly recognized the constitution protects a woman's right to decide whether to end a pregnancy before viability. that guarantee the state cannot force a woman to carry a pregnancy to term and give birth has societal reliance. the real world effects of overrule roe and casey would be
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severe and swift. nearly half of the states already have or expected to enact bans on abortion at all stages of pregnancy. many without exceptions for rape or incest. women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health, and the course of their lives. if this court renounces the liberty interest recognized in roe and reaffirmed in casey it would be a contraction of individual rights and the court has never revoked a right that is so fundamental to so many americans and so central to their ability to participate fully and equally in society. the court should not overrule this central component of women's liberty. >> general, would you
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specifically tell me specifically state what the right is? is it specifically abortion? is it 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 interests in autonomy, bodily integrity, liberty and equal tee. i think it is specifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy whether to carry that baby to term. >> i understand we are talking about abortion here. but what is confusing is that we -- if we were talking about the second amendment, if we're talking about fourth amendment, i know what we're talking about because it's written. it is there. what specifically is the right here that we are talking about? >> well justice thomas, i think
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that the court in those other contexts with respect to those other amendments have had to articulate what the text means and the bounds of the constitutional guarantees and done so through a variety of different tests that implement first amendment rights, second amendment rights and fourth amendment rights. i don't think there is anything unprecedented about the right that the court articulated in roe and casey and the way it implemented that right by defining the skoefpt liberty interest by reference to viability and providing that's the moment when the balance of interest tips and when the state can act to prohibit a woman from getting an abortion based on protecting fetal life. >> the right is abortion. >> the right of a woman to control whether to continue with a pregnancy, yes. >> thank you. >> i am interested in justice kavanaugh's long litany of cases where we've overruled precedent.
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you did call this unprecedented. as i see the structure of the constitution, the body of it is the relationship of the three branches of government and then there is the relationship of the federal government to the states and through our incorporation of the 14th amendment of the state vis-a-vis the individual. it is the federal government and the state's relationship to individuals. and i zoo -- receive the bill of rights including the 14th amendment as setting the limits giving individual freedom to do certain things. and stopping the government from intruding in those liberties, in those bill of rights, correct? of all of the decisions that
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justice kavanaugh listed, all of them virtually, except for maybe one, involved us recognizing and overturning state control over issues that we said belonged to individuals. the right in miranda to be warned was an individual right, correct? >> that's right, justice sotomayor and it is a key distinction with the list of precedents. i think there are two key distinctions. the first is in the vast majority of those cases the court was taking the issue away from the people and saying it had been wrong before not to recognize a right. i think that matters because it goes straight to reliance interests. here the court would be doing the opposite. it be telling the women of america it was wrong. the ability to control their bodies and perhaps the most important decision they can make whether to bring a child
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into this world is not part of their protected liberty. i think that would come at tremendous cost to the reliance women have placed on this right and on societal reliance and what it meant. >> that is a good point and it may be my fault. i'm talking about pages 854 to 863 in the casey case and i have already used up too much time. i can't read those pages out loud but they do not include the list that justice kavanaugh had. they do include two. one is brown and the second one is west coast hotel versus parish and you could add the gay rights cases as a third which would fit the criteria. there are complex criteria that she is talking about that link to the position in the rule of law of this court. so all i would say is you have to read them before beginning
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to say whether they're overruling or not overruling in the sense meant there calling for special concern. now they say in those maybe i mentioned two. wait a minute, of course plessey was wrong when decided but wait a minute. they said separate but equal is a badge of infear or tee. all you have to do is open your eyes and look at the south, my friends and you will see whether it was or wasn't in 1954. and they made a similar point. they said are you going to sit here in the middle of the depression and tell me that lochner with its other cases and pure -- just about pure -- that we can run the country that way? i mention that because i want people to read those 15 pages
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with care. and that's why i said that. if you have anything to add to my plea to read it, please do. >> i agree completely and read the pages and reread them many times and it is another key distinction from the cases justice kavanaugh was referring to. that is as i understand the passages in casey the court carefully walked through each and every stare decisis factor this court focuses on. workability of the viability rule. legal and factual development and critical reliance interest and down the line found the case for reaffirming roe was overwhelming. in that situation when every factor the court consults to determine whether to retain precedent counsel is in favor of retaining it, i think casey properly perceived that a decision to overrule nevertheless based on the conclusion the justices thought the case was wrongly decided in the first instance would run counter to the ability of stare decisis to function as a cornerstone of the rule of law in this context.
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>> is it your argument that a case can never be overruled simply because it was wrong? >> i think that at the very least the state would have to come forward with some kind of materially changed circumstance or some kind of new argument and mississippi hasn't done so. >> suppose plessy was argued and nothing changed. you could say it was a wrong decision on the day it was handed down and now overreeled. >> it was very wrong on the day it was handed down but what the court said in analyzing that to brown and casey was that what had become clear is that the factual premise that underlay the decision. -- >> is it your answer that we need all the experience from
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1896 to 1954 to decide if plessy -- should it have been overruled or not? >> it should have been overruled but i think the factual premise was wrong in the moment it weigh was decided. >> there are circumstances where a situation where it must be overruled simply because it was very wrong at the moment it was decided, correct? is that correct? >> it would be justified overruling that in that interest and counter to any notion of reasonable reliance. not a workable rule. it had become an outlier in our understanding of fundamental freedom. >> there was a lot of reliance on plessy. the south built up a whole society based on the idea of white supremacy. there was a lot of reliance. it was improper reliance and
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reliance on a very wrong understanding of what equal protection. 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 of that decision and the time when the court is called upon to consider whether it should be overruled, yes or no, can you give me a yes or no answer on that. >> this court no has never overruled in that situation just based ton conclusion the decision was wrong. it always applied stare decisis and they warrant overruling. casey applied the stare decisis factors. if stare decisis is to mean anything it has to mean that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent itself is an additional layer of precedent that needs to be relied on and conform a stable foundation of the rule of law. >> you've talked a number of times about the reliance interests here and i would like
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you to say a little bit more about that because sometimes when we talk about reliance interest it is like there is a rule of law and you look at it and say somebody will enforce my contract because of this rule. and it has a very kind of grounded quality to it. and as casey talked about the reliance interests here, they are a little bit more airy and i just wanted to get your sense of what are the reliance interests here? and how do they cash out on the ground? >> there are multiple reliance interests here as i think casey correctly recognized. pointed to the individual reliance of women and their partners able to organize their lives and make important life decisions against the back drop of having control over this very big decision whether to have a child. people make decisions and rely upon having that kind of reproductive control. where to live. what relationships to enter into. what investments to make. on an individual level there has been profound reliance and
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certainly the case that not every woman in america has needed to exercise this right or wanted to but one in four american women have had an abortion. for thoefs women the rights secured by roe and casey are critical in insuring they can control their bodies and lives. i have think there is a second dimension to it that casey also properly recognized and that's the societal dimension. that's the understanding of our society even thoef -- though this has been a controversial decision. every person in america knows what this court held and know how the court defined this concept of liberty for women and what control they'll have in the situation of a unplanned pregnancy. for the court to reverse course now i think would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country. >> it is certainly true that
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there can be some planning by some people about pregnancy. people who are raped don't have a choice whether it's by an outsider or their own husband and not everybody can afford contraceptives. many women in mississippi don't have money to pay for contraceptives. but their point in their brief was contraceptives, if you use them, the failure rate is very small, etc., etc. how can there be real reliance? can you address that issue? >> first, this is not a new
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circumstance. contraceptives existed. even on the facts the state is mistaken here. contraceptive failure rate is 10% using the most common methods. women using contraceptives 1 in 10 will experience an unplanned pregnancy in the first year of use alone. half the women who have unplanned pregnancies were on contraceptives in the month it occurred. the idea that contraceptives could make the need for abortion dissipate is contrary to the factual reality. >> you also mentioned, or maybe it was your co-counsel, that life changes for women after 15 weeks. >> that's exactly right. i think this is responsive as well to the questions that the chief justice was asking about. in particular the impact of enforcing a 15-week bar in this case. the court has always looked at that issue by looking at the people for whom the laws of restriction not for whom it is
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irrelevant. why would women need access to abortion after 15 weeks and what's the effect on them? there are any number of women who can't get an abortion earlier. they don't realize they're pregnant. that's true of women who are young or don't-haven't experienced a pregnancy before or life circumstances change. they lose their job or their relationship breaks apart or have medical complications or for many women they don't have the resource evers to pay for it earlier. ist takes time for them to raise the money or make the appropriate logistical arrangements to take time off work and travel and have childcare and for all those women in this category who 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 interests in forcing them to continue with that pregnancy. >> thank you. >> general, following up on
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that, would that argument be true in terms of viability as well? in other words, your discussion of the reliance interests and the ability for women and men to control their lives in reliance on right to an abortion, the argument would not be as strong, i think you will have to concede, given what we're talking about, which is not a prohibition, it is a 15-week line. is that right? you have to hypothesize people who have planned their lives according to a 24 or whatever week limit it is but not a 15-week limit on abortion, right? >> i don't think the court has ever analyzed reliance with that kind of parsing. here the force of the viability line is it is clearly demarcated to the scope of a woman's protected interest in the context.
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the state isn't asking the court to replace it with a clear 15 week line for the right. they're asking the court to reverse the liberty interest all together or leave it up in the air. if that were to happen immediately states with six and eight weeks and 10 week bans would seek to enforce those with no continued guidance what the skoefpt liberty interest is going forward. >> the thing that is at issue before us today is 15 weeks. and i just wonder what the strength of your reliance arguments, which sounded to me like being based on a total prohibition, would be if there isn't a total prohibition. as far as viability goes, i don't see what that has to do with the question of choice at all. >> i think as casey emphasized in reaffirming the viability line the court justified that as having a biological justification that marks the point in pregnancy when the fetus is capable of life.
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>> it was a complete -- the definition of viability. not a reason that viability is a good line. >> it's focused on the idea of fetal separateness and a line that accords with the history and tradition of abortion regulation contrary to the state's arguments here at the time of the founding and most of early american history women had an ability to access abortion in the early stages of pregnancy and it was only when the fetus was deemed separate the states could -- it aligns with history and tradition in that respect with the viability line. >> justice thomas. >> you heard my question to counsel earlier about the woman who was convicted of criminal child neglect. what is your reaction to that as far as her liberty and whether or not the liberty
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interest that we're talking about extends to her? >> i have to confess i have haven't read the spifs i can case you are referring to. if i understand the question you were posing, it sounds as though the state is seeking to regulate for a child that has been born that was injured while inside the womb. i think that we are not denying that a state has an interest there. not denying a state has an interest here, either. roe says states have an interest. with respect to this specific right to abortion there are also profound liberty interests of the woman on the other side of the scale and not being forced to continue with a pregnancy or forced to endure childbirth and to have a child in the world. the state's arguments seem to ask the court to look only at its interests and ignore the weighty interests of the woman on the other side. >> justice gorsuch, anything further? >> i want to make sure i understand your response to the
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chief justice. if this court would reject the viability line do you see any other intelligible principle that the court could choose? >> i think that it would be critically important even if this court were to reject the viability line to reinforce and reaffirm the fundamental and profound liberty interest here. >> that wasn't my question. i understand that point fully by the end of this argument. that is deeply clear to me, i understand your position. i am just asking a question whether you think there would be another alternative line that the government would propose or not. you have emphasized if 15 weeks were approved we would have cases about 12 and 10 and 8 and 6. so my question is there a line in there the government believes it would be principled or not. >> i don't think there is any line more principled than viability. the factors the court would
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have to think about is what is most consistent with precedent and clear and workable and who wha* would preserve the essential components of the liberty interests. viability checks the boxes and has the advantage of being a rule of law for 50 years. >> thank you, that's helpful. >> justice kavanaugh. >> you make a very forceful argument and identify critically important interests that are at stake in this issue, no doubt about that. the other side says, though, there are two interests at stake. that there is also the interest in fetal life at stake as well. in your brief you say that the existing framework accommodates, that is your word, both the interests of the pregnant woman and the interest of the fetus and the problem i think the other side would say and the reason this issue is hard is that you can't
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accommodate both interests. you have to pick. that's the fundamental problem. and one interest has to prevail over the other at any given point in time. and that's why this is so challenging, i think. and the question then becomes what does the constitution say about that? and i want to get your reaction to what the other side's theme is. i've mentioned it in my prior questions. when you have those two interests at stake and both are important, as you acknowledge, why not -- why should this court be the arbiter rather than congress, the state legislatures, the state supreme court court and people being able to resolve it. different answers in alabama than california because there
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are two different interests at stake and the people in those states might value those interests somewhat differently. why is that not the right answer? >> justice kavanaugh it is not the right answer because the court correctly recognized that this is a fundamental right of women and the nature of fundamental rights it is not left up to state legislatures to decide whether to honor them or not. different rules would prevail throughout the country. it would mean women in those states who are refusing to honor their rights and who are forcing them to continue to use their bodies to sustain a pregnancy and then to bring a child into the world will have no recourse other than to travel if they are able to afford it or to attempt abortion outside the confines of the medical system or have a child even though it wasn't the best choice for them and their family. >> thank you. >> justice barrett. >> a follow up to justice
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kagan's question about reliance. i asked this question of the other counsel too but i am not sure i understand the position. on pages 18 and 19 of your brief you talk about reliance interests and you quote some of the language from casey about a woman's ability to participate in the social and economic life of the nation. i mention the safe haven laws to the attorney and i fully understand the reliance interests there, the area justin kagan was referring to and the more specific ones. about a woman's access to abortion as a backup in the event contraception fails she need not bear the burdens of pregnancy. what do you have to say to petitioner's argument that those reliance interests do not include the reliance interests of parenting and bringing a child into the world when it is maybe not the best thing for her family or career? >> i think the state is wrong about that and i think where
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the analysis goes wrong in reliance on the safe haven laws is overlooking the consequences of forcing a woman upon her the choice of having to decide whether to give a child up for adoption. that itself is its own monumental decision for her. there is nothing new about the safe haven laws or nothing new about the availability of adoption as an attorney. roe and casey took account of that fact and the bodily integrity interests we refer to but the autonomy interests retain in force as well. >> the reliance interests and the right to be able to choose to terminate the pregnancy rather than having to terminate the parental rights. >> that's part of it yet. for many women it is a very difficult choice but one this court for 50 years has recognized must be left up to them based on their beliefs and their conscience and what's
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best for the course of their lives. >> i would like to do my best to make three points. first picking up where you just left off justice barrett on safe haven laws. the respondents in this case have emphasized parenting reasons by the lead reason women seek abortion. safe haven laws came into existence in 1999 in texas. you are correct they relieve that huge burden. i would also add as to burdens during pregnancy, i would emphasize that contraception is more accessible and affordable and available than it was at the time of roe or casey. it serves the same goal of allowing women to decide if, when and how many children to have and i would also note just frankly the lowest cost
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abortion is $600 for the abortion. additional costs and further fees according to my friends and respondents additional costs related to travel, time off work, accommodations. all those sorts of things. whether somebody is uninsured or not the cost of contraceptions are less than those. number two, i think justice kavanaugh you had it right when you used the term skooup laosly neutral. i think it's a good description what we're asking for here. the problem and value that evaded the court and continue to evade under roe and casey but this is right. it is a hard issue that involves -- i would emphasize as you said there are interests on both sides. interests for everyone involved. this is unique for the woman, unique for the unborn child, too, whose life is at stake in all these decisions and unique for us as a society and how we decide if the states get to legislate on this issue how to decide and weigh these very
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monumental issues. in closing i would say in the ferguson case the justice emphasized there is no caste system here. it took 58 years for the court to recognize that. the greatest decision this court reached. we are oef running on 50 years of roe. it is a very wrong decision that inflicted tremendous damage on our country and continue to do so and take human lives until the court overrules it. we want the court to uphold the state's law. >> the case submitted. thank you. >> the honorable court is now adjourned until monday next at 10:00. >> harris: we watched history in the making perhaps one way or the other, we don't know which way the justices will decide on the mississippi law
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which bans abortions after 15 weeks. what you saw in its entirety and it's important to see it. maybe one day we'll have cameras inside the u.s. supreme court as america gets to see discourse where people don't always agree and it was civil and educational and it was critically important. i'm harris faulkner. the last few minutes of "the faulkner focus" here. i want to bring in andy mccarthy former assistant ution us attorney and fox news attorney. jonathan turley constitutional law professor. gentlemen, the highlights from each of you. jonathan, you first. >> this was a fascinating oral argument and what was most interesting is as we expected chief justice john roberts appeared to be probing the center of the court as to an option other than overturning roe. what i thought was most interesting was kavanaugh. i think a lot of pro-choice supporters hoped that he might as he often does the end to
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follow roberts. he was very hard hitting in a lot of his questions about the basis for roe and also some substantial reductions on roe and casey. so i think the pro-choice folks will be disappointed in what they heard from kavanaugh today. >> harris: why is that? >> it seems like kavanaugh was really pressing again on the basis for roe and also whether they should keep the standard of the viability line. he was really delivering some hay makers to the pro-choice side as to some of their claims. barrett did the same thing in saying you often talk about the burden of raising a child but isn't it true you can put up the child for adoption? is it really fair to put that on the scale as we balance the interests in this case? she returned to that at least three times and i think it's
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quite notable. >> harris: you know, andy, i want to know your thoughts on the highlights about this particular issue. something that jonathan just touched on and it was said so many times during the last almost two hours of the court arguments on this case. so the viability line that exists in roe versus wade, casey is that 24 weeks. mississippi says viability for life now because of science moving us forward should be earlier than that, 15 weeks. talk to me about what really was highlighted to you. what was important about that viability line? >> i think what stuck out to me about that is that chief justice roberts suggested that the entire roe was built on sand. viability was not something that was argued by either of the sides in roe. it was something basically that
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justice harry blackman, the author of roe, came up with as a measure that he sort of pulled out of the air in order to accommodate the competing interests and then flashing forward to casey, in casey what hadn't even been argued in roe suddenly became the central feature of roe. and i think what roberts was underscoring here is that this whole thing has been built on really a very, very shaky, almost non-existent foundation, which does on one hand you would say maybe that means you should toss the whole thing. but i agree with john that where roberts seemed to be heading was to say look, we have a very narrow question before us here. much more narrow than the parties seem to be arguing. is 15 weeks an okay regulation? >> harris: or is any an okay
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regulation? >> right. >> harris: let's get into that a little bit about -- it sounded like justice alito was talking almost like the irrelevance of a viability law. if you uphold the mississippi law will it be 12 weeks, 9 weeks. that came up several times. >> you are right. justice gorsuch at the end made that same point and i think look, viability, even though the court pressed on this many times, is simply not a standard that is stable because it will always be challenged by medical technology. the point is, there isn't any other alternative that wouldn't show that the court is just legislating and i think that was why for example the solicitor general fought so hard against moving off viability as the standard. >> harris:
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thank you for explaining that because i think it's important for people to know. i want to hit one more, we have shannon bream in the courtroom standing by. before we go i want to hit one more with you particularly jonathan, specifically what today was about. you heard andy talking about the narrow scope of the issue before the court and trying to keep everyone on that one issue. the 15 weeks, the 24 weeks in roe vs. wade, what's happening in mississippi, stay on mississippi. but certainly there is this idea that is it possible today was about overturning legal abortion in this country? and the way i understand it and certainly the way it was laid out in court today, that wasn't the issue. it really was all about mississippi but if you watch this were there telltale signs of what is to come? >> i think it's very important to keep in mind that if roe were


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