tv Craig Melvin Reports MSNBC December 1, 2021 8:00am-9:00am PST
standard of self-has proved difficult to administer and that is relevant to the analysis. and i want to give you an opportunity to respond. >> yes, your honor. the first point i'd like to make is the undue burden test is not at issue in this case. that is the test that applies to regulations, not prohibitions. and the state has conceded that this is a prohibition. that's the title of this law. an act to prohibit abortion after 15 weeks. the only thing at issue in this case is the viability line, and the viability line has been enduringly workable. the lower federal courts have applied it consistently and uniformly for 50 years, and the fifth circuit here below had no difficulty striking down this law unanimously, 3 -0. it's been an exceedingly workable standard. if i may return to your question, sir chief justice, a reasonable possibility standard would not be workable. it would ultimately boil down to an argument that states can prohibit a category of women
from exercising the constitutional right merely because of the number of people in the category and that's just not how constitutional rights work. a state would never say that it could ban religious services on a wednesday evening, for example, simply because most people could attend religious services on another night of the week. >> i wanted to -- that's helpful, i think. i want to make sure i understand what you're telling me. 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 understanding of what you're telling the court? >> no, your honor. -- >> you think that would be workable? >> i believe if i may clarify, i believe the undue burden has been workable for regulations. >> i understand that. if it were to apply -- if the court were to -- i thought this
was what you were saying in response, but maybe i'm mistaken. please correct me if i am. but what is your argument against applying the undue burden standard prior to viability? >> if the undue burden standard as this court laid out in casey which includes the viability line -- >> no, i'm asking -- i know -- we're fighting hypothetical here, counsel. all right? accept the hypothetical. hypothetically, if the court extends the undue burden standard to regulations prior to viability, would that be workable or would that not be workable in your view? >> without viability, it would not be workable, your honor. it would ultimately 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 thos not a workable standard, and it's not a constitutional -- >> i appreciate that clarification. thank you. >> i read your brief to say that
the only real options we have are to reaffirm roe and casey as they stand or overrule them in their entirety. you say that there are no half measures here. is that a correct understanding of the brief? >> your honor, it certainly the arguments of the state has presented is what we're responding to there. that all the state's arguments including their alternatives which are undue burden without viability, would be the equivalent of overruling casey and roe because the viability line is the central holding of the 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 the court drew the line at viability and roe and reaffirmed that in casey. that's something we have to take very seriously into
consideration, but suppose we were considering that question now for the first time. i'm sure you know the arguments 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. 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. and if i may make a few points to answer your question. first, i think the state views viability as arbitrary, because it discounts the woman's interest. >> but does a woman -- 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 continue? >> viability is a principled line, your honor, because in ordering the -- >> i'm trying to see whether it is a principle line. do you agree with me on that point? a woman still has the same interest in terminating her pregnancy after the viability line has been crossed? >> yes, yoush, but the court balanced the interest -- >> look at the interest on 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 can be resolved in a way -- >> that's what i'm getting at. what is the philosophical argument? the 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 acquires certain independent argument risices, but viability is dependent on medical technology and medical practice. it has changed. it may continue to change. >> the court had to set a line between conception and birth, and it logically looked at the fe us the's ability to survive separately as a legal line. it's verifiable and doesn't require the court to resolve the philosophical issues at stake. >> i just want to focus on stardecisis for a moment. i found my colleague's comments 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're popular or not
with the people. casey seemed to say we shouldn't base our decisions not only on that, but whether they're 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. it's sort of a super staridesis for what are regarded by many as the most erroneous decisions. do you think that is a category, or is it just normal? >> i think it is precedent on precedent. casey did the analysis for roe. the question before this court is whether that analysis was egregiously wrong. if i may answer your earlier question about whether viability was squarely at issue in casey, it clearly was, your honor. pages 869 to 871, the court
squarely addressed viability, because the government had made the argument that viability -- >> no, no, i appreciate that casey addressed it. but that's different than saying it was at issue. it said it was the central principal of roe because it was pretty much all that was left after they were done dealing with the rest of us. the regulations in casey had no applicability or not depending on where viability was. if they didn't say anything about viability, it's like what justice blackman said in -- when discussing among his colleagues, which is 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 they didn't have to address the line drawing at all in casey. >> i disagree. the undo burden test incorporates the viability line. that was what the court was
assessing the regulations against. whether they imposed a substantial obstacle in the path of a woman before viability. and if a prohibition like this law isn't a substantial obstacle, then nothing would be. the issue was squarely before the court, and, in fact, the court said at page 879 that in adopting the undue burden test, it was not disturbing the viability line. >> it's a very interesting question. i think justice barrett raised, too. it's usually just philosophical, but i think it has bite here. when i read casey, it's not just one on one. you know, two is greater than one. casey plus row is greater than -- they're making a point. that we're an institution, perhaps more than a court of appeals or a district court. it's hamilton's point. no sword.
and yet, we have to have public support, and that comes primarily, says 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 job, we use reason, we don't look to just what's popular. and that's where you've seen 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 water shed case, where people are really opposed on both sides, and they really fight each other is they are going to be ready to say no, you're just political. you're just politicians. and that's what kills us.
as an american institution. that's what they're saying. so we're looking at it for that, but we are looking too, and that they say is a reason why. a reason why when you get a case like that, you better be damn sure that the normal stari considerations overruling are really there in spades double, triple, quadruple, and then they go through and show their knowledge. okay? what's the paradox? maybe you think i've just made an argument that 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. i don't know if you ever have -- when that occurred to you. i don't want to overrule the -- i wouldn't want the court to overrule the staridecisis section of casey.
that's what i think is being brought up. maybe i haven't made it clearer, but i've tried to. >> yes, your honor. i think the point the court was making was the fact that some states may continue to enact laws in the teeth of the court's precedent has never been enough of a reason to overrule. and that's true for a number of decisions that the court has issued. the fact that some people continue to disagree with them is not a basis to discard that precedent. >> justice thomas? anything further? >> 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. it's the textual protection in the 14th amendment that a state
can't deprive a person of liberty without due process of law. and the court interpreted it the right to physical autonomy including the right to end a previability pregnancy. >> so it's all the above? >> well, that's how the court has interpreted the liberty clause for over 100 years in cases going back to myier, griswold, loving, lawrence. >> yeah, but i mean, all of those sort of just come out of lockner. so it's that we've dropped part of it. i understand what you're saying, but what i'm trying to focus on is to lower the level of generality or be more specific. we used to say it was a right to privacy that the court found in the due process, substantive due process clause. okay? or in substantive due process. i'm trying to get you to tell me what are we relying on now?
is it privacy? is it autonomy? what is it? >> i think it continues to be liberty and the right exists whatever level of generality the court applies. there was a tradition under the common law for centuries. in addition when it comes to decision related to family, marriage and childbearing, can court has done the analysis at a higher level of generality. that makes sense otherwise it would discriminate against the historical decisions against women. >> you just mentioned the common law. so let me ask you a couple questions about history. did any state constitutional provision recognize abortion was a right, liberty when the 14th amendment was adopted? >> no, but it was allowed under the common law for years. >> was there any judicial
decision or shortly or immediately after 196 that recognized abortion was a right, liberty or immunity? >> there were state high court decisions shortly before then talking about the ability to end a pregnancy before quickening. >> what's your best case? >> for the right to end a pregnancy, your honor? >> uh-huh. >> 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. and once the court recognizes that liberty interest deserves heightened protection, it needs to draw a workable line, and liability balances the interests at stake. >> the brief for the american historical association says that abortion was not legal before a 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 started to describe the common law at that point because of a discriminatory view that a woman's proper role was as a wife and mother, a view the constitution rejects, and that's why it's appropriate to do the historical analysis at a higher level of generality. >> in the case of that, can it be said the right to abortion is deeply rooted in the history and traditions of the american people? >> yes, it can. again, at the founding women were able to end their pregnancy under the common law, and in fact, this court specifically discussed casey as the decision based on history and tradition, and it note 19 specifically called out and relied on the conclusion that at the time of the founding and well into the 1800s, women had the ability to end the pregnancy. >> what was the principal source the court relied on in roe for its historical analysis. who was the author of that article? >> i apologize, your honor. i don't remember the author.
i know that the court spent many pages of the opinion doing historical analysis. there's also a brief on behalf of several key american historian associations that go through that history in detail. there's even more information now that supports roe's legal conclusions. >> thank you. >> i think the other side would say that the core problem here is that the court has been forced by the position you're taking and by the cases 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 and text and history. that the constitution needs more pro life 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 continue because the constitution is neutral, that this court should be scrupulously neutral on the question of abortion. neither pro choice nor pro life, but because they say the constitution doesn't give us the authority, we should leave it to the states. we should be scrupulously neutral on the question, and 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 the same arguments were made in casey and the court rejected them saying that this philosophical disagreements
can't be resolved in a way the woman has no choice in the matter. i don't think it would be a neutral position. the constitution provides a guarantee of liberty. the court interpreted it to include the ability to make decisions related to childbearing, marriage and family. women have an equal right to liberty under the constitution. if they're not 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 staridesisi and think about how to approach that here. there's been lots of questions picking up on justice barrett's questions and others. history helps. think about this as i've looked at it, and the history of how the court's applied it. when you really dig into it, history tells a somewhat different story than is assumed. you think about some of the most
important cases, the most consequential cases in this court's history. there's a string of them where the cases overruled precedent. brown v board. outlawed separate by equal. baker versus car which set the stage for one person, one vote. west coast hotel which recognized the state's authority to regulate business. miranda versus arizona which required police to give warnings about the right to remain silent . warrant v texas. map versus ohio held the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in vital of the 4th amendment. gideon versus waneright guaranteed the right to counsel.
in each of those cases, and that's a list, and i could go on, those are some of the most consequential, important in the court's history, the court overruled the precedent, and it turns out if the court in those cases had listened and they were presented with arguments in those cases adhere to precedent in brown v board. on west coast hotel. adhere to atkins and lockner. and if the court had done that in those cases, the country would be a much different place. i'm assuming you agree with most of the cases i listed there. the question on this is why if -- and i gree you disagree with if, but if we think that
the prior precedents are seriously wrong, if that, why, then, doesn't the history of this court's practice with respect to those cases tell us the right answer is actually a return to the position of neutrality, and not stick with those precedents in the same way all the other cases did. >> because the view that a previous precedent is wrong has never been enough for this court to overrule. and it certainly shouldn't be enough here when there's 50 years of precedent. instead, the court retired something else. a special justification, and the state doesn't come forward with any special justification. it makes the same arguments the court already considered and rejected in the analysis in casey and, in fact, there is nothing different. there is no less need today than 30 or 50 years ago for women to be able to make this fundamental decision for themselves about their bodies, lives, and health.
>> thank you. >> i want to ask a followup question. the chief was asking about the viability line and if that was the right place, the right line to draw. let's take it out of the question and imagine there's a state constitution that's identical to the 14th amendment 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. and so that state supreme court says we think that the right exists in an absolute sense that the state can not take away the right up to 27 weeks and after that adopts an undue burden standard. as a matter of first principals, is that line acceptable as a matter of constitutional law? >> your honor, it may be, but i think that the question in this case is whether a line is
obviously more principled or more workable than viability because of the con -- >> why? that's the roe framework. the trimester. why wouldn't that be workable if you pick a line and say 27 weeks, third trimester state's interests increase. i don't understand why 27 weeks is less workable than 24? >> i'm not trying to suggest it is. what i was trying to suggest is the viability line is a principled and workable line. to change it, there would have to be a new line that's more workable and principled and the line that the court has drawn actually -- >> but -- i'm asking as a matter of first principals. >> it is a matter of first principle, the viability line makes sense. >> as a matter of prudential judgment. it's not required. we could decide to be more protective and say 27 weeks under the second trimester? >> you could, but the viability line makes sense given the protection for liberty, because it comes from the woman's
liberty interest in resisting state control of her body. once the court recognizes that interest, it needs to draw a line as it does in other constitutional contexts, like the 4th and 5th majority. and the viability line makes sense. it focuses on the fe us the's ability to survive separately. that's an appropriate legal line. it's objectively verifiable and doesn't delve into philosophical questions about when life begins. >> thank you, counsel. >> mr. chief justice and may it please the court. for a half century, this court has correctly recognized that the constitution protects a woman's fundamental right to decide whether to end a pregnancy before viability. that guarantee that the state cannot force a woman to carry a pregnancy to term and give birth
has engendered substantial individual and society reliance. the real world effects of overruling roe and casey would be severe and swift. nearly half of the states already have or are 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 an unprecedented contraction of individual rights and a stark departure from principles. the court has never revoked a right that is so fundamental to so many americans and so central to their ability to be participate fully and equally in society. the court should not overrule the central component of women's
liberty. >> would you 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 14th amendment, but i think there's an interest in autonomy, liberty, and equality. i think it is the right to abortion, the right of a woman to be able to control without the state forcing to carry that baby to term. >> i understand you're talking about abortion here, but what is confusing is that we -- if we were talking about the second amendment, the 4th amendment, i know what we're talking about. because it's written.
it's there. what specifically is the right here that we're talking about? >> well, justice thomas, i think that the court and those other contexts with respect to the other amendments has had to articulate the bounds of the constitutional guarantees. it's done so through a variety of different tests that implement first amendment rights, second amendment rights, fourth amendment rights. i don't think there is anything unprecedented or anomalous about the right that the court articulated in roe and casey by defining the scope of the liberty interest by reference 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 its interest in protecting the fetal life at that point. >> so the right specifically is abortion? >> it's the right of a woman prior to viability to control whether to continue with a pregnancy, yes. >> thank you. general, i am interested in justice kavanaugh's long litany
of cases in which we've overthrown precedent, and we have, yet, 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 state. and through our incorporation of the 14th amendment of the state, vis-a-vis the individual. it's the federal government and the state's relationship to individuals. and i see the bill of rights including the 14th amendment as basically setting the limits, giving individual freedom to do certain things. and stopping the government from
intruding in those liberties. in those bill of rights. correct? >> of all of the decisions that justice avenue -- 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 of miranda to be warned was an individual right. correct? >> that's right. and i think that is a key distinction with the list of precedence. i think there are two key distinctions. the first is that in the vast majority of the 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 it matters because it goes straight to reliance interest. here the court would be doing the opposite.
it would be telling the women of america it was wrong. that actually the ability to control their bodies and perhaps the most important decision they can make about whether to bring a child into this world is not part of their protected liberty. i think that would come at tremendous cost to the reliance that women have placed on this right and on society reliance and what this right has -- zblb it is a good point. this may be my fault. i'm talking about pages 854 to 8 63 in the casey case. and i 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 perish. and you could add the gay rights cases as a third which would fit the criteria, but there are complex criteria that she's 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 you are saying they're overruling or not overruling in the sense meant there, calling for, special concern. they say in those, maybe i mentioned, too, wait a minute -- of course plessi was wrong when decided, but just a minute, also remember plessi said that separate but equal was a badge of inferiority. no. they said, it isn't. well, all you have to do is open your eyes and look at the south, my friend. and you will see whether it was or it 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 lockner with its other cases and pure just about pure laissez
faire, that we can run the country that way? i mentioned that because i want people to read those 15 pages with care. and that's why i said that. if you have anything to add to my plea to read it, please do. >> justice, i agree. i have read those pages and reread them many times. i think this is actually another key distinction from the cases that justice kavanaugh was referring to. that is, as i understand the passages in casey, the court carefully walked through every factor that this court focuses on. workability of -- and down the line, it found the case for reaffirming roe was overwhelming. in that situation when every factor that the court consultants to determine whether -- i think casey properly perceived that a decision to overrule nevertheless, perhaps based on conclusion that the justices
thought the case was wrongly decided in the first instance would run counter to the ability to function as a corner stone of the rule of law in this context. >> is it your argument that a case can never be overruled simply because it was e egregiously long? >> i think at the least the state would have to come forward with changed circumstance or some kind of materially new argument, and mississippi hasn't done so -- >> really? suppose plessi versus ferguson was reargued. nothing had changed. would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down, and now it should be overruled? >> it certainly was egregiously wrong on the day it was handed down, but what the court said to brown and casey was that what had become clear is that the factual premise that underlei the decision, was mistaken. and --
>> is it your answer that we need all the experience from 1896 to 1954 to realize the decision was wrongly decided. had it come before the court in 1897, should it have been overruled or not. >> i think it should have been, but i think the factual premise was wrong in the moment it was decided and the court realized that and clarified that. >> there are circumstances in which a decision may be properly overruled when it must be overruled simply because it was egregiously wrong at the moment it was decided? >> well, i think every other factor likewise would have justified overruling in that interest. actually, it would run count tore any notion of reliance that it had become an outlier in our understanding of fundamental freedoms. >> there was a lot of reliance on plessi. the south built up a whole society based on the idea of
white supremacy. so there was a lot of reliance. it was -- it was improper reliance. it was reliance on an egregiously wrong understanding of what equal protection means. but your answer is -- i don't -- i don't understand -- i 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? >> this court has never overruled in that decision just base oond conclusion that the decision is wrong. it has always found that they warrant overruling in that instance. and casey did that. it applied the satri desigh sis factors. if it means anything, it has to mean that kind of extensive consideration of all 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
can form a stable foundation of the rule of law. >> you've talked a number of times about the reliance interests here. i think i'd like you to say a little bit more about that. because sometimes when we talk about reliance interest, it's like there's a rule of law and you look at it and say oh, somebody will enforce my contract because of this rule. and it has a kind of grounded quality to it. and as casey talked about the reliance interests here, they're 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? >> well, there are multiple reliance interests here as i say casey correctly recognized. casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequence shl decision whether to have a child. people make decisions on reliance of having that kind of reproductive control. decisions about where to live,
what relationships to enter into. what investments to make in their jobs and careers. i think of an individual level, there has been profound reliance. it's servely the -- certainly the case that not every woman in america has had or wanted to exercise this right. but one in four american women have had an abortion. for those women, the right secured has been critical in ensuring they can control their bodies and their lives. i think there's a second dimension to it that casey also properly recognized. that's societal dimension. that's the understanding of our society even though this has been a controversial decision that this is a liberty interest of women. it's the case that not everyone agrees with roe v. wade, but just about everyone in america knows how the court has defined this concept of liberty for women and what control they have in the situation of an unplanned pregnancy. i think changing it would run counter to the understanding we have of what equality is
guaranteed to women in this country. >> it is certainly true that 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 can -- contraceptives contrary to your adversary's brief. in fact, 19 % of the women in mississippi are uninsured. they don't have money to pay for contraceptives. but their point in their brief was, you know, contraceptives, if you use them, the rate is small. how can there be real reliance. could you address that issue? >> of course. first, this is not a new
circumstance since roe and casey. contraceptives were in 1992 and they recognized it would deeply implicate the interests of women. even on the facts the state is mistaken here. a contraceptive failure rate in this country is about 10% using the common methods. that means women using contraceptives, approximately one in ten will experience an unplanned pregnancy in the first year. about half the women with unplanned pregnancies were on contraceptives in the month it occurred. i think the idea that contraceptives could make the need for abortion dissipate is just 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, justice. i think this is responsive to the questions being asked about. the impact of enforcing a
15-week bar in this case. the court has always looked at the issue by looking at the people for whom the restriction not for those who it's 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 especially true of women who are young or don't have -- haven't experienced a pregnancy before or their life circumstances change. they lose their job or their relationship breaks apart or they have medical complications. for many women, they don't have the resources to pay for it earlier. it takes time for them to raise the money or make the appropriate arrangements to be able to take time off work and travel and have child care. 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 and forcing them to continue with that pregnancy. >> thank you.
general, following up on that, would that argument be true in terms of viability as well? in other words, your discussion of the reliance interests in the ability of women and men to control their lives in reliance on the right to an abortion, the argument would not be as strong, i think you'll have to concede, given what we're talking about which is not a prohibition. it's a 15 -week line. is that right? >> yes. >> you have to hypothesize people who have planned their lives according to a 24 -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 pursing. i think here the force of the
viability line is that it's clearly demarcated the scope of a woman's protected liberty in this context. the state is not asking this court to replace it with a clear 15 -week line. they're asking the court to reverse the liberty interest altogether or leave it up in the air. if that happens immediately states with six-week wan bans and so on would seek to enforce those with no continued guidance of what the scope of the liberty guidance 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? and as far as viability goes, i don't see what that has to do with the question of choice at all. >> well, i think as casey emphasized and reaffirming the viability line, the court
justified that as having both a logical and biological justification that it marks the point in pregnancy when the fe -- >> that's what john heart heelly explained. it's not a reason viability is a good line. it's the in addition. >> it's focussed on the idea of fetal separateness. contrary to the state's arguments here at the time of the founding and for 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 sufficiently separate the states could deem to bar that. they align in that respect. >> you heard my question to counsel earlier about the woman who was convicted of criminal child neglect. what would be your reaction to
that as far as her liberty and whether or not the liberty interests that we're talking about extends to her? >> well, justice thomas, i have to confess that i haven't read the specific case you're referring to. if i understand the question you're posing, it sounds as though the state is seeking to regulate for a child that's been born that was injured while it was inside the womb. and i think that we are not denying that a state has an interest there. we're not denying that a state has an interest here either. roe recognized the states have interests that exist from the outset of pregnancy. 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 the pregnancy, not being forced to ensure childbirth and to have a child in the world. the state's arguments seem to ask this court to look only at its interests and ignore entirely the incredibly weighty interests of the woman on the other side.
>> thank you. >> i want to make sure i understand your response to the chief justice. if this court were to reject the viability line, do you see any other intelligible principal the court could choose? >> well, i think it would be critically important even if this court were to reject the viability line to reinforce and reaffirm that fundamental and profound -- >> i'm sorry for interrupting, but that wasn't my question. i understand that point fully. that is deeply clear to me. i understand your position. i'm just asking a question about whether you think there would be another alternative live the government would propose. we're not emphasized that if 15 weeks were approved, we've have cases about 10, and 8 and 6. my question is is there a line in there that the government believes would be principled or
not? >> i don't think there's any line that could be more principled than viability. the factors the court would have to think about are what is most consistent with precedent. what would be clear and workable and preserve the essential components of the liberty interest and viability checks all of those boxes and has the advantage as well as being a rule of law for 50 years. >> thank you. that's helpful. i appreciate it. >> 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, that there are two interests at stake. that there's also the interest in fetal life at stake as well, and in your brief, you say that the existing framework accommodates that's your word, both the interest 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 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 is the constitution say about that? and i just 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 acknowledged, why not -- why should this court be the arbiter rather than congress, the state legislatures, state supreme courts, the people being able to resolve this, and there will be
different answers in mississippi and new york. different answers in alabama than california, because there are two different entess at stake and the people in those states might value those interests somewhat differently. why is that not the right answer? >> justice kavanaugh, it's not the right answer because the court correctly recognized that this is a fundamental right of women. and the nature of fundamental rights is that it's not left up to state legislatures to decide whether to honor them or not. and it's true different rules would prevail throughout the country if this court overrules roe and casey. that 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're able to afford it or to attempt abortion outside the confines of the medical system or to have a child even though that was not
the best choice for them and their family. >> thank you. >> justice barrett? >> i have a followup to the question about reliance. i'm trying to nail down. and i asked this question, but i'm not sure i fully understand the rickelman the question too, but i'm not sure i fully understand the position. on pages 18 and 19 of your brief, you talk about relicense reliance interest. and i mentioned the safe haven laws, and it seems to me i fully understand the reliance centers, and then there are the more specific ones about a woman's access to abortion as a back up form of birth control in the event that contraception fails but what do you have to say to petitioner's argument that the reliance interest dos not
include the reliance interests of parenting and bringing a child into the world when that's not the best thing for her family or her career. >> i think the state is wrong about that and where it is wrong is it overlooks the consequences of forcing a woman, upon her, the choice of deciding whether or not to give a child up for adoption. and i think there is nothing new about the safe haven laws or the option of adoption. there is bodily integrity interests, but also the aton my interests as well. >> the reliance interests and the ability to terminate the pregnancy rather than the har mors rights. >> yes, it is incredibly
different. >> thank you, general. >> thank you mr. chief justice. first, picking up where you just left off, on the safe haven laws, the response is emphasizing the reason that women seek abortions. i emphasize safe haven laws first came in in texas. and you're correct that they relieve that huge burden. i also add that as to burdens during pregnancy, i emphasize that contraception is more accessible, affordable, and available than it was at the time. it serves the same goal of allowing women to decide if,
when, and how many children to have, and i also note that frankly the lowest cost abortion is $600 for the abortion. additional costs and fees according to my friends, respondents, and additional costs related to travel, time off of work, accommodations, and whether or not someone is uninsured or not the cost of contraception is consistently lower. i think you had it right when you said neutral. that is exactly right. this is a hard issue, and it involves interests here on both sides for everyone involved.
they have not decided how to decide these issues. they are engaging and recognizing the truth. that was the greatest decision that this court has reached. it inflicted tremendous damage on our country and it will take imnumerable human lives unless and until the court upholds it. >> thank you, the case is submitted. >> the honorable course is now adjourned until monday at 10:00. >> well, there it is.
you were just lining to live oral arguments before the supreme court on the mississippi abortion law, the challenges of roe vs. wade. we have the former acting u.s. solicitor general, he has argued dozens of cases in front of the supreme court. all msnbc legal analysts. neil, what stood out to you the most? did something surprise you? >> nothing really surprised me. i think there was a whole question would mississippi come in and frontally attack roe vs. wade. and the answer here is a full throated attack. and the rule that was it haunts the law, it is how son to the law and like. he got a lot of sympathy from the lower court to that
position. the chief justice while he has had pro-life indications in the past, or anti-choice. he is someone that has taken a more moderate position in recent years. and jtsz cavanagh is not part of this stuff. i think for both, the just reading the tea leaves here, i think he asked all three of the advocates the same question which is mississippi is saying this is contentious. why don't we just stay out of it. they have a different rule than mississippi, and the like, why is that so bad? the u.s. solicitor general, in attacking the law, i think had a great answer saying this is a fundamental right. we don't leave this up to vote
by majority that is this fundamental to women. i think the challengers had a tough day. i think there are some signs for optimism, but they're pretty rare if you're one of the challenges from mississippi today i think you're not feeling too good. >> i have to tell you it has been a privilege to sit with the three of you in the supreme court. because of your thoughts and actions. what would be, to capsule some of your reactions, when you were listening to this? >> this is hard not to thereon this not just as an attorney, but as a black woman. and thinking about the reality of just how hard it is today for a woman to actually get an
abortion. so much of this argument, with the exception of justice sotomayor and justice breyer bringing it in, focusing on what the access really is today. the supreme court recognized it as such as neil said. but what we heard from so many justices was not really an interrogation of whether or not there has been undue birdie, of what this really looks like and how it happens to the viability. you know, this is fundamentally when you hear this argument that mississippi, mississippi, the state that fought school integration -- the state that has so long fought against the fundamental rights of groups of other people is saying you know what? history, rely on history.
no matter how sectionist, racist, divisive, in deciding how much this should stand, and to hear justice aledo saying what did courts do in 1864, well you know what? as a black woman i certainly hope that is our our historical litmus test. and saying let the legislature sort it out, i heard that loud and clear, he is saying let's leave it up to the states, this is the same supreme court that opened the flood gates to voter suppression after spending 100 years fighting to gain access to the ballots. and so much voter suppression, but we're supposed to lead it to legislatures working because of
this supreme court's recent precedent coming out of south carolina. a former confederacy saying go back to your old ways and make it harder for people to vote. this is the reality of america today and this is the grounded and experiential reality. >> this is an obvious comparison to the issues going on with voting rights. i'm reminded of the decent in shelby county. and she wrote essentially this -- undercutting the voting rights act was like throwing away your umbrella in the middle of a rainstorm. there is much of that. women are able to have their children