I can't keep quiet. I can't keep quiet.
This is Rumble with Michael Moore and I am Michael Moore.
Thank you, everybody for tuning. Hang in here today to my
podcasts. I'm going to do something on
today's podcast that I've ever done before I listen to a lot of
podcasts. I don't think I've heard anybody
do this. It's not.
Usually, I'll pack has a role. But today, as I'm recording this
here on Wednesday evening, December 1st, Rosa Parks day, 66
years to the day. When she was arrested, For not
giving up her seat to a white man on a bus in Montgomery,
Alabama. I always like to remember her on
this day and I'm probably more so, on this particular day
because the Supreme Court today, Listen to the arguments as to
whether or not women in this country are second-class
citizens and it was clear that the majority of this court is
licking their chops. And excited eager to be able to
roll that they they the law Justice.
The government has a right to put its grubby paws on the
reproductive, organs of half, more than half of the population
of this country and it was it was such a profound day and, and
we've only been able to listen live to the Supreme Court.
Aw, you only know picture, but we've only been listen able to
listen live for a couple of months.
Now, it's a brand new thing, you know, and to listen to the
arguments today from the state of Mississippi as they were
essentially, trying to overturn Roe versus Wade.
But also the attorney for the by demonstration, trying to stop
this from happening and then listening to the nine justices,
oh my God, let me just get to take care of some of her
housekeeping here first because I'm Do something here today that
said again that we not done this before, but I think this was
such a historic day in his one. Commentator said today, probably
no day, no Day since wherever the last vote was in the late
1800s. Early, 1900s, that forbid, women
from voting the last time that happened before.
It finally became an amendment to the Constitution.
That was the worst day for women until today, in this will go
down in history. History today.
And I've been very upset. Since this morning, and we were
going to do something else today on Rumble.
I wanted to talk about the shooting of the students in the
high school in Michigan, high school 20. 25 miles from where I
went to high school and I have some things I want to say about
that. So, at some point here in the
next days or weeks, I hopefully will be able to do that to
there's so much going on, I know.
But we decided that this was a Most importance.
So, hang on for just a couple of minutes here while I just take
care of some business here with you.
First of all, I want to thank everybody who sent me a comment
or a response from my last piece, my last online column
that I wrote on my sub stack site.
Michael more.com. That's all you got to go to
Michael more.com. If you want to read this, I
right, usually, one a week and this was called stop watching
and reading. the pundit, Boo Berry and in this piece that I
posted on Sunday, I attempted to up in Some of the current myths
and half-truths that are currently in our national
discussion, about the economy and our politics, you know, when
you've just watched too much television, or you have looked
too many items or things on the screen, where you're not just
air coming out of your ears, but Steam, and not just steam, but I
mean, your heads exploding, frankly, you can't take it
anymore. That's the impetus of what I
wrote on Sunday, I'd love for you to read it if you hadn't
even read it. And these Islands are free every
week. You just sign up by going to
Michael more.com, you can get all my writings and you can read
this. This this thing about the
pundits. And also, I just want to let you
know, for those of you who are thinking of getting some of our
gear for friends or family for the holidays, that December 11th
is the last day to order, so that you have a guaranteed
Postal Service First Class delivery by Christmas Eve.
So if you want this for yourself, You want to give it to
somebody, whatever? You've got a couple weeks left,
not even a couple weeks really. So, I encourage you to go to
what we call, the more store, the address is stored on Michael
more.com and you can get a whole bunch of great Rumble and
dog-eat-dog films gear there and whatever.
It's a, it's a thing. We started part of it is to
raise money for the things, I support Progressive causes and
movements and also the To return arts and Civics to our Public
Schools. So, if you'd like to be
supportive of that and walk around with a rumble ball Kappa,
go to the store that Michael Moore it.com.
I've been asked to do this for 30 years by those of you who are
fans since my first film and whatever and I've never done
this. And so now I'm doing it and and
I think you'll enjoy it. I'm having a little fun with it.
So thank you for that stored up Michael more.com.
Also, for those of you who are members of my sub stack, who are
members of this, who pay the, five bucks a month, whatever.
We have some, you know, special things that we do for you, but
but you don't get any extra podcast, you don't get an extra
column or whatever. Everything I write, or
everything I do on this microphone is free to everybody,
but if you do want to support our work and we're raising money
for the next film and everything.
Right now, I encourage you to become a member of Michael
more.com. And one of the things that we do
for members is you get to ask me questions in a live stream.
So we're next member livestream Q&A, is going to be on Sunday,
December 12th. That's a week from this coming
Sunday, Sunday, December 12th at 2 p.m. eastern time, all right?
And if you remember you can participate in that and ask me
whatever you want. It'll be the second time I'm
doing this. I we did one of these month or
two ago and we had a great time with it.
It. And those of you who are paid
members participated and it's really great.
Now people are now. If you're not happy memorable
all come I can, we've done a couple things here to keep the
trolls out of the out of the discussion, the Heat and the
spewing of, I just none of us want this anymore.
And the only way we figured out how to do this is if you want to
make a comment on my page or if you want to participate in
things like the livestream q&a's, or we did one of these
already. We're going to do another One
called Mike's movie night where you and I will watch a movie
together, all of you and then we'll have a discussion
afterwards about the movie Sometimes will have on the
director or one of the stars of the film or whatever.
That's another thing you get, if you are paid member.
And so what we're going to be announcing the next Mike's movie
night coming up here in the next little bit.
But right now the next Q&A is Sunday December 12th 2 p.m.
members only for that. We look forward to talking to
all of you out there who are supporting our work now.
So before we get to supreme court today, I just want to
thank our Underwriters for supporting our voice here.
So, first of all, shout out to one of our longtime Underwriters
Amazon Studios, and their documentary film, my name is
Paul E or E. Amazon Studios has been backing
some wonderful films and filmmakers, especially
nonfiction films. They've put a lot of good
support and money into Helping documentary filmmakers,
especially a lot of first-timers are getting their film scene.
Thanks to Amazon Studios and they've done this once again
with this wonderful documentary called.
My name is Paulie. Marie, it was directed by Betsy
West and Julie Cohen who you may remember made the documentary
RBG about Ruth Bader Ginsburg, that was nominated for an Oscar
back in 2019. And in this new film, these two
women is filmmakers. They are telling the story of
someone who is often overlooked as many people are in our
history, Paulie Marie. She was a Trailblazer in the
legal world, she played an important role in The Civil
Rights. Struggle in the women's
movement, her ideas influenced rbg's fight for gender,
equality, and Thurgood, Marshall's, civil rights
arguments. She was a lawyer or a writer, a
priest, a poet. And I come, we've never heard of
her, right. This is the beauty of
documentary filmmakers that make these films.
Tell us things that we think we know everything.
We know only maybe half of it if that.
Well Paulie Marie, her story is finally being told this film was
an official selection at Sundance, the AFI Fest and it
won the audience award at the Aspen film festival and Gloria,
Steinem the great Gloria Steinem.
Said of this film. My name is Paulie Marie.
It is a beautiful film that vividly captures this pioneering
attorney. Honest and dedicated memoirist.
So there you have it. My friends watch my name is Paul
EPA Uli. My name is Paulie Marie.
I'm Prime. Watch it on Prime, I'll have a
link to the film right here, on the description page of this
episode. And again, I think Amazon
Studios for supporting this podcast, supporting my voice and
supporting the outstanding nonfiction films that I've seen
this year. Like, my name is Paulie Marie.
I also want to give a Out to a brand-new underwriter and they
make something that I think many of you will find to be a great
holiday gift. They're called Aura frames.
Maybe you've heard of them. They make these beautiful
digital photo frames that are easy to set up.
You can put them on the table, you can put them on the wall and
it's a great way to connect to show family, friends, to have
your loved ones, who may live, thousands of miles away there on
the table, on the living room wall, especially in this age of
social Distancing where a lot of us have not seen family and
friends for sometime, in addition to uploading photos to
your aura frame, you can now upload video as well and there's
a free unlimited storage for both photos and Video in these
frames. It's so cool.
I'm sure you've seen these right people and I was at somebody's
place. You're so going there was on the
wall I thought. Oh, this is so cool.
So it was a home movies of their of their kids back when they
were kids and a longer kids. But So it's a very cool thing to
have in the house and these frames or frames are one of the
most popular gifts. Now for Christmas birthdays
Mother's Day, anniversaries for anyone in the family actually
last year, when they did this, they completely sold out on
Christmas and Valentine's Day. There are offering now a
discount this year, for rumble listeners.
So visit Aura frames on a spell that for you or a you are a
frames.com Yeah, or a frames.com and use the code Rumble to take
$30 off or as best selling digital picture frames that's or
a you are a frames.com, thank you or for joining us here on
Rumble and supporting our voice and supporting what, I hope is
the good work that we're trying to do to create a better country
and a better Planet much appreciation from all of us.
Don't say welcome back to rumble with Michael Moore.
As I'm recording this just hours after the Supreme Court heard
arguments as to, whether or not to remove a woman's right to
choose from one of the rights that we have in our democracy, I
thought of doing something different here today.
And, and the idea hit me, has I, as I listened to Justice
Sotomayor. Ask this question.
To the Mississippi attorney general, and to the world.
About what they're in the process of doing.
She's in the minority on the court obviously.
So you got the nine up there six, conservatives that three
liberals and of the six conservatives three appointed by
Trump and two of them, two of the Trump point.
He's also worked for George w-- Bush to convince the Supreme
Court to stop the counting of the votes back in 2000 and just
put him in the White House. Even though he is essentially
lost the election, They were part of that and the currents
Thomas was you know Bush V Gore. That was the case was a five to
four vote. One vote, one vote.
They're here. They're here and they're he's
sitting there today. Clarence.
Thomas, one of the five made up the majority.
They gave us George w-- Bush and everything that came with him.
So now today at the podium arguing the case in front of the
Supreme Court are two women, one who represents the Center for
Reproductive Rights and the abortion clinic.
The Women's Health Center in Jackson, Mississippi.
And her name was a Julie riggleman and along with her
President Biden's solicitor general, Elizabeth be prologue
are. So they're arguing in favor of
women's rights, a woman's right to choose and then arguing
against that was the solicitor general of the state of
Mississippi. P Scott, Stuart Scott, Stewart,
of course, his name was Scott Stewart and so for about 100
minutes of the case was made to the Supreme Court as to why the
Mississippi law that forbids. Any abortion from taking place
after the fetus is more than 15 weeks old.
Right now, the law of the land row v Wade allows an abortion up
to 24 weeks of pregnancy. Let's six months in Mississippi.
Brought it down from six months to 15 weeks and if you've ever
been pregnant or known anybody who's pregnant, you know,
sometimes you don't go and find out, you don't know, or you do
know and you want some time to think about it in the law has
given you six months, To think about it.
It's big decision, right? So that's how it was set up that
way, back in 1973, the vote at that time, was a 72 to vote in
favor of a woman's right to choose and of those seven votes
were for Republicans. Three appointed by Richard Nixon
justice blackmun, justice Powell and Justice Burger.
Chief justice Burger voted for Roe v-- Wade.
Well, we have a different situation now today.
And as I listen to the Supreme Court, the arguments pro and con
by the attorneys, and the questions that they were asked
by these nine justices. I just could not believe what I
was hearing and you can see very clearly.
The times is already written a piece about this is sort of a,
almost a done deal at this point.
But I never like to feel that way, especially when it's about
evil. And I like to think that maybe
Good Will triumph over it and that there's enough of us work.
Good. And who will fight for the good?
I have not given up on that. After all these years I have
plenty of evidence as to why I should.
But I don't I don't because I have too much too much other
evidence to show how far we've come how far we can get if we
just rise up. And today as I was listening to
this and some of you are listening to this hour on
Thursday or Friday here this week, but let me read you what
Justice Sotomayor said. So I'm listening to this end,
all of a sudden Justice Sotomayor.
One of the three liberals on the court frustrated exhausted.
Decided to ask the existential question of the day.
That question that went beyond how we're going to vote.
On this abortion issue, but to the larger, the issue, a larger
issue of our democracy, and this is what she said.
She asked this question, will this institution survived the
stench that this creates in the public perception?
That the constitution And it's reading are just political Acts.
I don't see how it is possible. How it is possible to how this
is going to play out in any other way.
Wow, that just hit me like a lightning bolt.
We are creating a stench in this room.
She says, And I thought, you know what?
This is the podcast today. Not me complaining about this
fighting this and doing everything.
I wanted to scream bloody murder about this but I decided to turn
this episode over to the United States.
Supreme Court, I want you to hear live what they said and
what they did, I want you to hear the arguments from the
attorneys. I think all of us as citizens of
this democracy must Listen to these words that were spoken
inside the Supreme Court today because your head I'm telling
you my head was just going back and forth, they are doing this,
they're actually going to do this, they're in the process of
in their questions and in there and thinking out loud.
It's not so much of whether they are going to Overturn Roe, v--
Wade, they're trying to work out the how, how can we do this?
Can we get away with this? How do we make women
second-class, citizens? There's nothing more.
I can say, there's no guests. I could have on today that would
be more powerful. in giving you the true sense of a historic
moment, where the majority gender is about to be nullified,
where the majority gender is about, to be placed into
second-class citizenship, And what we do about it, what we're
all going to have to do about it.
In the coming months. I'm going to save that for part
two in another week or two or whatever.
Will I want you to think and hear what was said in your
Supreme Court this week. by your justices of the Supreme Court,
in the Valiant effort of these two women attorneys who tried to
argue And plead with the court to not reduce the majority
gender. The second-class status.
They think they can do it. They think they could do this to
women with God on their side. So make yourselves comfortable.
I'm going to play this in its entirety.
It goes for only about 100 minutes little more than 100
minutes and listen to as much of it, as you can.
Now, listen to the rest later. But please listen to the the
whole thing because it is a civics lesson that we don't
usually get, we're only in the second or third month of them
actually letting us listen live to the Supreme Court.
You know, before we act in the coming weeks and months, we need
to educate ourselves and we need the knowledge.
Of what was taking place in our name in this court.
Today, I'm going to now turn this over to our United States
Supreme Court. And I'll come back with a
closing word. At the end, we will hear
argument this morning in case 19, 1392 Dobbs versus Jackson
Women's Health Organization. General Stuart mr.
Chief justice, and may it, please the court.
Roe versus Wade and Planned Parenthood versus KC, haunt our
country. They have no basis in the
Constitution. They have no home in our history
or Traditions. They've damaged the Democratic
process. They poison the law.
They've choked off compromise for 50 years.
That kept this court at the center of a political battle
that it can never resolved and fifty years on, they stand
alone. Nowhere else does this court
recognized a right to end a human life?
Consider this case the Mississippi Law here, prohibits
abortions, after 15 weeks, the law includes robust exceptions
for a woman's life and health. It leaves months to obtain an
abortion yet, the courts below struck the law down, it didn't
matter that the law applies that the law applies.
When an unborn child is undeniably human, when risks to
women Surge and when the common abortion procedure is brutal.
The lower Court's held that because the law prohibits
abortions before viability, it is unconstitutional.
Optional, no matter what row in Casey's core holding, according
to those courts, is it? The people can protect an unborn
Girl's Life when she just barely can survive outside the womb but
not any earlier when she needs a little more help, that is the
world under Roe and Casey that is not the world.
The Constitution promises, the Constitution places, its trust
in the people on hard issue after heart issue.
The people make this country work, abortion is a hard issue,
it demands the best, from all of us.
Not a judgment by just a few of us when an issue affects
everyone. And when the Constitution does
not take sides on it, it belongs to the people, Roe and Casey
have failed, but the people, if given the chance will succeed,
this court should overrule Roe and Casey and uphold the state's
law, I welcome the courts questions General.
Stuart you focus on the right to abortion but our jurisprudence
Seems to seem to focus on in Casey autonomy in row privacy.
Does it make a difference that we focus on privacy or autonomy
or more specifically on abortion?
I think whichever one of those you're focusing on your honor
particularly if you're focusing on the right to abortion, each
of those starts to become a step removed for what's provided in
the Constitution. Yes.
The Constitution does provide certain protect certain aspects
and privacy of autonomy and the like, but as this court said in
glucksberg, going directly from general concepts of autonomy of
privacy of bodily Integrity to a right, is not how we
traditionally this court traditionally does Process
analysis. So I think it just confirms
whichever one of those. You look at your honor, a right
to abortion is not grounded in the text and it's grounded on
abstract Concepts that this court has rejected.
In other context is supplying a substantively.
You say that this is the only constitutional, right?
That involves the taking of a life.
What difference does that make in your analysis?
Sure, your honor. I think it makes a number of
differences one. I mentioned two in particular.
Euler one is it really does Mark out the unbelievably profound
ramifications of this area? Which in many other areas.
Assisted suicide a whole host of important areas that are
important to dignity, autonomy, freedom and and important of
matters of conscience, it marks it out as one of the unique
areas where this court has taken that important issue to the
people, and it's something that implicates life and it just I
think marks off Justice, Thomas how problematic Usual and how
much of a break, the courts of birth.
Abortion jurisprudence is from those other cases.
If we don't overrule Casey or row?
Do you have a standard you propose other than the viability
stand? It would be your honor.
A clarified version of the undue burden standard.
I would emphasize, I think, is your honors alluding to that no
standard other than the rational basis review that applies to all
laws will promote an administrable workable
practicable That jurisprudence that puts matters back with the
people. I think anything heightened here
is going to be problematic, but I would say, if the court were
not inclined to to overrule Casey the the choice would be
undue, burden standard untethered from any bright line
viability rule. I'd like you to a different
topic. Back to Casey, assume you've
read Casey pretty thoroughly. Yes, your honor and there are
two parts. One is, I reaffirm row put that
to the side. The second is an opinion for the
court, not for three people, but for the court, and that second
part is about what Starry decisis principles should be
used to overrule. Okay, Sly Crow.
And they say, Rose special. but special about it, they say it's
rare, he call it a watershed Why?
Because the country is divided because feelings Run High.
And yet the Country For Better or For Worse, decided to resolve
their differences. By this court laying down, a
constitutional principle in this case, woman's choice.
But that was what makes it rare. That's not what I'm asking you
about. I want your reaction to what
they said, follows from that. What the court said follows from
that is that it should be more unwilling to overrule a prior,
case Farm or unwilling, we should be whether that case is
right or wrong. Then the ordinary case.
And why? Well, they have a lot of words
there, but I'll give you about 10 or 20.
There will be inevitable efforts to overturn it.
Of course, there will feelings Run High and it is particularly
important to show we do. In overturning a case is
grounded in principle and not social pressure, not political
pressure only quote, the most convincing justification can
show that a later. Decision overruling.
If that's what we did was anything, but a surrender to
political pressures or new members and that is an
unjustified repudiation. Of principles on which the
courts takes its Authority. And then, there are two
sentences. I'd like to reach as they say,
they really mean this, the court, not just three.
To overrule Under Fire in the absence of the most compelling,
reason to re-examine a watershed decision would subvert, the
courts legitimacy Beyond any serious question.
And the last sentence after they quote Potter Stewart on the same
point, they say overruling unnecessarily and Under Pressure
would lead to condemnation. The courts loss of confidence in
the Judiciary. The ability of the court to
exercise the judicial power, and to function as the Supreme Court
of a Nation dedicated to the rule of law, that's the opinion
of the Court. Right?
And it's about Starry decisis and how we approach it and I
hope everybody reads this. It's at 5:05, u.s. 854 2869.
All right what do you say to that?
Sure you're sure Justice Breyer I would say a couple things I
would say we have very closely gone through the factors that
the Casey court itself went through and Starry decisis more
than half of our brief is devoted to sorry decisis.
We now have 30 years in the wake of Casey to see what Casey has
done and what it hasn't done, it's called some bad things in
the eyes of some people and some good things in the eyes of some
people, your honor. All right?
All right, go ahead. You I'm sorry, your honor.
What I'd emphasize your honor is that to the extent that that
the, I would not say it was the people that called this court to
end the controversy. The people, you know, many, many
people vocally, really just wanted to have the matter
returned to them so that they could decide it decide it
locally deal with it the way. Thought best and at least have a
fighting chance to have their view Prevail, which was not
given to them under row. And then as a result under Casey
and I'd also emphasize your honor that on on stare decisis,
just as I said, the last 30 years.
Workability developments in the law factual development since
states can account for the workability.
The undue burden standard alone. Many problems on all the metrics
that Casey was describing our the vast bulk of them.
Casey fails and I'd also have sighs.
This is well Justice, Breyer that Casey was not was not a
great example of Simply letting president stand, it re Castro's
reasoning it overruled to of the courts.
Most important abortion decisions, it's jettison the
trimester framework of rho itself and adopted a new
standard unknown to other parts of the law.
Those are not the Hallmarks of precedent and they failed under
this Court's star. Who can I take it?
That your answer is yes. You accept the the way the
Special Rule, the rule for the rare Watershed, The Starry
decisis principles for deciding whether to overturn such a case
as row, you accept that and you think it's met I would I would
say yes in part your Justice Breyer.
And here's what I'd emphasize is that I do think particularly
when Casey looked outward and look to what it seeks always
pressure. There were pressure on all
sides, as your honor, know that this is a hot difficult issue
for everyone. It's that's why it belongs to
the people. And I think the conclusion, the
court, Drew from that, that it couldn't provide a good enough
example that it would look on principle.
Those conclusions were with respect Justice, Breyer mistaken
and the last the years has not seen any calming of that.
It's been very different than some of the others.
The courts other controversial decisions that have seen much
more calm. What hasn't been at issue in the
last 30 years is the line that Casey drew a viability.
There has been some difference of opinion with respect to undue
burden but the right of a woman to choose the right of to
control her own body has been clearly set for since Casey and
never challenge. You want us to reject that line
of viability and adopt something different. 15, justices over 50
years. Have or I should say 30 since
Casey. Have reaffirmed that basic
viability line. Four have said, no.
Two of them members of this court, but 15 justices have
said, yes, of varying political backgrounds.
Now the sponsors of this bill, the house bill in Mississippi
said we're doing it because we have new justices.
The newest man that Mississippi has put in place the six-week
ban, the Senate sponsor said we're doing it because we have
new justices on the Supreme Court.
Will this institution survived the stench that this creates In
the public perception. That the Constitution and it's
reading are just political acts II.
Don't see how it is possible. It's what Casey talked about
when it talked about Watershed decisions, some of them Brown
versus Board of Education. It mention And this one.
I have such an entrenched. Set of expectations in our
society that this is what the court decided.
This is what we will follow that.
The that we won't be able to survive.
If people believe that everything including New York
versus Sullivan, I could name any other set of Rights
including the second amendment. By the way, there are many
political people who believe the court erred In seeing this as a
personal writers, as opposed to a militia, right?
If people actually believe that, it's all political.
How will we survive? How will it Court survive,
Justice Sotomayor, I think the concern about appearing
political makes it absolutely imperative.
That the court reach a decision, well grounded, in the
constitution, in text structure, history and tradition.
And that carefully goes through the starry, decisive factors
case, we play Down. No.
Didn't Casey went through every one of them.
You think you're did it wrong? That's your belief, but Casey
did that, well, your idea have an atom much to the discussion
in your papers as too. The errors that Casey May other
than I disagree with them, Casey.
Just somewhere, maybe I can. I can highlight to Casey gave
one paragraph to the workability of row.
It then adopted the undue burden standard, which is perhaps the
most unworkable standard in American law.
It gave about three paragraphs of memory serves to Reliance,
which doesn't account for the last 30 years in the changes
that have occurred. Since Casey, it did, it gave a
brief factual view, two things that have changed since Roe.
Those of course are not going to take account of the last 30
years of advancements in Listen science, all of those things.
What are the advancements in medicine?
I think it's an advancement in knowledge and concern about such
things as fetal pain, what? We know the child is doing and
looks like and is fully human are very early entry in regular
cases courts, decide whether science fits the daubert
standard. Obviously that under the daubert
standard. The minority of people gross.
Minority of doctors who believe fetal pain exists before 24 25
weeks. So huge minority and one not,
well founded in science at all. So I don't see how that really
adds anything to the discussion at a small Fringe of doctors
believe that pain could be experience between of before
cortex is formed. What's it mean that there's been
that much of a difference? Since Casey, we pointed out as
an example, your honor of where Roe and Casey improperly
preclude States from taking account for these things, and
they should be able to be concerned about the about a fact
of an unborn life being poked and then recoiling is.
And the way one of us are where the general does was, I know
what it said about viability in row, but was viability an issue
in the case, Yes, I know it wasn't briefed or argued.
It was It was not issues in issue.
Certainly, the way it is in issue here, your honor, I think
It was to the extent that the court had to over had to
reaffirm Row. The way to read that is
something other than dicta would be done.
I'm sorry. Got I don't know what I said.
Was it an issue in row? 0 in row?
Yeah, I'm sorry. Your honor.
My understanding is no in the law.
There was didn't have a viability tag that was inserted
by in fact, if I remember correctly and I It's an
unfortunate Source but it's there in his papers Justice
blackmun said that the viability line was actually was dicta and
presumably he had some insight on the question I think and I'd
add your honor Justice blackmun and I think as well as papers
pointed out the arbitrary nature of it and and the line-drawing
problems in there too. And then in Casey, Casey said
that, that was the core principle or the central
principle in Road viability. It said that after Tossing out
the trimester formula which many people thought was the core core
principle but was viability at issue in KC.
I don't think it was squarely an issue, your honor again.
It's it's a little hard not to take the court at its word when
it emphasized that viability the Vie viability is the central
part of Rose holding and saying that it is reaffirming that.
So we kind of take that as its as it stands.
But the court has not. It did not face a law like this
certainly mr. Chief justice, may I finish my
inquiry, of course, Justice Sotomayor.
Virtually every state defines a brain death as death.
Yet the literature is filled with episodes of people who are
completely and utterly playing shredded responding to stimuli.
it, there's about 40 percent of dead people who if your touch
their feet the foot will recoil There are spontaneous x-bike
that bring people. So I don't think that a
response. To buy a fetus necessarily
proves that there's a sensation pain or that there's
consciousness. So I go back to my question of
what has changed in science. To show that the viability line
is not. A real line that a fetus cannot
survive, and I think that's what both courts below said.
That you had no experts say that there is any viability before 23
to 24 months. And what I'd say is this Justice
Sotomayor is that the fundamental problem with
viability. It's not really something that
rests on science so much. It's that if I ability is not
Tethered to anything in the constitution in history or
tradition. It's a quintessentially
legislative line. A legislature could think that
viability makes sense as place to draw the line.
But it's quite reasonable for a Slater to draw them something
else so much. That's not in the Constitution
including the fact that we have the last word Marbury versus
Madison. There is not anything in the
Constitution that says that the court, the Supreme Court is the
last word on what the Constitution means, it's totally
novel at that time. And yet what the court did was
reason from the structure of the Constitution that that's what
was intended and here in KC. And in Rome, the court said,
there is inherent in our structure that there are certain
personal decisions That belong to individuals in the state's,
can't intrude on them. We've recognized them in terms
of the religion. Parents will teach their
children. We've recognized it in in their
ability to educate at home. If they choose, they just have
to educate them. We have recognized that sense of
privacy in people's choices about whether to use
contraception or not. We recognize the in their right
to choose who they are going to marry.
I fear. None of those things are written
in the Constitution. They have all like Marbury
versus Madison being discerned from the structure of the
Constitution. Why do we now say?
That somehow Roe versus case C is Roe and Casey are so unusual
that they must be overturned. Well, your Justice Sotomayor I
would I would emphasize two things when you're going beyond
the Constitution. This court has looked closely to
what I'm saying is they didn't go beyond the Constitution, your
honor, they did not deduce those from the structure of the
Constitution, they pointed to the Fourteenth Amendment and,
and reasoned that privacy in row live, autonomy, and similar
values and Casey led to a right, Portion, that's not how this
court, traditionally does things, including in the vast,
run of cases, that you're on a ran through the court, looks to
history and tradition and hear those decisively reject.
The proposition that states cannot legislate comprehensively
on abortion before after viability and all throughout.
So its history and tradition, your honor and I would also add
your honor that those those decisions, a great, many of them
draw you know not just draw from texting text history and
tradition but they draw off and clear lines very workable.
Have not led to the many negative story.
Decisive factors that we identify here, General wood.
That is what decision in your favor?
Call any of the questions, any of the cases?
Sorry that Justice Sotomayor is identifying into question.
No, your honor I think for a couple reasons, first of all, I
think the best friend of those cases and some mentioned from
time to time or think Griswold Lawrence.
Oh Berger Feld. These are these are cases that
draw. Clear rules, Can't Ban
contraception. Can't Ban intimate romantic
relationships between consenting adults.
Can't Ban marriage. People of the same sex, clear
rules that have engendered a strong Reliance interests?
And that have not produced negative consequences.
They're all the many other - story, decisive considerations,
we pointed out your honor also. I had none of them involved the
purposeful termination of a human life.
So those two, those two features story decisis and termination of
a human life. Your honor puts all of those
safely Out Of Reach of the Court overrules here.
Okay so we I'm sorry to interrupt again but we meeting
might be making progress. Egress.
I mean in the part that I read, you know, apiaceae?
Yes, your honor, I think they think go back 150 years.
Maybe now we can go back 200. They think they've only been two
cases. Which will what they call the
Watershed and wear these special tough overruling rules, apply.
You want this to be the third or do you think they were more?
And if so what were they? Well, your honor.
I think there's quite a bit of difference.
I think the question is never, is it bad to overrule, period,
you know, surely story. I'm asking you to think, think
in their terms there were two, they mentioned say but and they
don't want Casey to, they don't want road to be the third and
now in your opinion you just answered Justice parrot or hey,
all these are not rising to Level.
Okay, right. You are there any the do rise to
the level? In your opinion, I think.
And I'm not sure that I necessarily agree with the
Watershed characterization, your honor, what I'd say though, I
can't think of another that kind of hits the radar, but I'd
emphasize that the problem here is we're dealing with a right
that doesn't have a basis in constitutional text.
And again, very much in conflict with those with those values
Justice Breyer. I'm not sure how your answer
makes sense. Any sense?
All of those other cases Griswold Lawrence.
Oh Berger Feld? They all rely on substantive due
process. You're saying there's no
substantive due process in the Constitution so they're just as
wrong according to your theater, no, your honor.
We're quite comfortable with washing versus glucksberg and
how it analyzes substantive due process and it looks to text
history, it looks to history and tradition to discipline the
inquiry to make sure I mean weirder filled there was no.
History of same-sex marriage and I think the court the court
pointed out look when we when we were facing loving versus
Virginia. I'm not trying to argue that we
should overturn those cases. I just think you're just
simulating when you say that any ruling here of wouldn't have an
effect on those respectfully. I that's that's your thinking
know that no state is going to think otherwise that know.
People in the population are the channel challenge those cases in
court. I mean, your honor will always
have a diversity of views but I think that's the point.
I think that's what I think that the point that there's a
diversity of views and people can vigorously debate and make
exactly, oh, that's still doing and that's what we're doing
under undue burden but we haven't been doing it on the
viability line and neither one has worked well, the viability
line discounts and disregard State interest.
It's and the undue burden standard has all of the problems
of a interest. Anything, but a religious View.
Issue of when life begins has been hotly debated by
philosophers. Since the beginning of time,
it's still debated in religions. So when you say this is the only
right that takes away from the state, the ability to protect
the life. That's a religious view, isn't
it because it assumes that a fetus is life.
At when you're not drawing gear, when do you suggest we begin
that way? Your honor.
Aside from putting it, aside from religion, I'll try to.
I think there might be more than one question and I'll do my very
best Justice Sotomayor. I think this court in Gonzales
pretty clearly recognized it before viability.
We are talking with unborn life with a human organism and I
think the philosophical questions, your honor mentioned,
all those reasons that they're hard, they've been Abated there,
there. Important.
Those are all reasons to return this to the people because the
people should get to debate these heart issues and this
court does not in that kind of a circumstance.
When does the life of a woman and putting her at risk?
And to the calculus meaning, right now, forcing women who are
poor, and that 75% of the population and much higher
percentage of those women in Mississippi, who elect abortions
before viability They are put at a tremendously greater risk of
medical complications and ending their life 14 times greater to
give birth to a child full term than it is to have an abortion
before viability. And now, the state is saying to
these women, we can choose. Not only to physically,
complicate your existence, quote, you at Medical risk.
Make you poorer by the choice. Because we believe what that?
Sure, your honor I think to answer I think the the question
I think you led with and then I think it expanded on, but it's
still on the same issue is as to wind is a woman's interest enter
as far as we're concerned. It's there the entire time our
point is that all of the interests are there, the entire
time and Roe and Casey improperly prevent States from
taking account and weighing those interest, however, they
think best we're not General, are there are there secular
philosophers and bioethicists who take the position that The
rights of personhood, begin at conception, or at some point
other than viability. I believe so.
I mean, I think there's a wide array.
I mean, of people of kind of all different views and of no faith
views, who would reasonably have that view your honor.
It's not tied to a religious View and I don't think we're at
otherwise. This Court's jurisprudence would
on this issue with run right into some of its religious
exercise jurisprudence and Justice Breyer started with
Starry decisis an important principle.
In any case and here for the reasons that Casey mentioned
especially so, to prevent people from thinking that this court is
a political institution that will go back and forth depending
on what part of the public yells loudest.
And and, and preventing people from thinking that, the court
will go back and forth depending on changes to the courts.
Bishop and what strikes me about this case.
And and you come here very honestly saying you know we want
you to discard the entire setup and then even if you don't do
that, we want to discard the viability line which you've
acknowledged again. Today, Casey says is the heart,
the central principle of row. And so usually there has to be a
justification, a strong justification, in a case like
this beyond the fact that you think the case is wrong.
And I guess what, strikes me when I look at this case, is
that You know, not much has changed since Roe and Casey that
people think it's right or wrong based on the things that they
have, always thought it was right and wrong for.
So the, the, the, the rationale behind those cases has something
to do with the autonomy and the freedom and the Dignity of women
to pursue their lives, as they wish to protect their bodily
Integrity to make the decisions that are made.
Most fundamental to the course of their lives and an always in
those cases, there was an understanding that there were
important interests on the other side in protecting life or
protecting the potential for life whether people saw it one
way or the other way. And that there was a difficult
question here and a balance to be made and I mean it strikes me
that people some people think those decisions made the right.
Lance and some people thought they made the wrong balance.
But in the end, we are in the same exact place as we were
then. Except that we're not because
there's been 50 years of water under the bridge 50 years of
decisions saying that this is part of our law that this is
part of the fabric of women's existence in this country and
that that places Us in an entirely different situation
than if you had come in 50 years ago and made the same arguments.
So I guess I just wanted to hear you react to that.
And of course, Justice Kagan. Thank you.
I would emphasize a couple things your honor.
The fact that so much time has passed.
Let's say nothing had changed. That's not a point in row in
Casey's favor. They have no basis in the
Constitution, they adopt a right that purposefully leads to the
termination of. Now, millions of human lives.
The if nothing had changed they'd be just as bad as they
were 30 years ago, 50 years ago and now we just have Decades of
damage and we have a situation where nearly 30 years after
Casey the court. Unfortunately, divides over,
what Casey, the lead case on in the abortion area, even means
the lower courts are left. Not knowing what to do is I
think and I think kind of a fundamental problem here is I
think it's just as Gorsuch mentioned emphasized in his, his
opinion in June medical. That the problem for lower court
judges is the Constitution. Doesn't give them an answer to
this. There's no neutral rule of law.
So judges unfortunately have to look within themselves and
that's just never going to solve this issue.
But if the Matter's returned to the people, the people can deal
with it. They can work, they can
compromise and reach different solutions but if we don't do
that, we're just going to have all this sort of damage.
And at some point, it's appropriate for the court to say
enough as it has in some of its the great over rulings in brown.
And in other cases where it said this is just enough Justice
Harlan had it right in dissent in Plessy when he recognized
that that that you know all our all are equal and he similarly
here, the state should be able to recognize.
Hey there are real values on both sides here.
We think that this one slightly out ways that we think that this
one's slightly at ways where we think there's some balance to be
drawn here. But if the court doesn't do that
Justice Kagan it's just going to be Continued damage and the
court will continue to plunge in this political issue.
I apologize. Mr. Chief justice.
I've gone over. No, that's all right.
I have just a few little, well, not little.
I hope questions. And first gets back to the issue
of viability, you know, in your petition for cert your first
question. And the only one on which we
granted review was whether all pre-viability prohibitions on
elective, abortions are unconstitutional.
And then I think it's fair to say, Say that when you got to
the brief on the merits, your kind of shifted gears and talk a
lot more about whether or not Roe and Casey should be
overruled. And I wanted to give you a
chance to explain that sure your honor.
So a couple points, you know, at the petition stage we were of
course identified, we'd identified for the court, three
questions we emphasize as you do at the cert stage hate, this is
important only. This court can resolve it.
We emphasize, I believe was five times at the court was at the
least. Going need to going to need to
reconsider revisit or Evaluate its precedents and we asked the
court to, at least get rid of a viability line or any suggestion
of a viability line. So we added, however, and we had
to take account of the reality that this argument has not fared
well in the lower Court's, it's lost in every court of appeals.
So you know, we raised the issue in addition.
But once the court, granted only, the first question we
presented every argument as we signaled, we would present the
full-blown constitutional merits argument with that fundamental
Question. So, I'd emphasize that your
honor was kind of the shift. You go from cert stage to merits
stage, the court granted. One question that question
fairly includes, what is the correct way to fairly includes
the broader arguments? You raised I'm not suggesting
that but on the other hand, presumably included the
viability question as well. Because that's what you talked
about in that one sentence and and we've addressed that as
well. Your honor what I'd emphasize
here is that the merits arguments of, you know, the
validity of Roe and Casey is an original matter.
Their viability rule based in the Constitution.
Those are not that complicated or lengthy.
The harder questions are, you know, should the court overrule
and take that momentous step? And that's why we devote a lot
of space to that very important issue.
We respect Starry decisis and if walk through all those points
but again focusing on the question presented in arguing
presenting our best Arguments for that.
That's that's what we've done is received on a starry decisis.
I think the first issue you look at is whether or not the
decision, Ian at issue was wrongly decided, I've actually
never quite understood how you evaluate that?
Is it wrongly decided, based on the legal principles and
Doctrine when it was decided or or in retrospect.
Because row, I mean, there are a lot of cases around the time of
Roe. Not the that magnitude, but the
same type of analysis that that went through exactly.
The sorts of things. We today, would say we
erroneous, but do we look at it from today's, if we look From
today, today's expected it's going to be a long list of cases
that we're going to say or wrongly decided.
Well I'd say I'd say mr. Chief justice, that you look but
you can look both. Was it wrong at the time has it
been unmasked as Wrong by by new understandings?
New knowledge, any developments? But I don't think as I think the
colloquy my colloquy with Justice, Barrett indicated, the
court won't have to be looking at much other many other areas
because this is an area that has a uniquely.
Problematic set of Starry decisis considerations, a lot of
other controversial areas or once controversial areas are
quite settled, clear rules, and don't have those considerations
against them. So really by by overruling Roe
and Casey, the court won't have to go down that road and a lot
of those decisions are quite readily Roundtable in history.
Tradition in the courts, traditional factors your honor.
Thank you just as Thomas Justice Breyer.
So we do justice Sotomayor. Okay, listen.
I just wanted to get your quick sense of how your intermediate
positions would work. You know, if basically the
viability line was discarded and undue burden became the
standard. Overall, a standard that
according to you is an unclear one, what that would leave the
court with going forward. You know, I'm just sort of
thinking about the Great variety of different regulations that
states could pass. So whether one is 15 weeks and
one is 12 weeks, and one is nine weeks or variation across a wide
variety of other dimensions. What would that look like coming
to the court? How would we, how do you think
we should? We would be able to deal with
that or or how would you counsel us to deal with that?
If the court were to go down that road?
Well, I think, This is not to push back against the n and I
will answer your question Justice Kagan, but part of why
we've Council to overrule full-scale, is that that's the
only way to get rid of a number of the problems that I think
your honors alluding to. And that's that, when you have
the undue burden standard, it's a very hard standard to apply,
it's not objective. The court looks to the record in
each case, and what's going on. I mean, the cording Casey itself
said, under this record, this is not an undue burden.
You couldn't say necessarily for certain that a certain number of
weeks. One place would be An undue
burden but would be okay. Another place.
But again, that is the world. We have under Casey.
So if the court upholds, this law under the undue burden
standard, it would be caring for with those features which and I
hope I've answered your question, but I think that's one
of the very strong reasons to just go all the way and overrule
Roe in case your honor, right? This is Gorsuch just as camera.
I want to be clear about what you're arguing and not arguing
and to be clear. You're not arguing that the
court somehow has the authority to itself, prohibit abortion or
that this court has the authority to order the states to
prohibit abortion as I understand it, correct?
Correct. Your honor and as I understand
it, you're arguing that the constitution silent and
therefore neutral on the One of abortion, in other words that
the Constitution's need their pro-life nor pro-choice on the
question of abortion, but leaves the issue for the people of the
states or perhaps Congress to resolve in the Democratic
process. Is that accurate, right?
We're saying it's left to the people, your honor.
And so for the if you were to Prevail the state's majority of
states or states still could or and presuming, would continue to
freely allow abortion many, States.
Some states would be able to do that.
Even if you Prevail under your view is that correct?
That's consistent with our view, your honor.
It's one that allows all interest to have full voice and
and many of the abortions we see in certain states that I don't
think anybody would think would be moving to change their laws
in a more restrictive direction. Thank you.
Your honor.
That's the spirit. General.
I have a question that is a little bit of a follow-up to one
that Justice Breyer was asking you that's about star decisis.
And I think a lot of the colic we've had with all of us has
been about the benefits of star decisis, which I don't think
anyone disputes. And of course, no one can
dispute because it's part of our star decisis doctrine that it's
not an inexorable command and that there are some
circumstances in which over willing it's possible, you know,
we have + E Brown, we have ours versus Hardwick to Lawrence.
But in thinking about starter sizes, which is obviously the
core of this case, how should we be thinking about it?
I mean Justice Breyer pointed out that in Casey and in some
respects while it was a different conception of star
decisis and so far, is it very explicitly, took into account
public reaction? Is that a factor that you
accept? Or are you arguing that we
should minimize that factor? And is there a different set of
rules it? Sure that Casey identified Brown
and west coast hotel as Watershed decisions.
But is there a distinct set of starred as Isis?
Considerations applicable to what the court might decide as a
watershed decision? I don't think there should be a
distinct set of apis of considerations there.
Your honor. I think what I would emphasize
and just to make sure on the kind of legitimacy the court
looking outward, I think Casey was unusual in that regard.
I think it was a mistake and I think it's something that is
kind of In conflict with this Court's structure and approach
is an independent Branch, looking to the Constitution,
rather than looking without and I think that's one reason why
traditionally the court is in some of its greatest overruling,
it's not looking without, it's saying this was wrong, it was
wrong in the day was decided we know it's wrong today and it's
led to all these terrible consequences we should get.
We should get rid of it. I so I think that that was an
unfortunate. It break and I think the court,
even if the court were to were to still look at legitimacy
though, Justice Barrett. I think the court could very,
very powerfully. Say look our jar legitimacy,
really derives from our willingness to stand strong and
stand firm in the face of whatever is going on and stand
for constitutional principle. And follow our traditional
story, decisive factors to overrule when it's appropriate.
Thank you, your honor. Thank you counsel.
Thank you, mr. Chief justice.
Mr. Coleman. Mr. Chief justice and may it,
please the court Mississippi's ban on abortion.
Two months before viability is flatly unconstitutional.
Under Decades of precedent. Mississippi asks of the court to
dismantle this precedent and allows states to force women to
remain pregnant and give birth against their will, the court
should refuse to do. So, for, at least three reasons,
first stare decisis presents, an especially High bar here in KC
this court carefully. We examined and rejected every
possible reason for overruling Roe holding that a woman's
right, to end a pregnancy before viability was a rule of law and
a component of Liberty. It could not renounce.
The question then is not whether row should be overturned, but
whether Casey was egregiously wrong to adhere to Rose Central
holding, s Casey and row were correct for a state to take
control of a woman's body and demand that she go through
pregnancy and childbirth, with all the physical risks and
life-altering consequences. That brings is a fundamental
deprivation of her Liberty preserving a woman's right to
make this decision until My ability preserve protect her
Liberty while logically balancing.
The other interests at stake third eliminating or reducing
the right to abortion will Propel women backwards.
Two generations have now relied on this, right?
And one out of every four, women makes the decision to end a
pregnancy Mississippi's ban would particularly hurt women
with a major health, our life change during the course of a
pregnancy. Poor women who are twice as
likely to be delayed in accessing care and young people.
Or those in contraception who take longer to recognize a
pregnancy to avoid, profound damage to women's Liberty,
equality, and the rule of law. The court should affirm Council.
I just have one question. I assume you from your brief,
you're relying on an autonomy Theory, both bodily integrity
and the ability to make decisions related to family
marriage and childbearing your honor shortly after some years
after we decided Casey We had a case out of South Carolina, I
believe involved, a woman who had been convicted of criminal
child neglect because she ingested cocaine during
pregnancy. In her case was post viability
so it doesn't fit in the facts of this case.
If she had ingested, cocaine pre-viability.
And had the same negative consequences to her child.
Do you think the state had an interest and enforcing that law
against her? The state may have your honor,
the state can certainly regulate to serve its interests and Fetal
life. And in women's health, those
particular laws, tend to undermine both of those
interests because we deter women from seeking prenatal care which
is counterproductive to both their health, the pre-viability
as well as post viability. No, your honor, the court has
been clear that after viability. States, can prohibit abortion
except to say, no. I mean, the, in my example of,
Criminal child neglect. I understand you.
Your argument is about abortion. I am trying to look at the issue
of bodily autonomy and whether or not she has a right also to
bodily autonomy in the case of ingesting an illegal substance
and causing harm to a pre-viability fetus.
Your honor, of course, those issues aren't posed in this
case. And again, I I'd say that the
states can certainly regulate throughout pregnancy both before
and after viability to preserve fetal life and to preserve the
Women's Health. The court has said, however,
there's there are other constitutional constitutional
issues at stake. For instance, in the Ferguson
case that states still can't violate women's Fourth Amendment
rights. But again that's not what this
case is about. This case is about a ban on
abortion that the state concedes is weeks before viability and
the court has been clear for 50 years.
That the one thing that's It's cannot do is to take the
decision completely away from the woman until viability that
until that point. It is her decision to make given
the unique physical demands of pregnancy and the life-altering
consequences of pregnancy and having a child.
Thank you. You're the point you made about
the impact on women and their place in society.
Those words certainly made in row as well.
What we have before us though, is a 15-week standard.
Are you suggesting that the Difference between 15 weeks and
viability are going to have the same sort of impacts as you were
talking about or as we were talking about in Rome.
Yes, your honor, I believe they would because people who need
abortion after 15 weeks are often in the most challenging
circumstances. As I mentioned there, people who
have made perhaps had a major health or life, change a family
illness. A job loss is separation young
people or people who are on contraception of pregnant for
the first time in who are delayed and recognizing the
signs of pregnancy. Or poor women who often have
much more trouble navigating access to care.
And if they're denied the ability to make this decision
because there's a ban after 15 weeks, they will suffer all of
the consequences that the court has talked about in the past.
And in fact, the data has been very clear over the last 50
years that abortion has been critical to women's equal
participation in society. It's been critical to their
health to their lives. Their ability to pursue a what,
what kind of data is that That I would refer refer the court to
the brief of The Economist. In this case, your honor and it
compiles data showing studies based actually on causal
inference, showing that it's the legalization of abortion and not
other changes that have had these benefits for women in
society. And again, those benefits are
clear for education for the ability to pursue a profession
for the ability to putting that data aside, if you think that
the issue, Is one of choice that women should have a choice to
terminate their pregnancy that supposes that there is a point
at which they've had the fair Choice opportunity to choice and
why would 15 weeks be an inappropriate line.
So viability. It seems to me doesn't have
anything to do with choice but if it really is an issue about
Choice, why is 15 weeks not enough time?
For for a few reasons, your honor first, the state has
conceded that some women will not be able to obtain an
abortion before 15 weeks, and this law will borrow them from
doing so. And a reasonable possibility,
standard would be completely unworkable for the courts.
It would be both less principled and less workable than viability
and some of the reasons for that are without viability.
There will be no stopping point States will rush to ban abortion
at virtually any point in pregnancy.
Mrs. Itself has a six-week ban that it's defending with very
similar arguments, as it's using to defend the 15-week, ban and
their states that have bands. I know.
But I'd like to focus on the 15-week band because that's not
a dramatic departure from viability.
It is the standard that the vast majority of other countries
have. When you get to the viability
standard, we share that standard with the People's Republic of
China, and North Korea. And I don't think you have to be
in favor of looking to international law to set our
constitutional standards to be concerned.
If those are your Share that particular time period.
I think there's two questions there.
Your honor if I may first that is not correct about
international law. In fact, the majority of
countries that permit legal access to abortion allow access
right up until viability even if they have nominal lines earlier.
So, for example, Canada, Great Britain and most of Europe
allows access to abortion, right up until viability.
And it also doesn't have the same barriers in place.
Your mean, even if they have nominal Lon Earlier some
countries, your honor, have a nominal line of 12 weeks or 18
weeks, but they permit legal access to abortion.
After that point for Broad Social reasons, health reasons,
socio-economic reasons. So they're regimes, really
aren't comparable and they also don't have the same types of
barriers that we have here. So if the court were to move the
line, substantial substantially backwards and 15 weeks is nine
weeks before viability your honor, it's quite a bit
backwards. It may need to consider the
rules around regulations because of its cutting the time period,
to obtain an abortion roughly in half, then those barriers are
going to be much more important. Thank you.
Mr. Coleman. I have a question about the safe
haven laws. So petitioner points out that in
all 50 states, you can terminate parental rights, by
relinquishing, a child after abortion.
And I think the shortest period might have been 48 hours, if I'm
remembering the data correctly. So it seems to me seeing in that
light, both Roe and Casey emphasize the burdens of
parenting and insofar as you and many of your Ami Ki focus on the
ways in which forced Being forced motherhood would hinder
women's access to the workplace and to equal opportunities.
It's also focused on the consequences of parenting and
the obligations of motherhood that flow from pregnancy.
Why don't the safe haven laws? Take care of that problem.
It seems to me that it focuses the burden, much more narrowly.
There is without question and infringement on bodily autonomy,
which we have another contexts, like vaccines.
However, it doesn't seem to me to follow that pregnancy.
And then Parenthood are all part of the same burden.
And so it seems to me that the choice more focused would be
between, say, the ability to get an abortion at 23 weeks or the
state, requiring the woman to go 15, 16 weeks more and then
terminate parental rights at the conclusion.
Why didn't you address the safe haven laws?
And why don't they matter? I think they don't matter for a
couple of reasons. Your honor first, even if some
of those laws are new, since Casey, the idea that a woman
could Is a child up for adoption, has of course, been
true since Rose. So it's a consideration that the
court already had before it, when it decided those cases and
adhere to the viability line. But in addition, we don't just
focus on the burdens of parenting and neither did Roe
and Casey. Instead, pregnancy itself is
unique, it, imposes, unique, physical demands, and risk on
women. And in fact, has impact on all
of their lives and their ability to care for other children.
Other family members on their ability to work.
And in particular in Mississippi, those risks are
alarmingly high. It's 75 times more dangerous to
give birth in Mississippi than it than it is to have a
pre-viability abortion. And those risks are
disproportionately threatening the lives of women of color.
So are you saying? I mean, actually, as I read Roe
and Casey, they don't talk very much about adoption.
It's a passing reference that that means out of the
obligations of Parenthood. But as I hear this answer, then,
are you saying that it's the right as Conceive of it is
grounded, primarily in the bearing of the child, the caring
pregnancy and not so much. Looking forward, into the
consequences on professional opportunities and work life and
economic burdens. No, your honor.
I believe it's both and and that is exactly how Casey talked
about it. It talked about the two strands
of cases that supported. The right one, was the strand of
cases supporting bodily integrity and it cited.
Two cases like cruising and Riggins versus Nevada and the
second was a strand of cases support.
Um decisional autonomy and specifically decisions related
to child bearing marriage and procreation decisions like
Griswold loving. And so it's really both strands
that were relying on here. May I ask you a question about
star decisis counsel your colleagues on the other side
have emphasized that Casey rejected Rose, trimester
framework and replaced it with an undue burden standard.
They argue that the undue burden standard was Not well known to
the law before that, and then they argue that the undue burden
standard has evolved over time to in ways.
The court has found difficult to agree upon in Heller stat.
For example, if they point out in their briefs that the court
seemed to suggest that a court should consider.
Both the benefits and the burdens associated with the
proposed restriction in June, medical more, recently, the
court splintered on, on that same, Question, whether benefits
could be considered are only burdens.
And so the argument goes that this is proved to be, putting
aside, all the other obviously difficult questions.
In the case that the standard itself has proved difficult to
administer and that that is relevant to the star decisis
analysis. And I just wanted to give you an
opportunity to respond. Yes, your honor at 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
Galatians not prohibitions, in the state has conceded that this
is a Prohibition. In fact, that's the title of
this law is an act to prohibit abortion after 15 weeks.
And the only thing that's at issue in this case is the
viability line. And the viability line has been
enduring Lee 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
Sly unanimously 30. So it's been an exceedingly
workable standard. And if I may return to your
question mr. 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 a
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.
So She just wanted it that that's helpful.
I think I just want to make sure I understand what you're telling
me counseling it. 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 is that a fair understanding what you're
telling the court? No, your honor?
I believe that would be workable, I believe.
That if I may clarify believe, the undue burden test has been
workable for regulations that. I understand that, if it were to
apply, if the court were to and 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. 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 KC, which includes the viability line, I'm
asking, I know. We're fighting the hypothetical
here Council, right? Except the hypothetical,
hypothetically. The court were to extend the
undue burden standard to regulations prior to viability,
would that be workable, or would that not be workable in your
view without viability? Would not be workable, your
honor because it would ultimately, again always come
down to a claim that states can borrow 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's not a constant.
I appreciate that clarification. Thank you.
Just a follow-up on that. I read your briefs, your brief
to say that the only real options we have our to reaffirm
Roe and Casey, as they stand, or to overrule 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 argument that the State has presented is what
we're responding to their, which is that all of the state's
arguments including their Alternatives, which are undue
burden, without viability would be the equivalent of overruling
Casey and row. Because the viability line is
the central holding of those cases.
Casey mentioned it. No fewer than 19 times and, and
the court in June medical, just a year ago, affirmed that the
viability line is, the central holding of both Casey and row.
But you do emphasize that the court drew the line at Viability
and row and reaffirm that in case the and that is certainly
something that 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 Pro-choice and pro-life.
That the line really doesn't make any sense that it is as
Justice blackmun, himself described it arbitrary.
The woman's 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 is arbitrary because it Cledus
counts, the woman's interest but viability of does a woman have
dozens 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.
You agree with me at least on that point, that woman still has
the same interest in terminating her pregnancy.
See after the viability line has been crossed.
Yes, your honor. But the court balance, the
interest in an ordering them interested station on.
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 your honor.
But what the court said is that those philosophical differences,
couldn't be resolved. It was that what?
I'm, that's what I'm getting at. What?
Is 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
requires, certain independent characteristics, but viability
is dependent on medical technology and Medical Practice.
It has changed. It may continue to change.
No, your honor. It is principal because in
ordering the interest at stake, the court had to set a line
between conception and birth and it logically looked at the
fetuses ability to survive separately as a legal line
because it's objectively verifiable and doesn't require
the court to resolve the philosophical issues at stake.
I just want to focus on Starry decisis for a little bit.
I found my colleague Justice. Breyer is comments quite
compelling. I'm not quite sure.
Earth, how they play out in in KC?
It is certainly true. That we cannot base our
decisions on whether they're popular or not with the people.
Casey seem to say, we shouldn't base our decisions, not only on
that, but whether they're going to Whether they're going to seem
popular it. 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 superstar e
decisis but it's Superstar decisis for what are regarded as
by many as the most erroneous decisions.
Do you think there is that categories?
Or is it just normal star eat? Decisis.
I think it is precedent on precedent, your honor because
Casey did the stereo decisis analysis for row.
So, the question before this court is whether that's, Terry
decisis, analysis was egregiously wrong and if I may
answer your earlier question about whether viability was
squarely at issue in Casey, it clearly was your honor a Pages
869 2871, the court squarely addressed by ability because the
government had made the argument that viability line are
appreciate that. Casey addressed it, but that's
different than Saying it was an issue.
It said it was the sensible Central principle of row because
it was pretty much all that was left after they were done
dealing with the rest of it and the regulations in Casey had no
applicability or not, depending upon where viability, was they
applied throughout the whole range period.
So if they didn't say anything about viability, it's like what
Justice blackmun said in when discussing among his colleagues
which is a good reason? And not to have papers out that
that early is that they don't have to address the
line-drawing, it all in row and they didn't have to address the
line-drawing. It all in Casey.
I disagree with that your honor because the undue burden test
incorporates, the viability line, that was what the court
was, assessing the regulations of guests, whether they imposed
a substantial obstacle in the path of a woman before
viability. And if a Prohibition like this
law isn't a Anshel obstacle, the nothing would be.
So, 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 viability
line. Maybe it's a very interesting
question that I think Justice para, Tres Tew, it's usually
just philosophical, but I think it has B here.
When I read Casey, it's not just one on one, you know, to P is
greater than 1. Casey plus rho is greater than
its, they're making a point that we're an institution, perhaps
more than of Court of Appeals. Or District Court.
It's Hamilton's point no purse. 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 he's seeing 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 rear
case, the Watershed case where people are really opposed What
both sides? And they really fight each
other. Is there 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 to 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 star reconsiderations sorry, decisis
overruling, his are really there in Spades, double triple
quadruple, and then they go through and show their not 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've ever, if,
when that occurred to you, I don't want to overrule the story
that I wouldn't want the court to overrule The Starry decisis
section of KC You say and that's what that's what I think is
being brought up and maybe I haven't made it clearer but I've
tried to yes. Your honor.
I think the point that the court was making was that the fact
that some states may continue to enact laws in the teeth of the
courts 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
President, this is Thomas. And he further Back to my
original question. If I were, 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 has interpreted Liberty to include the right, to
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 the court.
That's how the court has interpreted the Liberty clause
for over 100 years, in cases going back to Meyer.
Griswold carry, loving Lawrence. Yeah.
But it's, and I mean, all of those sort of just come out of
lochner, the so it's that we've dropped part of it.
So I understand what you're saying but what I'm trying to
focus on is if we is to lower the level of generality, or at
least be a little bit more. Ethic in the old days we used to
say, it was a right to privacy that the court found in the due
process substantive due process clause, okay.
So Orion subsidy of due process and 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 of women being able to End their
pregnancies. But 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
that makes sense because otherwise, the Constitution
would reinforce the historical discrimination against women.
This is Justice. Alito How are you just mentioned
the common law. So let me ask you a couple of
questions about history. Did any state constitutional
provision recognize that abortion was a right Liberty or
immunity in 1868 when the fourteenth amendment was
adopted? It.
No your honor, but it had been allowed under the common law for
many years. There's any judicial decision at
that time or shortly or immediately after 1868
recognized That abortion was a right Liberty or immunity.
There were State High Court decisions shortly before then
your honor talking about the ability of women to end a
pregnancy before quickening. What's 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 and once the court recognizes that that liberty
interest deserves heightened protection, it does need to draw
a workable line and viability is aligned that logically balances,
the interests, take the brief for the Starkel Association says
that abortion was not legal before a quickening in 26, out
of 37 States. The time when the fourteenth
amendment was adopted, is that correct?
That is correct because some of the states had started to
discard the common law at that point because of a
discriminatory view that a woman's proper role was, as a
wife and mother of you that the constitution not Rejects, and
that's why it's appropriate to do the historical analysis at a
higher level of generality in the face.
S of that, can it be said that the right to abortion is deeply
rooted in the history and traditions of the American
people? Yes, it can.
Your honor again at the founding women were able to end their
pregnancy under the common law. And in fact, this court in
glucksberg specifically, decide discussed Casey as a decision
based on history and tradition, and it note 19 specifically
called out and relied on Rose conclusion, that at the time of
the founding, and well into the 1800s, women had the ability to
end a pregnancy. See what was the the principal
source that the court relied on in row for its historical
analysis? Who was the author of that 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 a historical analysis.
There's also a brief on behalf of several key American
historian associations that go through that history in detail
because there's even more information now that supports
Rose 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, the text and history that The
Constitution's 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 continue because the
Constitution is neutral, that this court should be
scrupulously neutral on the question of 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 scrupulously
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 want to give you
a chance to respond to that? Yes, a few points.
If I may May your honor. First, of course, those very
same arguments were made in KC and the court rejected them
saying that this philosophical disagreements, can't be resolved
in a way that a woman has no choice in the matter.
And second, I don't think it would be a neutral position.
The Constitution provides a guarantee of Liberty.
The court has interpreted 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,
your honor, and if they're not able to make this decision, if
states can 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 when I ask a question about Starry decisis and to think
about how to approach that here, because there's been lots of
questions picking up on Justice Barrett's, questions and others
and history helps think about star decisis as I've looked at
it and the history of how the courts applied star decisis and
when you really We dig into it, history tells the somewhat
different story, I think than is.
Sometimes 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 case is overruled, Preston
Brown V board, outlawed separate, but equal.
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 which required police to give warnings
when the right to rule about the right to remain silent and to
have an attorney present, two suspects and criminal custody
Lawrence V, Texas said that the state may not prohibit same-sex
conduct, Mapp versus Ohio, which held that the exclusionary rule
applies to state criminal prosecutions to exclude evidence
obtained in violation of the Fourth Amendment Gideon versus
rain Wainwright, which guaranteed the right to counsel
and criminal cases. Oh berga fell which recognized a
constitutional, right to same-sex marriage in each of
those cases. And that's a list and I could go
on And those are some of the most consequential and important
in the courts history. The court overruled precedent
and it turns out if the court in those cases had had listened and
they are presented in art with arguments, in those cases
adhered a precedent in brown V, board adhere to + e, on West
Coast Hotel and here to Atkins and adhere to lochner.
And if the court had done that in those cases, this 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
precedent. So, the question on starts, Isis
is why? If?
And I know you just screw with what I'm not saying.
The if if we think that the prior precedents are seriously
Long if that why then doesn't the history of this Court's
practice with respect to those cases, tell us that the right
answer is actually the return to the position of neutrality and
and not stick with those precedents in the same way that
all those other cases didn't. Because of the view that a
previous precedent is wrong. Your honor has never been enough
for this court to overrule and it certainly shouldn't be in
enough here. When there's 50 years of
precedent instead, the court has required something else a
special justification and the state doesn't come forward with
any special justification. It makes the same exact
arguments. The court already considered and
rejected and it's Terry decisis analysis and Casey and in fact
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 mrs.
Barrett I want to ask you a follow-up question and the chief
was asking about the viability line, and if that was the right
place, if that's the right line to draw.
So let's take it out of the question of stare decisis.
And imagine that there's a state constitution that's identical to
the 14th amendment's 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, Friends at 27 weeks.
And so that state supreme court says, we think that the right
exists, you know, in a in an absolute sense that the state
cannot take away the right up to 27 weeks.
And then after that adopts, an undue burden standard.
As a matter of first principles 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
obviously more principled. They're obviously more workable
than viability because of the stereo decisis content.
I am in, that's the row framework basically the
trimester why wouldn't that be workable?
If you pick a line and say the end of the second trimester, 27
weeks? Third trimester States interests
increase. I don't understand why 27 weeks
is less workable than 24. I'm not trying to suggest it is
your honor and what I was trying to suggest is that the Ability
line is a principled and workable line, so to change it,
there would have to be a new line.
That's obviously more principled than more workable.
And, and the line that the court has drawn actually that started
two sizes. I'm asking as a matter of first
principles, as a matter of first principle, the viability line
makes sense. Because if the Kant the state
constitutions, a matter of that potential judgment, it's not
constitutionally required as a matter of first principles
because in fact, we could decide to be more protective and say,
27 weeks. And the second trimester, you
could your honor but the 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. And once the court recognizes
that interest, it does need to draw a line.
As it does in many other constitutional context like the
fourth and fifth amendment and the viability line.
As I mentioned, makes sense because it focuses on the
fetuses, ability to survive separately which is an
appropriate legal line because it's objectively verifiable and
doesn't delve into philosophical questions about when life
begins. Yeah.
Thank you, counsel. General pre longer 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 societal reliance
Since the real world effects of overruling Roe and Casey would
be 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 and
row and reaffirmed, and Casey, it would be an unprecedented
contraction of individual rights and a stark departure from
principles of story decisis. 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
the central component of women's Liberty.
General would you specifically tell me specifically State what
the right is? Is that specifically abortion?
Is that Liberty is at autonomy? Is it privacy?
The right is grounded in the Liberty component of the 14th
Amendment, Justice Thomas, but I think that it promotes interests
and autonomy, bodily Integrity, Liberty, and equality.
And I do You think that 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're
talking about abortion here. But what is confusing is that we
if we were talking about the Second Amendment I know exactly
what we're talking about. If we're talking about Fourth
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 in those other context with respect to those
other amendments has had to articulate what the text means
and the bounds of the Constitutional guarantees.
And it's done so through a variety of different tests that
Implement First Amendment rights.
Second amendment rights Fourth Amendment rights.
So I don't think that there is anything unprecedented or
anomalous about the right that the court articulated in Roman
Casey and the way that it implemented that right?
Right by defining the scope of the liberty interest by
reference to viability and providing that.
That is the moment when the balance of Interest tips and
when the state can act to prohibit a woman from 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 the pregnancy.
Yes thank you. I am interested in Justice cabin
noise long. Long Litany of cases in which we
overrule 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-à-vis, the individual, it's
the federal government and the states relationship to
individuals. And I see the Bill of Rights
including the Fourteenth 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 cabin are listed all of them,
invite virtually except for maybe one involved us,
recognizing and overturning. State control over issues that
we said belong to individuals. The right in Miranda to be
warned was an individual, right? Correct.
That's right. Justice Sotomayor.
And I think that that is a key distinction with the list of
precedents, the Justice Kavanaugh was relying on.
I think that there are really two key distinctions and the
first is that in the vast, majority of those cases, the
court was actually taking the issue away from the people and
saying that it had been wrong before not to recognize a right
now. I think that matters because it
goes straight to Reliance interests here.
The court would be doing the opposite, it would be telling
the women of America that it was wrong that actually the ability
to control their bodies and Perhaps the most important
decision that can make about whether to bring a child into
this world is not part of their protected Liberty.
And I think that that would come at tremendous cost to the
Reliance that women have placed on this, right?
And on societal, Reliance in what this right has meant for
further. Influence quantity is a good
point. In this may be my fault.
I'm talking about Pages 854 2863 in the Casey case and I've
already used up too much time. I can't read those pages out
loud, but they do not Include the list that Justice Kappa
nawwww 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.
But there are complex criteria that she's talking about that
link. To the position in the rule of
law of this court. So I would say is you have to
read them before. Beginning to say, whether they
are overruling or not overruling, in the sense meant,
they're calling for special concern, they say in those, I
maybe I'd mentioned to wait a minute.
Of course, plus he was wrong, when decided, but just a minute
also, remember, Plessy 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.
He said, are you going to sit here in the middle of the
depression and tell me? That lock mirror with its other
cases and pure just about pure less a fair that we can run the
country that way. I mention that because I'd want
people to read those 15 pages with care.
And that's why I said that, if you had anything to add to my
plea, to read it, please do well Justice Breyer.
I agree completely. I have read those pages and
reread them many times, and I think that this is actually
another key to Sting ssion from the cases that Justice Kavanaugh
was referring to. And that is, as I understand
those passages in Casey, the court carefully walked through
each and every story, decisive factor that this court focuses
on it. Looked at workability of the
viability, rule doctrinal, underpinnings, legal, and
factual developments, and critically Reliance interests
and down the line and found that the case for reaffirming row was
overwhelming and in that situation, when every factor
that the court consults to determine whether to retain
precedent councils in favor of retaining, I think Casey
properly perceived that a decision to overrule.
Nevertheless, perhaps based on occlusion that conclusion, that
the justices thought the case was wrongly decided in the first
instance would run counter to the ability of story decisis to
function as a Cornerstone of the rule of law in this context.
Is it your argument that a case can never be over World?
Simply because it was egregiously 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 material. Early new argument and
Mississippi hasn't done. So in really, so suppose plus u
versus Ferguson was reargued in 1897.
So nothing had changed, would it not be sufficient to say that
was a egregiously wrong decision on the day?
It was handed down and now it should be overruled.
It certainly was egregiously wrong on the day that it was
handed down Plessy, but what the court said, and by analyzing
Plessy to Brown and Casey was that what had become clear is
that Factual premise, that underlay, the decision.
This idea that segregation didn't create a badge oven for
inferiority had been entirely mistaken.
So it is real. Is it your answer that we needed
all the experience from 1896 to 1954 to realize that plus he
was, was wrongly decided, which answer my question.
How did come before the court in 1897?
Should it have been overruled? Or not?
I think it should have been overruled, but I think that the
factual premise was wrong in the moment, it was Has decided in
the court realized that and clarified that when it
overruled. So there are circumstances in
which a decision may be overruled properly over world
when it must be over World, simply because it was
egregiously wrong at the moment. It was decided, I think every
other story does not correct actor, likewise would have
justified overruling in that interest, that actually it would
run counter to any notion of reasonable.
Reliance that it was not a workable rule that it had been
come and an outlier in our understanding of fundamental
freedoms. Well, there was a lot of It was
a lot of Reliance on Plessy that the South built up a whole
society based on the idea of white supremacy.
So there was a lot of Reliance. It was real, 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
still don't understand. I still don't have your answer.
Clearly Canada decision. Be overruled simply because it
was erroneously wrong. Even If nothing has changed
between the time of that decision, on 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 on a conclusion that
the decision was wrong. It has always applied.
The story decisis factors and likewise found that they warned
overruling in that instance, and Casey did that it applied the
story decisive factors. If story decisis is to mean
anything. It has to mean that that kind of
extensive And 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 can form a stable
foundation of the rule of law General.
You've talked a number of times about the Reliance interests
here and I think I'd like you to say a little bit more about that
because, you know, sometimes when we talk about Reliance
interest that's like there's a rule of law and you look at it
and you say, oh, somebody will enforce my contract because of
this Rule and has a very kind of grounded.
See 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 does how do they cash
out on the ground? Well, there are multiple
Reliance interests here. As I think, Casey correctly,
recognized Casey pointed to the individual Reliance of women in
their Partners who had been able to organize their lives and make
important life decisions against the backdrop of having control
over this incredibly consequential.
And whether to have a child and people make decisions in
Reliance on 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.
And so, I think on a very individual level, there has been
profound Reliance and it's certainly the case.
That not every woman in America has needed to exercise this,
right? Or has wanted to but one in four
American women have had an abortion and for those women the
rights secured by Rowan Casey has been critical in ensuring
that they can control their bodies.
He's and control their lives and then I think there's a second
dimension to it. The Casey also properly
recognized and that's the 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 versus Wade but
just about every person in America knows what this Court
held. They know how the court has
defined. This concept of Liberty for
women and what control they will have in the situation of an
unplanned pregnancy. And for the court to reverse
course If now, I think would run counter to that societal
Reliance, and the Very concept we have of what the quality 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
contraceptives, contrary to the salute.
The, your adversary's brief in fact, 19% of the Women in
Mississippi are uninsured, so they don't have money to pay for
concert contraceptives. So, but why they're point in
their brief was, you know, contraceptives if you use them,
the failure rate is very small etc, etc.
How can there be real Reliance? So could you address that issue?
Of course. So first, this is not a new
circumstance, since Roe and Casey contraceptives existed in
1973. And in 1992, and still, the
court recognized that unplanned pregnancies would persist, and
deeply implicate, the liberty, interest of women, but I think
even on the facts, the state is mistaken.
Here a contraceptive failure rate in this country is at about
10% using the most common methods that means that women
using contraceptives. Approximately one in ten will
experience an unplanned pregnancy in the first year of
use alone, about half of the women who have unplanned
pregnancies were on contraceptives in the month that
that occurred. And so I think the idea, That
contraceptives could make the need for abortion.
Dissipated is just contrary to the factual reality.
You also mentions or maybe it was your co-counsel that life
changes for women after 15 weeks.
That's exactly right Justice Sotomayor.
And I think that 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.
Shoo by looking at the People For Whom the laws of
restriction, not those for whom it's irrelevant.
So the question is, why would women need access to abortion
after 15 weeks? And what is the effect on them?
And there are any number of women who cannot get an abortion
earlier, they don't realize that they're pregnant.
That's especially true of women who are young or don't have have
an experienced a pregnancy before or their life
circumstances change. As you refer to Justice
Sotomayor, they lose their job or their relationship breaks
apart, or they have medical complications, or 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 logistical
arrangements to be able 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
interest in forcing them to continue with that pregnancy.
Thank you. General following up on that,
with that argument be true in terms of viability as well.
In other words, what your discussion of the Reliance
interests and the ability of women and men to control their
lives in reliance. 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 there.
You have to hypothesize people who have planned their lives,
according to a 24, whatever weak limit.
It is, but not a 15-week limit on abortion, right?
Well, I don't think the court has ever Sized Reliance with
that kind of person. I think here, the, I, the force
of the viability line is that it's clearly, demarcated, the
scope of a woman's protected, liberty interest in this
context. And the state is not actually
asking this court to replace it with a clear 15-week line that
would provide some measure of continued protection for this,
right? They're asking the court to
reverse the liberty interest altogether or leave it up in the
air. And if that were to happen then
immediately states with six-week band's, eighth week, bands,
10-week bands, and so on would seek to enforce those with no.
And guidance of what the scope of the liberty interest is going
forward? Well, that may be what they're
asking for but 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 a biological
justification that it marks the point in pregnancy, when the
fetus is capable of meeting a bird John Hart really explain
was a complete syllogism. That's the definition of
viability. It's not a reason that viability
is a good line. Well, it's focused on the idea
of fetal separateness and I think that that is a line that
also Accords with the history and tradition in this country of
abortion regulation. SRI to the state's arguments
here at the time of the founding and foremost of early American
history woman 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 act to borrow that.
So, I think that the viability line also aligns with history
and tradition in that respect, just as Thomas.
Alright, you heard my question to council 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 interest 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, but if I understand the question, you were 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 row, recognize the states
have interest that exists from the outset of pregnancy.
But with respect to this specific, right to abortion,
there are also profound liberty interest of the woman on the
other side of the scale and not being forced to continue with
the pregnancy, not being forced to endure childbirth and to have
a child out in the world and the State's arguments.
Here seem to ask this court to look only at its interests and
to ignore entirely those incredibly witty interests of
the woman on the other side. Thank you.
Just his part. Straight.
Just as Gorsuch any further. I just want to make sure I
understand your response to the Chief Justice.
If this court will reject the viability line.
Do you see any other intelligible principle that the
court could choose? Well, 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 at stake here and I am sorry for
interrupting. But that wasn't my question.
I understand. Steady.
I understand that point fully by the end of this argument 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 line that
the government would propose. We're not at you in emphasize
that if 15 weeks were approved and we'd have cases about 12 and
10 and 8 and 6. And so 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.
You know, I think the factors the court would have to think
about are, what is most consistent with president?
What would be clear and workable and what would preserve the, 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 counts.
Appreciate just as Cavanaugh. You make a very forceful
argument and Notify, critically important interests that are at
stake in this issue. No doubt about that.
The other side says, though, that they're 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 in the interest
of the fetus. And the problem, I think the
other side, Say in 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 does
the Constitution say about that. And I just want to get your
reaction to what the other side's theme.
Ms. And I've mentioned 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, state Supreme
Court's, the people being able to resolve this and they'll be
different answers in Mississippi, and New, York
different answers in Alabama than California because they're
two different interests at stake and the people in those States
might value those interests somewhat differently.
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 legislators to decide
whether to honor them or not and it's true.
Different rules would Prevail throughout the country if this
court were to overrule Roe and wait, Roe and Casey.
But what that would mean is that women in those States who are
refusing to honor their rights and who are forcing them to
continue to 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 file of to Justice
kagan's question about Reliance. I'm just trying to nail down on
and I asked miss riggleman this question too and I'm not sure
that I fully understand the government's position or mr.
Coleman's position. So, 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.
And I mentioned the safe haven laws.
To miss Ray Coleman. And it seems to me, I fully
understand the Reliance interest there, the Airy ones Justice
Kagan was referring to. And then there, the more
specific, excuse me, specific ones about a women's access to
abortion as a backup form of birth control and the event that
contraception fails, so that she need.
Not bear the burdens of pregnancy.
But what do you have to say to petitioners argument that those
Reliance interests? Do not include the Reliance
interests of parenting and bringing a child into the world?
When maybe that's not the best? Best thing for her family or her
career, I think the state is wrong about that and I think
where the analysis goes wrong and Reliance on those 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 to, for adoption.
That itself is its own Monumental decision for her.
And so I think that there's nothing new about the safe haven
laws, the or, at least nothing new about the availability of
adoption as an alternative Roe and Casey already took it.
Of that fact. And I think that there are
certainly, of course, all of the the bodily Integrity interests
that we refer to, but also the autonomy and Troost retain and
forces. Well, okay, so it's the, the
Reliance interests in the right to be able to choose to
terminate the pregnancy rather than having to terminate the
parental rights. I think that that is part of it.
Yes. And I think for many women that
is an incredibly difficult choice, but it's one that this
court for 50 years has recognized must be left up to
them based on their beliefs, and their conscience and their
determination. The Nation about what is best
for the course of their lives. Thank you General.
Rebuttal.
General Stewart. Thank you, mr.
Chief justice. I'd like to do my best to make
three points first picking up where you just left off.
Just as Barrett on Safe, Haven laws, the respondents.
In this case, I believe as your honor pointed out, have
emphasized parenting burdens being a lead or the lead reason
that women seek abortions. I would emphasize Safe Haven
laws as best. I've been able to find first,
came into existence in 1999 in Texas there now.
Ubiquitous and you're correct Justice Barrett that they were
leave that huge burden. I would also add that as to To
burdens during pregnancy I would emphasize that contraception is
more accessible and affordable and available than it was at the
time of lowercase e 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 borscht
abortion at Jackson women's health is $600 for the abortion
additional costs and further fees according to to my friends
that respondents and their Amici.
Why there are also additional costs related to travel taking
off, time off of work, accommodations all of those
sorts of things. Whether somebody's uninsured or
not, the cost of contraception are consistently significantly,
less than those. Number two.
I think Jesse's cabin. Are you had it exactly right
when you when you use the term scrupulously neutral.
I think that's a very good description of what we're asking
for here. I think it's the problem, and
the value that is evaded. The court and will continue to
evade this court under Roe and Casey.
But that is exactly, exactly. Actly.
Right? This is a hard issue it involves
and and I would emphasize your honor that as you said, their
interest here on both sides, their interests for everyone
involved. This is unique for the woman.
It's Unique for The Unborn Child to whose life is at stake in all
of these decisions. It's Unique for us as a society
and how we decide. If the state's get to get, get
to legislate on this issue, how to decide and how to weigh,
these tremendously momentous issues in closing.
I would say that. In his dissent in Plessy versus
Ferguson, Justice Harlan emphasized, that there is no
caste system here. The humblest in our country is
the peer of the most powerful. Our constitution neither knows
nor tolerates distinctions on the basis of race.
It took fifty eight years for this court to recognize the
truth of those realities in a decision.
And that was the greatest decision that this court ever
reached. We're running on 50 years of
row. It is an egregious lie.
Wrong decision that has inflicted tremendous damage on
our country and will continue to do so.
And take Able human lives. Unless, and until this court
overrules, it we ask the court to do that.
So in this case, and uphold the state's law.
Thank you, your honor. Thank you, general counsel the
case is submitted, so there you go, my friends.
That's it, that was the whole shebang.
Unbelievable. Those questions from those
justices, the men. Oh my God.
So that's it. My friends, you've now heard the
whole argument historic day one of is one woman.
One historian said today, maybe maybe the worst day, certainly
the worst day in our lifetime for women.
In our United States government and it may go down in history
that way that women were spoken of and talked about questioned
in this way in our top Court in this democracy.
Thank you for listening to it. Thank you for an advance
committing to joining the movement to stop this.
This may take a serious serious effort, amongst all of us.
They have our voices heard, they must not be able to get away
with us. Thank you for listening to
rumble today. Thank you to our executive
producer bezel, Hamden or editor sound engineer.
Nick, quas, Donald Bornstein, our chief of all things that
basil and I can't do and also and Harrison Malcolm for all
your help here on this podcast. Thanks to all of you who are
listening, thanks to all of you who are going to help continue
and Dissipate in the struggle. We are the majority, our voices
have to be heard. And when we're talking about the
majority gender, All of us have a responsibility to stop this
madness. Thank you very much for tuning
into this today. Thank you.
I won't keep quiet. I won't keep quiet.