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tv   Justices Hear Case on Mississippi Abortion Law  CSPAN  May 3, 2022 12:46pm-2:41pm EDT

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the reaction you are seeing now is the same as the reaction in june or whenever we expect this to happen. a huge reaction to both sides. this is something very unusual and comes at a time of internal issues with the court. with just retirement got leaked before, there was this whole slack at the court that a justice didn't wear a mask for oral arguments in january. it seems like the court has become --.
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host: charlie who -- lawrence hurley who covers the court. thank you for joining us today. >> in december of last year, -- a mississippi law banning most abortions after 15 weeks of pregnancy. the case challenge roe v. wade giving women to choose whether or not to have an abortion. >> oh yea oyez, oyez. all persons have business to
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give their attention for the court is now sitting. >> we will hear argument this morning in case 1392, dom's versus johnson help organization. >> roe v. wade and planned parenthood hot hours country. they have no place in the constitution. they have damaged the democratic process, poisoned the law. for 50 years they cap court at a political battle they can never resolve.
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the mississippi law process -- prohibits abortions after 15 weeks. it leaves months to obtain an abortion. the court struck the law down. it didn't matter that the law applies when an on born child is undeniably human, and when the abortion is brutal. because the law prevents abortions, it is unconstitutional no matter what. the holding to those cores is that people can protect an unborn girl's life when she can barely survive outside the wound not any earlier when she needs a little more help. that is not the world the constitution promises. the constitution places its trust and its people. the people make this country work. when an issue affects everyone,
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it belongs to the people. roe and casey have failed but the people if given a chance will succeed. this court should overrule roe and casey and uphold state law. >> general stuart, you focus on the right to abortion, prudence seems to focus on simony and privacy. does it make a difference on privacy or autonomy or more specifically on abortion? >> whichever one of those you are focusing on, particularly if you are focusing on a right to abortion, each of those stars to become a stent removed from what is provided in the constitution.
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the constitution does provide certain aspects of autonomy and the like. but going directly from general concepts of autonomy, privacy of valuing technique to a right is not how we traditionally in this court does. whichever one you look at, a right to abortion, abstract concepts. >> you said this involves the taking of a life. how does that -- your analysis? >> and marks out the unbelievably deniable ramifications of any other areas of suicide, a host of important
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areas that are important to dignity, autonomy, freedom. it marks it out as one of the unique areas where this country has taken that to the people. it marks off how problematic --. it would be a undue burden. i was alluding to know standard other than directional bases. that puts matters back with the people. it is going to be problematic. if the court were not inclined, the choice would be a undue
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burden -- >> the court in that second part is about what principles should be used to overrule a case like roe. they say we are special. what is special about it? they say it is rare. they call it a watershed. why? because the country is divided? because feelings run high.
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in the country, for better or worse decided to resolve their differences by this court, putting down constitutional --? it should be more on during to rule a private case. whether that case is right or wrong. feelings run high. it is particularly important to show what we do. overturning a case is grounded in principle and not social
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pressure. not political pressure. only the most convincing justification can show the overruling was anything but. that is an unjustified -- that the case asserts authority. to overrule under fire, in the absence of the most compelling reason, to re-examine a war -- a war should decision, beyond any serious question. the last sentence after they quote on the same week, they say overruling and under ruling
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under pressure would result in the courts's loss of confidence in the judiciary. the ability of the court to exercise judicial power and function as the supreme court of a nation dedicated to the rule of law. that is the opinion of the court. it is about how we approach this. it is 505 854 -- what do you say to that? >> i would say a couple of things. we have closely gone through the factors. more than half of the breed -- half of the brief --
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>> some bad things and some good things in the eyes of some people. stewart: in the eyes it was -- many people wanted to have the matter returned to them so they could decide it locally, deal with it the way they thought best and have a fighting chance to have their view prevailed. which was not given to them as a result under casey. it emphasized, the last 30 years, workability, developments in the law, factual developments that state account for. on all the metrics casey was describing, casey fails. casey was not a great example of
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letting president stand. it rehashed rose reasoning. it overturned abortion decisions. it adopted a new standard on the law. justice breyer: you accept the way the special rule, the principles for deciding whether to overturn such a case as roe, you accept that. stewart: i would say yes in part, justice breyer. particularly when casey looked outward and some pressure, there was pressure on all sides. this is a hot button issue for everyone.
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that is why it belongs to the people. it couldn't provide a good enough example it was grew on principle. it has been very different than some of the others. justice sotomayor: there is a line that casey drew of viability. -- liability. with respect to undue burden, the right of a woman to choose, the right to control her own body has been clearly set since casey and never challenge. you want others to reject that and adopt something different.
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15 justices over 50 years, or i should say 30's since casey, have reaffirmed that basic liability. four of them have said no.
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i could name any other set of rights, including the second amendment, by the way, there were many political people who believe the court aired -- erred as seeing this as a personal right. if people believe it is political, how will the court survive? >> i think the concern makes it imperative that the court reach a decision in the factors that have been laid out.
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it gave a factual view of things that have changed since roe. justice sotomayor: what are the advancements? mr. stewart: fetal pain and what
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we know the child is doing and look like and is fully capable -- justice sotomayor i've easily under that standard, the minority and a gross believe fetal pain happens before 20 42 25 weeks. it is not found in science. i don't see how that really adds anything to the discussion. a small range of doctors believe pain can be felt, it doesn't mean there has been that much of a difference.
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>> we have an example were roe and casey improperly conclude states can't decide that. in own born -- an unborn baby being poked and recoiling. justice breyer: i know what it said about the viability but i know it wasn't briefed or argued. mr. stewart: it was not an issue the way it was an issue here. i think it was to the extent the court had to reaffirm and the wait to read that is something other -- >> was it an issue in a row? >> the law didn't have a viability. >> if i remember correctly, it is an unfortunate source but it
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is there, justice blackmun said the viability line was -- and presumably had some insight. >> casey said that was the central case after throwing out the trimester which many thought was the core principle. wes it the viability in casey? >> it is a little hard not to take the core at its word when it emphasized that viability is the central part of roe's holding and saying it reaffirms that. it did not face a law like this.
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>> i don't think a response by a fetus necessarily means it can feel or has consciousness. so my question is -- what has changed in science to show that
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the viability line is not a real line? that a fetus cannot survive? that is what both courts said, that you had no experts say that there is any viability before 23 to 24 weeks. >> the fundamental problem with viability, it is not something that rests on science, the viability is not tethered to anything in the constitution in history or tradition. it is a legislative line. it is quite reasonable for the legislature to draw that. justice sotomayor there so much that is not in the constitution, including the fact that we have the last word, marbury versus madison, nothing in the constitution that says the
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supreme court is the last word on what the justice needs. it was totally novel at that time. what the court did was reason that that was what was intended. and here in casey and roe, the court said there is inherent in our structure that there are certain personal decisions that belong to individuals and states can't intrude on that. we recognize them in terms of the religion parents will teach their children, we recognize it in their ability to educate at home if they choose, they just have to educate them. we have recognize that privacy in people's choices about whether to use contraception or not. we recognize it in the right to
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choose who they are going to marry. i fear none of those things are written in the constitution. they have all been deterred from the structure of the constitution. why do we now say that somehow roe versus casey are so unusual that they must be overturned.
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>> the background of those cases, and some mention from time to time, griswold, lawrence, these are cases that draw clear rules that you can't ban contraception, can't ban marriage of the same sex, clear rules that have strong reliance
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interests and have not produced negative consequences. also i would add it, none of them involve the purposeful termination of a human life. so those two features puts all of those safely out of reach that the court overrules. >> i am sorry to interrupt pig you may be making progress in the part that i read. i think you can go back 150 years and now we can go back 200 years or they think there have only been two cases, which for what they call watershed, special, overruling rules over applied pretty want this to be the third or do you think there were more and if so what were they? >> your honor, i think there is quite a bit different.
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it is never bad is it bad to overrule? justice breyer: there were two that they mentioned and they didn't want casey and don't want roe to be the third. in your opinion, you just answered, all of these are not rising to that level. there any that do rise to the level, in your opinion? mr. stewart: i don't think i necessarily agree with the watershed characterization. i can't inc. of another that hits the radar. the problem is, we are dealing with a right that doesn't have a basis in constitutional text and in conflict with those.
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>> do you think that no state is going to think otherwise, that no people in the population are going to challenge those cases in court? mr. stewart: we will always have a diversity of use.
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justice sotomayor? isn't that the point? that is what we are doing under undue burden but we haven't meant doing on the viability line. mr. stewart: neither has worked well. it disregards estate interest and the undue burden standard has all of the problems. justice sotomayor: how is your view not biblical. when a life begins has been debated by philosophers since the beginning of time and is still debated. when you talk about a right that takes away from the state the ability to protect a life, that is a religious view, isn't it? it assumes that a fetus is life at when?
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when do you suggest they begin that way? mr. stewart: her honor, -- justice sotomayor: aside from religion. mr. stewart: it is recognize that before viability we are talking about human organism and i think the philosophical questions mention all of those reasons that have been debated and are important and are reasons to return this to the people because the people should get to debate these hard issues. this court does not have that. justice sotomayor: when does putting a woman at risk enter the calculus, meaning right now forcing women who are poor, and that is 70 for high percent of the population, henan much higher percentage of those in mississippi who elect abortions
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before viability, they are put at a tremendously greater risk of edible complications that have ending their life, 14 times greater, to give birth to a child full-term than it is to have an abortion before viability. now the state is saying to these women, we can choose, not only to physically complicate your existence come up you at medical risk, make you poor, because we believe what? mr. stewart: to answer, the question you lead look and expanded on but is still on the same issue is, as to when does a woman's interest enter?
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as far as we are concerned it is there all the time. our argument is all of the interests are there and -- justice breyer: are those who take the position that the rights of a person would begin at conception or at complete other than viability? mr. stewart: i think there is a wide array of people of all different views and of no faith views who it reasonably have that view. it is not tied to a religious view and i don't think this course jurist prudence -- jurisprudence would run in to that. justice sotomayor: we started with an important principle in any case in here for the reasons that casey mentioned, especially so. to prevent people from this
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court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to the courts membership. what strikes me about this case, and you come here very honestly saying we want you to discard the entire set up and then even if you don't do that, we want you to discard the viability line which you have acknowledged again today. success is the heart and central principle of a row. so it has to be a justification, a strong justification, and a case like this beyond the fact that you think the case is
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wrong. i guess what strikes me when i look at this case is that not much has changed its roe and casey. people think it's right or wrong based on the things they have always thought it was right and wrong or. -- wrong for.
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there is a difficult balance. some people thought they made the right balance and some people made the wrong. at the end we are in the same place as we were then, except that we are not, because there has been 50 years of water under the bridge, the years of decisions saying that this is part of our law and part of the fabric of women's existence in this country and that that places us in an entirely front situation than if you had come in 50 years ago and made the same arguments. i guess i just wanted to hear you react to that. mr. stewart: i would emphasize a couple things. the fact that so much time has passed, let's say that nothing had changed. that is not a point in roanne
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casey's favor. if nothing had changed, they would be just as bad as they were 30 years ago or 50 years ago. the court divides over what lead group even means. lower cards are left knowing -- not knowing what to do. a fundamental problem, it has been emphasized in his opinion that the problem for lower court judges is the constitution doesn't give them an answer for this. judges unfortunately have to look upon themselves and they are never going to solve the issues. the people can deal with it and work and compromise and reach different solutions. if we don't do that, we are going to have all of this damage and at some poor it is -- point
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the court may say this is just enough. justice harlan had it right in the sense when he recognized that all are equal and he should be able to recognize they are real values. we think there is some balance to be drawn here. if the court doesn't do that it is going to be continued damage. >> i have a few questions. question was whether all elective abortions are unconstitutional and i think it is fair to say that when you got
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to the beef on the merits you shifted gears and talk a lot more about whether or not roe and casey should be overruled. mr. stewart: we emphasized this is important in only the court can resolve it. it was said that the court will have to reevaluate it and we ask the court to at least get rid of any suggestion of a viability line. we had to take into account that this has lost in every court of appeals. we raised the issue but once the court had only the first question we presented every argument as we signaled we would present a full-blown constitution argument with that fundamental question.
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it was a shift to go to the merit stage. that question includes -- >> it includes the broader arguments you raised. i am not suggesting that. but it had to include the viability question as well because that is what you talked about in that one sentence. mr. stewart: what i would emphasize is the merits arguments is the validity of roe and casey, is there a viability rule based on the constitution? those are not that cap occasion or lengthy, the harder questions are -- should the court overruled and take that momentous step and that is why we devote space to that very important issue. we have walked through all those points. focusing on the arguments come that is what we have done.
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mr. stewart: the court will have to be looking at many other areas because this has a uniquely problematic story
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concise and there are quite settled and clear rules and don't have considerations against them. by willing roe and casey the court won't have to go down that road and a lot of those decisions are quite readily growing double in traditional factors. >> i just wanted to get your quick sense of how your intermediate concessions would work if the viability line was discarded and it became a standard overall that according to you is unclear, what that would leave the court with going forward. i am thinking about the great variety of regulations that states could pass, so whether
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one is 15 weeks or 12 weeks and nine weeks or a variation of a wide variety of other dimensions. what would that look like coming to the court, how do you think we would be able to deal with that or how would you counsel us to deal with that if the court were to go down that road? mr. stewart: part of why we counsel to overrule full scale that the only way to get rid of a number of the problems and when you have the undue burden standard, it is a hard standard to apply good is not objective in the court looks to the record in each case. court said under this record this is not an undue burden. if you couldn't say for certain that a certain number of weeks would be ok and not in another place. that is the world we have under
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casey. if the court on hold this law with the undue burden standard, it would be for those features. it is one of the very strong reasons to go all the way and overrule roe and casey. >> i want to be clear about what you are arguing and not arguing. to be clear, you are not arguing that the court somehow has the authority to itself to prohibit abortion or that this court has the authority to order the states to prohibit abortions, so i understand it, correct? you are arguing the constitution is silent and therefore neutral on the question of abortion, it in other words it is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps congress to resolve the democratic process. is that accurate?
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mr. stewart: we are seeing it is left to the people. justice kavanaugh: if you were to appeal, the majority of states could and presumably would continue freely allow abortions. some states would be able to do that even if you prevail under your view. is that correct? mr. stewart: it allows all interest to have a full voice and many that we see that would be moving to change their laws in a more restrictive direction. justice barrett: i have a question that is a follow-up to one justice breyer was asking you. i think a lot of what we had was about the benefits of starry decisive. it is part of the doctrine and that there are some circumstances in which overruling is possible.
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we have bowers versus hardwick. but in thinking about the core of this case, how should we be thinking about it? justice breyer pointed out that in a casey and in some respects it was a different conception of starry conciseness is that it took into account public reaction. is that a factor that you accept ? are you are going we should minimize that factor? is there a difference of rules and is it to that casey identified brown and west coast hotel as watershed decisions? are there distinct considerations applicable to what may be a watershed? mr. stewart: what i of a sized -- what i emphasized, it just to make sure, on the legitimacy of
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the court looking outward, i think casey was unusual in that regard. i think it was a mistake and i think it is something that is in conflict with this court's structure and approach as an independent branch looking at the constitution rather than looking without and i think that is one reason why traditionally the court and some of its greater overruling sin is not looking without her they were saying this was wrong and we know it was wrong today and it has led to terminal consequences and we should get rid of it.
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>> mississippi's been on abortion two months before viability is unconstitutional under decades of precedent. this is to be to dismantle this to force women to remain pregnant and give birth against their will. the court should refuse to do so for three reasons. first, a high bar. in casey, this court carefully examined and rejected every possible reason for overruling roe, that ending pregnancy before viability was the rule of law and a component of liberty they could not renounce.
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the question then is not whether roe should be overturned, but whether it is egregiously wrong to adhere to the central holding . casey and roe were correct. for a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all of the risks and life altering consequences that brings is a fundamental deprivation. preserving a woman's right to make this decision five protector by balancing take third, and the right to abortion would repel women backwards. two generations have now relied on this and one out of every four woman makes the decision to end a pregnancy. mississippi's ban would hurt women with a major health or life changed during the course
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of a pregnancy. part women who are twice as likely to be delayed in accessing care and young people are those in contraception who take longer to recognize a pregnancy to avoid around damage to women's liberty, equality, and the rule of, the court should affirm. >> counsel, i just have one question. i saw from your brief you are relying on an autonomy theory. >> is bodily integrity and the ability to make decisions in family, and childbearing. >> some years after we decided casey, we had a case of the south carolina, i believe, that involved a woman who had been convicted of criminal child neglect because she ingested cocaine during pregnancy.
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in her case was post viability. so it doesn't fit into the facts of this case. if she had ingested cocaine pre-viability and had the same negative consequences, do you think the state had an interest in enforcing that law against her?
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justice thomas: 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. >> those issues aren't deposed in this case and i would say the states could regulate both before and after viability to preserve feel life and the woman's health. again, that is not what this case is about. it was about a ban on abortion weeks before viability and the court has been clear is to take
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the decision away from the woman until viability. until that it is her decision to make. >> the point you made about the impact about women in their place in society, those were certainly made in a row as well. what we have before us is a 15 week standard. are you suggesting that the difference between 15 weeks and viability are going to have the same sort of impact you were talking about? >> yes, your honor, i believe they would people who need an abortion after 15 weeks are often in the most challenging circumstances. our who had perhaps a major change, a job loss, young people or first-time pregnancies that
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are delayed in recognizing or poor women have more trouble navigating access to care. if they are denied the ability to make this decision because there is a ban after 15 weeks, they will suffer all of the consequences that the court has talked about in the past and data has been very clear over the last 50 years that abortion has been critical to equal participation in society and their health and their lives. it is the legalization of abortion and not other changes that have had these benefits for women in society. those benefits are clear for education, for the ability to pursue a profession and the -- >> putting that aside, if you think that the issue is one of
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choice, that women should have a choice to terminate the pregnancy, that supposes that there is a point at which they had the fair choice, opportunity , and why would 15 weeks v an inappropriate line? so if viability doesn't have anything to do with choice, but if it is an issue about choice, why is 15 weeks not enough time? >> for a few reasons. first, the state has conceded that some women will not be able to obtain an abortion before it 15 weeks and this will buy them from doing so in a reasonable possibility standard would be completely unworkable for the court. it would be less principled and less workable in viability and some of the reasons are that without viability there will be no stopping point. states will rush to ban abortions at any point in
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pregnancy but is defending was similar arguments refusing to defend the 15 weeks. >> i would like to focus on the 15 week ban because that is not a dramatic departure from viability. is the standard that the vast majority of the country that we get to the viability standard that we share that with the people's republic of china and north korea? i don't think you have to be looking at international law to set our constitutional standards . first, that is not correct about international law. the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier. canada, great britain, and most
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of europe allows abortions up to viability. >> what you mean even if they have nominal lines? >> some countries have a nominal line of 12 weeks or 18 weeks but they permit access to abortion after that for health reasons, socioeconomic reasons so there are james aren't comparable and they don't have the same types of barriers that we have here. if the court were to move the line substantially backwards and 15 weeks is nine weeks before viability, it is quite a bit backward. it may need to consider the rules because it cuts the time in half, then those barriers are going to be much more important. >> thank you.
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justice barrett: you and many of yours focus on the ways in which forced parenting, motherhood would hinder women's access to the workplace and to equal opportunities. it is also focused on the consequences of parroting and mother that flow from pregnant sea. why don't the safe haven laws take care of that problem? it focuses the burden much more narrowly it is without russian an infringement on bodily autonomy. however -- is without question an infringement on bodily autonomy. however, it goes that pregnancy and parenting of the same burden. it seems that the choice or focus would be say to get an abortion at 23 weeks or the
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state requiring woman to quote 15, 16 weeks more and then terminate parental rights at the conclusion. why didn't you address the safe haven laws? >> i think they don't matter for a couple of reasons. even if some laws are a nuisance, casey, that a woman could place up for adoption has been true since row and it is the consideration the court had before it when it decided most cases. in addition, we don't just oak us on burdens of parenting and neither did a row. instead, pregnancy is unique and poses unique physical demands and risk on women and has an impact on all of their lives to care for their children and other family members and ability to work and in particular in mississippi, those are high, 75 times more dangerous to give birth in mississippi then it is
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to have a pre-viability abortion and those risks are disproportionately threatening the lives of women of color. justice barrett: in casey data talk much about abortion -- adoption. as i hear this answer, are you saying that it is the right that you conceive is grounded primarily in the bearing of the child and the pregnancy and not looking forward into the consequences on professional opportunities in worklife and economic burdens? >> no, your honor here it i believe it is both. casey talks about the two strands that supported right spear when was the strand of casey supporting bodily integrity and cited cases and the second was the strand of cases supporting decisional autonomy, and decisions related to childbearing, marriage, and procreation. it is really both strands are relying on.
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>> may i ask you a question? your colleagues on the other side have emphasized that casey rejected roe's trimester framework and replaced it with an undue burden standard. they argue the undue burden standard was now 12 known to law before that, and then they argued the undue burden standard has evolved over time to in ways the court has found it difficult to agree on. it is pointed out in briefs that the court seems 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 that same question. this proved to be putting aside all of the other obviously
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difficult conditions in the case. it proved too difficult to administer and that relevant. >> yes, your honor. the undue burden is not an issue in this case. the state has conceded that the prohibition and it is the title of this law is an act to prohibit abortion after 15 weeks. the only thing at issue is the viability line and the viability line has been workable in the lower federal courts applied it consistently and uniformly for 50 years and the circuit below had no difficulty striking down it anonymously. it has been an exceedingly workable standard and if i may return to your standard, race mobile possibility standard would not be workable. it without me boiled onto an argument that states can prohibit a category of women
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from exercising the constitutional right nearly because of the number of people. estate would never say that it could ban religious services on a wednesday evening for example, simply because those people attend religious services on another night. >> i actually just wanted -- that is helpful, i think. i just want to understand what you are telling me that if the court were to and apply undue burden. is that a fair understanding what you're are telling the court? >> i believe the undue burden test has been workable for regulations. >> if the court were to -- and i
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thought this is what you are saying in response to the chief justice and please correct me if i am -- what is your argument against applying the undue burden standard? >> as the court laid out in casey includes the viability -- >> we are fighting the hypothetical here, counselor. hypothetically, if the court were to extend the undue burden standard to regulations prior to viability, would that be workable or would that not be workable. >> it would not be workable because it would ultimately always come down to the claim that states can bar a certain category of people from exercising this right simply because of the number of people in the category and that is not standard. justice gorsuch: i appreciate that. >> just to follow-up on that, i read your brief to say that the
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only real options we have are to reaffirm row and casey as they stand or to overrule them in their entirety. you say that quote there are no measures here. is that the correct understanding of your brief? >> your honor, it is certainly the arguments the state has presented is what we are respondent to is that the arguments including alternatives with our undue burden without viability would be the equivalent of overruling casey and row because the viability line is the central holding. casey mentioned it no fewer than 19 times and the court affirmed the viability line is the central holding of both casey and row. rulings. >> to emphasize that the court to the line at viability and row and reaffirmed that in casey, is something we have to take very seriously into consideration
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suppose we were considering that question now for the first time. i know you know the arguments about the viability line better than i do. what would you say in defense of that line was to mark what would you say to the argument that has been made by people who are pro-choice and pro-life that the line does not make any sense. it is as the justice described it, arbitrary. if a woman wants to be free of the burden of pregnancy that does not disappear the moment that the viability line is crossed, is that correct? >> i think the state used viability as arbitrary because it discounts the woman's interest. >> does the woman have the same
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interest that she had before viability in being free of this pregnancy? that she no longer wants to continue? >> viability is a principled mine. >> i am trying to see if it is a principled line. look at this on the others, the fetus has an interest in having a life. that does not change, does it? from the point before viability to the point after viability? >> it does not, the philosophical differences could not be resolved in a way -- >> what is the philosophical argument for saying this is the appropriate line? there are those who say that the
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rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. viability is dependent on medical technology and practice. it has changed and may continue to change. >> in ordering the interest at stake, the court has to set a line between conception and birth. it look at the fetus' ability to survive separately because it is objectively verifiable and does not require the court resolved resolve the philosophical issues at stake. >> i want to focus on story decisiveness -- stari decisis. i am not sure how they play out in casey, we cannot base our
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rulings on if they are popular. casey said we should focus on whether they are going to seem popular. it seemed to me to have a paradoxical conclusion, the more popular in the decision, the firm or the court should be in not departing from prior precedent. it is a supers -- super stare decisis for what are regarded as the most erroneous decisions. i do think that there is that category or do you think it is a normal stare decisis? >> casey did the stare decisis for roe, it is the decision if it was wrong and if i may answer your earlier question about whether viability was squarely an issue, it was.
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the court squarely addressed viability because the government had made the argument. >> i appreciate that casey addressed it, that is different than saying it was an issue. it was the central principle of roe because that was all that was left after they were done dealing with the rest of it. the regulations in casey had no applicability or not depending on where viability was. they applied through the whole range period. it is like what the justice said in the discussion of why it is not it is -- why it is good to not have papers out that early because they do not need to address the line drawing in roe. they did not have to address the line drawing in casey. >> the undue burden test incorporates the viability line. that is where the court was
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associating -- assessing the regulations in the path of a woman before viability. if a prohibition is not a substantial obstacle, nothing would be. the issue before the court and the court said on this page in adopting the undue burden test it was not disturbing viability. >> it is an interesting question , it is usually just philosophical but it has bite here. when i read casey, it is not one on one, kc plus row is greater than, --casey plus roe is greater than, perhaps more than the court of appeals? or a district court. there is no purse, no sword. we have to have public support.
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that comes primarily since casey . i think it was o'connor who wrote that. it comes primarily from people believing that we do our job, we use reason, we do not look to see what is popular and that is what we have seen. the problem with the super case in which we have heard mentioned , with the super case like this is the rare case, the watershed case where people are really opposed on both sides, they vilify each other, is there going to be words to say we are just politicians and that is what kills us as an american
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institution. that is what we are saying. we are looking at him for that, we are looking to and that they say is a reason why when you get a case like that you better be sure that the normal stare decisis overruling is in spades, double, triple, quadruple. that is the paradox. maybe you think i made an argument that there is not one but really, in my head, i am thinking i am not sure. i do not know if you have ever thought about this or when that occurred i do not want to overrule, i do not want the court overrule a stare decisis section of casey. that is what i think is being brought up.
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maybe i have not made it clear but i have tried to. >> the point that the court was making was the fact that some states may continue to enact laws in the court's precedent and it has not been enough of a reason to overrule. that has been the case for a number of decisions. some people continue to disagree with them is not a basis to discourage the precedent. >> back to my original question, if, i know your interest here is in abortion. i understand that. if i were to ask you what constitutional right protects the right to abortion, is it privacy? autonomy? what would it be? >> liberty, the textual protection in the 14th amendment
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that a state cannot enterprise a person of liberty without due process of law and the court has interpreted liberty to the right to physical autonomy and the right to end a pre-viability pregnancy. >> all of the above? >> that is how the court has interpreted the liberty clause in cases going back to meyer griswold, so on. >> all of those, out of lochner. we have dropped part of it. i understand we are saying what i am trying to focus on -- what you are saying but what i am kind to focus on is too lower the level of generality or more specific. we used to say it was a right to privacy that the court found in the due process. or in due process, i am trying to get you to tell me what are we relying on now?
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is it privacy? autonomy? what is it? >> it continues to be liberty and the rights exists in whatever generality the law applies. when it comes to decisions related to family, marriage, and tiled bearing, the court has done the analysis and that makes sense because otherwise the constitution reinforces the historical discrimination against women. >> justice alito? >> you mentioned the common law, let me ask you a couple of questions about history. did any constitutional provision recognize that abortion was a right, liberty, or immunity in 1868 when the 14th amendment was adopted? >> it had been allowed under the common law for many years. >> was there any judicial decision at that time or
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immediately after recognized that abortion was a right, liberty, or immunity? >> there were high court decisions before then, talking about the ability of women to end a pregnancy. >> what is your best case? >> for the right to end a pregnancy? >> allowing a state to take control of a woman's find and force her to undergo the physical demands, risks, and life altering consequences of pregnancy is a fundamental to provision of liberty -- deprivation of liberty. that deserves heightened protection, and needs to draw a workable line and viability is the line that bounce the interests at stake --bounds the interests at stake. >> abortion was not legal in 26 out of 37 states at the time when the 14th amendment was adopted. is that correct?
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>> some of the states started to describe the common law because of a discriminatory view that a woman's proper role was of a wife and mother. that is what it is appropriate to do the historical analysis at a higher level of generality. >> the right to abortion is deeply rooted in the history and traditions of the american people? >> the founding women were able to end their pregnancy under the common law and this court in lucks bird discussed casey as a decision based on history and tradition and in 19 relied on roe's conclusion that at the time of the founding and into the 1800s women had the ability to to end a pregnancy. >> what was the principal source that the court relied on in row for the historical analysis? who was the author of that article? >> i do not remember the author,
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i know that the court spent many pages of the opinion doing a historical analysis and a brief on behalf of several key american historians that go through the history in detail because there is even more information now that supports roe's legal conclusion. >> i think the other side would say that the core problem here is that the court has been forced by the position you are taking and the cases to pick sides on the most contentious social debate in american life. to do so in a situation where they say that the constitution is neutral on the questionable abortion, the constitution is neither pro-life or pro-choice on the question of abortion. they would say it should be left to the people, to the states, or
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to congress. 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. because they say the constitution does not give us the authority, we should leave it to the state, we should base group illicitly neutral on the question and that they are saying here that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue. i think that is their argument, i want to give you a chance to respond to that. >> the very same arguments were made in kc and the court rejected them saying that the philosophical disagreement can
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be resolved in a way that a woman has no choice in the matter and it will not be a neutral position, it provides a guarantee of liberty, it includes the ability to make decisions related to childbearing, marriage, and family would women have a right to liberty under the constitution and if they are not able to make this decision, if states can take control of women's body and force them to indoor pregnancy and childbirth, they would never have equal status under the constitution. >> i want to ask a question about stare decisis and to think about how to approach that here. there are a lot of questions, in history, think about stare decisis as i have looked at it and the history of how the courts apply it. when you dig into it, history tells a somewhat different story than is assumed.
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think about the most important cases, the most consequential cases in this court's history. there is a string of them or the cases are overruled, brown v, our lord several -- brown versus board which outlawed separate but equal. west coast hotel regulates business. police giving warning when the right -- regarding the right to remain silent. the state may not prohibit same-sex conduct. the exclusionary rule applies to state prosecutions to exclude evidence obtained in violation of the fourth amendment. the right to counsel in criminal cases. in each of those cases, that is
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a list and i could go on, those are some of the most consequential. the court overruled the president and it turns out that if the court in those cases had listened and they were presented with arguments in those cases that adhere to precedent, they adhere to plessis, west coast hotel, adhere to lochner, if the court had done that in those cases, the country would be a different place. i assume you agree with most, if not all of the cases that are lifted -- that i listed. the question on stare decisis is why, if, we think that the prior precedents are wrong, if that,
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why does the history of this court's practice with regard to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those in the same way that all of the other cases did not. >> the view that a previous precedent was wrong is not enough previously and it should not be enough here when there is 50 years of precedent. this state does not come forward with any special justification, it makes the same argument the court already considered and rejected and the analysis since there is nothing different. there is no less need today than 30 years ago or 50 years got women to be able to make this fundamental decision for themselves about their bodies, lives, and health. >> thank you.
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>> i want to ask you a follow-up question. the viability line and if that was the right place or line to draw. let us take out of the question of stare decisis and imagine there is a state constitution that is identical to the 14th amendment. a state supreme court has to decide as a matter of state constitutional law what the scope of an abortion right is. the second trimester ends at 27 weeks. the supreme court says we think that the right exists in an absolute sense, the state cannot take away the right until 27 weeks and then it drops -- adopts an undue burden standard. is that excitable under constitutional law? -- executionable under
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constitutional law? that is the framework, the trimester. why was not not be workable if you pick a line, 20 seven weeks, third trimester, see interests increase. i do not understand why 27 is less workable than 24? >> the viability line is a principal, to change it there would have to be a that is more principled and workable and the line that the court has drawn actually -- >> as a matter of first principle. >> it makes sense because. >> it is not constitutionally required because we could decide to be more protective and say 27 weeks. >> you could but the viability line makes sense given that protection for liberty because it comes from the woman's
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liberty in resisting state control of her body. it does need to draw a line as it does in many other constitutional contexts. the viability line makes sense because it focuses on the ability to survive separately which is an appropriate legal line because it is viability and does not dive into philosophical questions of when life begins. >> mr. chief justice, may it please the court, this court has correctly recognized that the constitution protects a woman's right to decide whether to end a pregnancy before viability. that guarantees that the state cannot force a woman to carry a
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princi to term, and give birth -- carry a pregnancy to term and give birth. the real world effects would be severe and swift, nearly half of the states already have or are expected to enact bands on abortion at all stages of pregnancy, many with exceptions for rape or incensed. women who are unable to travel hundreds of miles to gain access to abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, health, and course of their lives. if this course renounces the liberty interests and reaffirms in kc it would be an unprecedented attraction and a stark departure of stare decisis . the court has never revoked a right and that is so fundamental to so many americans and so central to their ability to participate fully and equally in society.
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the court should not overrule this component of women's liberty. >> would you tell me, specifically state what the right is? is it abortion? is it liberty? is it economy? -- autonomy? privacy? >> the right is grounded in the liberty component but it promotes interest in autonomy, bodily integrity, liberty, and equality. it is the right to abortion, the right of a woman to control without the state forcing her to continue a pregnancy, whether to carry that baby to term. >> i understand we are talking about abortion here. what is confusing is that we were talking about the second amendment, i know exactly what we are talking about. it is written, it is there.
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what specifically is the right here? >> i think of that in the other contest -- contexts, articulating what the text means and the bounds of the constitutional guarantees and it has done through a variety of different tests. i do not think that there is anything unprecedented or odd about the right. it implemented the right by designing the scope of the liberty interest in reference to viability and providing that is the moment when the bounds of interest tips and in the state can act to prohibit a woman from hitting an abortion based on its interests in protecting the fetal life at that point. >> the right specifically is abortion? >> it is the right of a woman to continue with a pregnancy, yes. >> i am interested in the litany
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of cases in which we have offered full precedent and we have. you did call this one unprecedented. as i see the structure of the constitution, the body of it is the relationship of the three branches of government. then, there is the relationship of the federal government to the state. through our incorporation of the 14th amendment of the state, vis-a-vis the individual, it is the federal government and the state's relationship to individuals. i see the bill of rights the 14th amendment as setting the limits, giving individual freedom to do certain things. stopping the government from intruding. in those liberties, in those
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bills of rights. of all of the decisions set for it may be involve us recognizing and overturning the right suite say belong to individuals, the right in miranda to be warned with an individual right, right? >> that is a key distinction with a list of precedents, there are two key distinctions and in the vast majority of those cases, the court is taking the issue away from the people and saying it had been wrong before not to recognize it. it is telling the woman of
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america it is wrong, that the ability to control their bodies and the most important decision and they can make about whether to bring a child into this world is not part of their liberties. that would come at tremendous cost to the alliance that women have placed on this right and societal reliance on what this right means. >> i am talking about pages 854-863. i cannot read those pages out loud. they do not include the list that the justice has. they do include two, one is brown, the second is west coast hotel versus parish. you can add the gay rights cases as a third which would fit the criteria. they are complex criteria that she is talking about that link to the position in the rule of
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law of this court. i will say you have to read them before beginning to say whether they are overruling or not overruling in the sense they are calling for special concern. of course plus he was wrong when decided. plessy said that separate but equal is a badge of inferiority. no, they said it is not. all you have to do is open your eyes and look at the south my friend and you see whether it was or was not in 1954. we made a similar point are you want to sit here in the middle of the depression and tell me that lochner was sure -- pure
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laissez-faire? i mentioned that because i want people to read those 15 pages with care. that is why i said that. if you have anything to add to my plea to read it, please do. >> i have read those pages and i think this is another key distinction from the cases that the justice was referring to. as i understand these passages in casey, the court walked through every factor and talk about workability as a viability rule. legal and factual development and reliant interests and down the line and found that the case for reaffirming row was overwhelming -- roe. was overwhelming. casey said a just to overall -- overrule said that the case was
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wrongly decided would run counter that stare decisis is a rule of law in this context. >> can a case never be overrule because it was egregiously wrong? >> this it would have to come forward with some kind of material argument and mississippi has not done so. >> suppose plessy versus ferguson was re-argued in 1897. nothing had changed. would it not be sufficient to say that was a wrong decision on the day it was handed down? it should be overruled? >> it was egregiously wrong, but what the court said in analyzing plessy to brown in casey, would have become clear that the factual premise of the under laid the decision, the idea that segregation did not create a badge of interiority was mistaken. >> we needed all of the
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experience from 1896-1894 to realize that plessy was wrongly decided? had it come before the court in 1897, should it have been overruled? >> the factual premise was wrong in the moment it was decided and the court realized that and clarified that when it overruled. >> there are circumstances in which a case must be overruled because it was egregiously wrong at the moment it was decided? >> every stare decisis would have run convert to any notion of reasonable alliance, it was not a workable rule, it had become an outlier in our understanding of fundamental freedom. >> there was a lot of reliance on plessy, the south build up a whole society based on the idea of white supremacy.
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there was a lot of wrong answers. it was improper reliance, reliant on an egregiously wrong understanding of what equal protection means read your answer is -- i do not understand, i do not have answer clearly. can a decision be overruled because it is wrong? even if nothing has changed between the time of that decision and the time when the court has been called upon whether it should be overruled? can you give me a yes or no answer? >> this court has never overruled in that situation based on a conclusion that the decision was wrong. it has always applied the stare decisis and found that they were not overruling in the instance. it applied the stare decisis factor. it has to mean that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent as an additional layer of precedent needs to be relied
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on and can form a stable foundation of the rule of law. >> you have talked about the reliance interest here and i would like you to say a little bit more about that. when we talk about reliance, it is likely rule of law and you look at it and say somebody will enforce my contract because of this rule and it has a very grounded quality to it. as casey talked about the reliance interests here, they are a little bit more airy. i want to get your sense of what are the reliance interests here and how does this cash out on the ground? >> there are multiple alliance interests here, casey pointed to the individual alliance of women and their partners to make important life decisions against the backdrop of having control over this consequential decision on whether to have a child. having that kind of reproduction control, decisions on where to
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live, or relationships to enter into, what investments to make, on a very individual level, there has been profound reliance and it is the case that not every woman in america has needed to exercise this right or has wanted to. one in four american women have had an abortion, that has been critical in ensuring they can control their bodies and control their lives. there is a second dimension and that casey recognizes and that is the societal dimension. the understanding of our society even though this has been a controversial decision, this is a liberty interest of women. the case then everyone agrees but every person in america knows what this court held, how the court has defined this concept of liberty for women and what control they have in a situation of a unplanned -- an unplanned pregnancy. traverse what run counter to the relies and the concept we have of what the quality is guaranteed women is guaranteed
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-- of what equality is guaranteed women in this country. >> there can be some plants by some people about pregnancy -- plans by some people about pregnancy. women who are raped do not have a choice and not everybody can afford contraceptives contrary to your adversaries brief. 19% of the women in this state, mississippi, do not have money to pay for contraception. their point was contraceptives, if you use them, the failure rate is small. how can there be bias? could you address that issue? >> this is not a new circumstance since roe and
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casey, contraceptives existed before and the court recognized that unplanned pregnancy persists and impacts the liberty interests of women. contraceptive failure rate in this country is about 10% using the most common methods. women using contraceptives one in 10 will express an unplanned pregnancy in the first year of use alone. half of the women who have unplanned pregnancies were on contraceptives in the month that it occurred. contraceptives could make the need for abortion dissipate, it is contrary to the factual reality. >> your cocounsel said that life changes for women after 15 weeks. >> that is right. this is responsive to the questions of the chief justice. the impact of enforcing a 15
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week time in this case. the court has looked at the people, not the restrictions for who it is relevant. why would women meet access to abortion after 15 weeks and is the effect on them? there are any number of women who cannot get an abortion earlier, they may not know that they are pregnant, life circumstances change, they lose their job or relationship breaks apart or they have medical complications, for many women they do have the resources to pay for it earlier. a taste of money to raise the money to make the appropriate logistical arrangements to take time off of work and careful and have child care. for all of the women who need access to abortion after 15 weeks, the fact of the other women were able to exercise their rights does not diminish the impact on their liberty interests and enforcing them to continue that pregnancy. >> following up on that, what
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that argument be true in -- would that argument true in terms of viability as well? your discussions of the reliance interest in 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 have to concede. we are talking about a 15 week line. is that right? you have to hypothesize people who have planned their lives according to a 24 week limit, but not a 15 week limit on abortion, right? >> i do not think the court has analyzed that. the viability line is clearly
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demarcated the women's liberty in this context. we are not asking this court to replace it, they're asking the court reversed the liberty interest altogether or leave it up in the air. immediately, states with a six-week man and so on -- ban would enforce those without a scale of interest going forward. >> the issue before us today is 15 weeks. i wonder what the strength of your reliance arguments which sounded to me like being based on a total prohibition would be if there is not a total prohibition. as for as viability goes i do not see what that has to do with the question of a choice at all. >> as casey emphasized, the court testified that as having a
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biological justification now marks the point in pregnancy in which the fetus is capable of meaningful life. >> that is the definition of viability. it is not a reason that viability is a good line. >> focus on the idea of fetal separateness, that is a line that purports with the history of abortion regulation. the time of the founding and for most of early american history, women have had the ability to access abortion in the early stages of pregnancy and it was only when the fetus was separate that the state could act to bar that. the viability line aligns with history and tradition in that respect. >> you are my -- here are my questions counsel earlier about the woman who was convicted of criminal child neglect. what would be your reaction to
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that as far as her liberty in whether or not the liberty interests that we are talking about extends to her? >> i have to confess we have not read the specific case but if i understand the question you are posing it sounds as though the state is seeking to regulate for a child that has been born and injured while it was inside of the womb. we are not denying that a state has an interest there. we are not denying that the state has an interest here. this it has interests that exist from the outset of pregnancy. in abortion, there are profound liberty interests of a woman on the other cite out the scale, -- on the other of the scale. the state's arguments asked the court to look at its interests and ignore entirely the incredibly weighty interests of the woman on the others. >> let me understand your
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response, if this court rejects the viability line, do you see any other intelligible principle that the court could choose? >> it would be critically important even if this court were to reject the viability line to reinforce and reaffirm the fundamental and profound liberty interests. >> that was not my question. i understand that point fully. that is deeply clear to me. i am asking a question about what you think if there would be another alternative line that the government would propose or not? you even emphasized that 15 weeks was approved, we would have case is about 12 and 10 and six. is there a line in there that the government believes would be principled or not?
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>> i do not think there is any lined deck of a principled than viability. -- i do not think there is any line that is more principled than viability. viability has the advantage of being a rule of law for 50 years. >> you make a very forceful argument. you identify critically important interests that are as t steak -- important instruments at stake. there are fetal lives at stake as well. use the existing framework accommodates the interests of the pregnant woman and the interest of the fetus. the problem the other side would
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say and the reason this issue is hard is you have to accommodate both interests. you have to pick, that is the fundamental problem. one of interest has to prevail over the other. -- one of the interests has to prevail over the other. this is why this is so challenging, i think. the question becomes what is the constitution say about that? i want to get your reaction to what the other side's theme is. i have mentioned it, when you have those two interests at stake and both are important, why not, why should this court be the arbiter rather than congress, the state legislatures, state supreme court? the people being able to resolve this and there will be different
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answers in mississippi and new york. different answers in alabama and california because there are two different interests at stake and the people in those states may value those interests differently. why is that not the right answer? >> it is not the right answer because the court recognized that this is a fundamental right of women. the nature of fundamental rights is it is not left up tuesday legislatures to decide whether to honor them or not. it is true that different rules prevail, what that would mean is women in those states who are refusing to honor their rights and who are forcing their bodies to sustain a pregnancy and bring a child into the world have no recourse other than to travel of their able to afford it or to attempt abortion outside of the confines of the medical system or to have a child, even if that
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was not the best choice for them and their family. >> i have a follow-up about reliance i am try to nail down and i asked this question, i am not sure i fully understand the government's position or her position. you talk about reliance interests and you quote some of the language from casey about a woman's ability to participate in a social and economic life of a nation. i mentioned the safe haven laws and i fully understand the reliance interests, there are the more specific one about a woman's access to abortion as a backup form of birth control and that, shenzhen fails -- and that contraception fails she not bear the burden of pregnancy. what you say to the argument that those reliance interests not include the reliance interests of parenting and
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bringing a child into the world even when it is not the best thing for her family or career? >> the is wrong about that. where the analysis goes wrong is overlooking the consequences of forcing a woman upon her the choice of whether to get a child up for adoption. that is a monumental decision for her. there is nothing new about the safe haven laws or about the availability of adoption as an alternative. roe and casey took account of that fact and all of the bodily integrity interests and the economy interests pertained as well. >> the reliance interests and the right to terminate the princi rather than having to terminate? >> for many women it is a difficult choice but it is one this court has recognized must be left up to them based on
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their belief and conscience and determination on what is best for the course of their lives. >> rebuttal, general stewart? >> thank you. i would like to do my best to make three points. picking up where you left off on a safe haven laws, the response has emphasized parenting burden being a lead reason that women seek abortions. safe haven laws came into existence in 1999 in texas, they are ubiquitous. as to burdens during pregnancy, i would emphasize that contraception is more accessible and affordable and available than it was at the time of the cases. it serves the single of allowing
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if, when, and how many children and women has. the lowest cost abortion in georgia is $600 and the further costs and fees according to my friends who responded, there are additional costs related to travel and work, all of those kinds of things. whether someone is uninsured or not the cost of contraception is less than those. you had it right when you used the term scrupulously neutral. that is what we are asking for here. the problem and the value that has abated the court and will invade the court under roe and casey, that is right, there is a heart issue that involves both sides. this is unique for the woman and the unborn child too whose life is at stake in all of these decisions.
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how to decide and weigh these tremendous issues? in closing i would say in plessy versus ferguson, there is no cast system here. the homeless in our country -- the humblest in our country, it took 58 years for the court to recognize those realities and that is the greatest decision this court has ever reached. we are running on 50 years of roe, it has inflicted damage upon our country and will take innumerable human lives unless this court overrules it. we ask you to uphold the state's law. >> the case if submitted -- is submitted. >> chuck schumer is joined by democrats where they spoke about the draft supreme court decision overturning roe v. wade.


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