Dec 1, 2021
Supreme Court Hears Arguments on Mississippi Abortion Law, Roe v Wade Transcript December 2021
The Supreme Court heard oral arguments on December 1, 2021 over the new Mississippi abortion law. Read the transcript here.
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Speaker 1: (03:35)
The Honorable the Chief Justice and the Associate Justices of the Supreme Court of the United State. Oyez, oyez, oyez, all persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the Court is now sitting. God save the United States and this Honorable Court.
Chief Justice Roberts: (04:09)
We will hear argument this morning in 19-1392, Dobbs versus Jackson Women’s Health Organization. General Stewart.
General Stewart: (04:19)
Mr. Chief Justice, and may have please the Court. Roe versus Wade and Planned Parenthood versus Casey 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, they’ve kept this Court at the center of a political battle that it can never resolve, and 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.
General Stewart: (04:48)
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 when an unborn child is undeniably human, when risks to women’s surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional, no matter what.
General Stewart: (05:19)
Roe and Casey’s core holding, according to those courts, is that 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.
General Stewart: (05:34)
That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone, and when the Constitution does not take sides on it, it belongs to the people.
General Stewart: (05:57)
Roe and Casey have failed, but the people, if given the chance will succeed. This Court should overrule Roe and Casey and uphold the state’s law. I welcome the Court’s questions.
Justice Thomas: (06:08)
General Stewart, you focus on the right to abortion, but our jurisprudence seem to focus on, in Casey, autonomy, in Roe, privacy. Does it make a difference that we focus on privacy or autonomy or, more specifically, on abortion?
General Stewart: (06:38)
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 protect certain aspects of 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 this Court traditionally does due process analysis.
General Stewart: (07:09)
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. It’s grounded on abstract concepts that this Court has rejected in other contexts is supplying a substantive risk.
Justice Thomas: (07:21)
You say that this is the only Constitutional right that involves the taking of a life. What difference does that make, in your analysis?
General Stewart: (07:32)
Sure, Your Honor. I think it makes a number of differences. I’d mentioned two, in particular. One is, it really does mark out the unbelievably, profound ramifications of this area which, in many other areas, assisted suicide, a whole host of important areas that are important to dignity, autonomy, freedom, and important to matters of conscience. It marks it out as one of the unique areas where this Court has taken that important issue to the people. It’s something that implicates life and it just, I think, marks off, Justice Thomas, how problematic and unusual and how much of a break the Court’s abortion jurisprudence is from those other cases.
Justice Thomas: (08:13)
If we don’t overrule Casey or Roe, do you have a standard that you propose other than the liability stand?
General Stewart: (08:21)
It would be, Your Honor, a clarified version of the undue burden standard. I would emphasize, I think as Your Honor is alluding to that no standard, other than the rational basis review that applies to all laws will promote an administrable, workable, practicable, consistent 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 overrule Casey, the choice would be undue burden standard, untethered from any bright-line viability rule.
Justice Thomas: (08:54)
Justice Breyer: (08:54)
Well, I’d like to go to a different topic back to Casey. I assume you’ve read Casey pretty thoroughly.
General Stewart: (09:05)
Yes, Your Honor.
Justice Breyer: (09:07)
There are two parts. One, is they reaffirmed Roe. Put that to the side. The second is an opinion for the Court, not for three people, but for the Court. That second part is about what stare decisis principles should be used to overrule a case like Roe. They say Roe’s special. What’s special about it. They say it’s rare. They call it a watershed. Why? Because the country is divided? Because feelings run high, and yet the country, for better or for worse, decided to resolve their differences by this Court laying down a Constitutional principle, in this case women’s choice. But that is what makes it rare. That’s not what I’m asking you about. I want your reaction to what they said follows from that.
Justice Breyer: (10:11)
What the Court said follows from that, is that it should be a more unwilling to overrule a prior case. Far more unwilling we should be. Whether that case is right or wrong, than the ordinary case, and why. Well, they have a lot of words there, but I’ll give you about 10 or 20.
Justice Breyer: (10:35)
There will be inevitable efforts to overturn it. Of course there will. Feelings run high. And it is particularly important to show what we do, in overturning a case, is grounded in principle and not social pressure, not political pressure. Only quote, “The most convincing justification” can show that a later decision overruling, if that’s what we did, was anything but a surrender to political pressures or new members. And that is an unjustified repudiation of principles on which the Court stakes its authority.
Justice Breyer: (11:16)
Then there are two sentences I’d like to read, because they say they really mean this. The Court, not just three. “To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the court’s legitimacy beyond any serious question.”
Justice Breyer: (11:42)
And the last sentence, after they quote Potter Stewart on the same point, they say, “Overruling unnecessarily and under pressure would lead to contamination, the Court’s loss of confidence in the judiciary, the ability of the Court to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law.”
Justice Breyer: (12:10)
Now that’s the opinion of the Court, all right. And it’s about stare decisis and how we approach it. And I hope everybody reads this. It’s at 505, US854 to 869. All right. What do you say to that?
General Stewart: (12:28)
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 in stare decisis. More than half of our brief is devoted to stare decisis. We now have 30 years in the wake of Casey to see what Casey has done and what it hasn’t done.
Justice Breyer: (12:48)
It’s done some bad things, in the eyes of some people, and some good things in the eyes of some and people.
General Stewart: (12:54)
Justice Breyer: (12:54)
All Right, all right. Go ahead. You…
General Stewart: (12:55)
I’m sorry, Your Honor. What I’d emphasize, Your Honor, is that to the extent that… I would not say it was the people that called this Court to end the controversy. The people, many, many people, vocally really just wanted to have the matter return to them so that they could decide it locally, deal with it the way they thought best, and at least have a fighting chance to have their view prevail, which was not given to them under Roe, and then, as a result under Casey.
General Stewart: (13:22)
I’d also emphasized, Your Honor, that on stare decisis, just as I said, the last 30 years, workability, developments in the law, factual developments and states can’t account for. The workability, the undue burden and standard alone, many problems, on all the metrics that Casey was describing or the vast bulk of them, Casey fails.
General Stewart: (13:41)
I’d also emphasize this as well, Justice Breyer, that Casey was not a great example of simply letting precedent stand. It recast Roe’s reasoning. It overruled two of the Court’s most important abortion decisions. It jettisoned the trimester framework of Roe 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 stare decisis.
Justice Breyer: (14:08)
Okay. Can I take it that your answer is, yes? You accept the way the special rule, the rule for the rare watershed, the stare decisis principles for deciding whether to overturn such a case as Roe, you accept that and you think it’s met?
General Stewart: (14:32)
I would say, yes, in part, Justice Breyer. Here’s what I’d emphasize is that, I do think particularly when Casey looked outward and looked to what it saw as pressure, there were pressure on all sides. As Your Honor noted, this is a hot, difficult issue for everyone. 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 30 years has not seen any calming of that. It’s been very different from some of the Court’s other controversial decisions that have seen much more calm-
Justice Sotomayor: (15:09)
Council, what hasn’t been at issue, in the last 30 years, is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years, 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.
Justice Sotomayor: (16:18)
Now, the sponsors of this bill, the House bill, in Mississippi said, “We’re doing it because we have new justices.” The newest ban 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.”
Justice Sotomayor: (16:40)
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It’s what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education, it mentioned, and this one have such an entrenched set of expectations in our society, that this is what the court decided this is what we will follow. That we won’t be able to survive if people believe that everything, including New York versus Sullivan, I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right, as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the Court survive?
General Stewart: (18:04)
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 tech structure, history and tradition, and that carefully goes through the stare decisis factors-
Justice Sotomayor: (18:18)
Casey did that.
General Stewart: (18:19)
… we’ve laid out. No it didn’t, Your Honor, respectfully.
Justice Sotomayor: (18:21)
Casey went through every one of them. You think it did it wrong. That’s your belief. But Casey did that.
General Stewart: (18:29)
Justice Sotomayor: (18:31)
And you haven’t added much to the discussion in your papers as to the errors that Casey made, other than, I disagree with Casey.
General Stewart: (18:44)
Justice Sotomayor, maybe I can highlight, too. Casey gave one paragraph to the workability of Roe. It then adopted the undue burden standard, which is perhaps the most unworkable standard in American law. It gave about three paragraphs, if memory serves, to reliance, which doesn’t account for the last 30 years and the changes that occurred since Casey. It gave a brief, factual view to things that have changed since Roe. Those, of course, are not going to take account of the last 30 years of advancements in medicine, science, all those things.
Justice Sotomayor: (19:13)
What are the advancements in medicine?
General Stewart: (19:16)
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 from a very early-
Justice Sotomayor: (19:28)
General Stewart: (19:28)
Justice Sotomayor: (19:29)
… regular cases, Courts decide whether science fits the Daubert Standard. Obviously, under the Daubert Standard, the minority of people, a gross minority of doctors, who believe fetal pain exists before 24, 25 weeks is a huge minority, and one not well-founded in science at all. So, I don’t see how that really adds anything to the discussion, that a small fringe of doctors believe that pain could be experienced before cortex is formed, does it mean that there’s been that much of a difference since Casey?
General Stewart: (20:19)
We pointed out, as an example, Your Honor, of where Roe and Casey improperly preclude states from taking account for these things. They should be able to be concerned about the fact of an unborn life being poked and then recoiling in the way one of us would recoil-
Justice Sotomayor: (20:36)
Justice Breyer: (20:36)
General, I know what it said about viability in Roe, but was viability an issue in the case? I know it wasn’t briefed or argued.
General Stewart: (20:51)
It was not an issue, certainly the way it is an issue here, Your Honor. I think, to the extent that the Court had to reaffirm Roe, the way to read that as something other than dicta would be to-
Justice Breyer: (21:06)
I’m sorry, I don’t know whether I said, was it an issue in Roe?
General Stewart: (21:10)
Oh, in Roe.
Justice Breyer: (21:11)
General Stewart: (21:11)
I’m sorry, Your Honor. My understanding is, no. The law there didn’t have a viability tag that was inserted by…
Justice Breyer: (21:17)
In fact, if I remember correctly, it’s an unfortunate source, but it’s there, in his papers, Justice Blackman said that the viability line actually was dicta and presumably, he had some insight on the question.
General Stewart: (21:36)
I’d add, Your Honor, Justice Blackman and I think as well, his papers, pointed out the arbitrary nature of it and the line drawing problems in there, too.
Justice Breyer: (21:43)
And then in Casey, Casey said that that was the core principle or central principle in Roe, viability. It said that, after tossing out the trimester formula, which many people thought was the core principle, but was viability at issue in Casey?
General Stewart: (22:02)
I don’t think it was squarely an issue, Your Honor. Again, it’s a little hard not to take the Court at its word when it emphasized the viability is the central part of Roe’s holding and saying that it is reaffirming that. So, we kind of take that as it stands, but the Court has not… it did not face a law like this, certainly, Mr. Chief Justice.
Justice Sotomayor: (22:25)
May I finish my inquiry?
General Stewart: (22:27)
Of course, Justice Sotomayor.
Justice Sotomayor: (22:29)
Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and udderly brain-dead, responding to stimuli. There’s about 40% of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So, I don’t think that a response by a fetus, necessarily proves that there’s a sensation of pain or that there’s consciousness.
Justice Sotomayor: (23:16)
So, I go back to my question of, what has changed in science to show that the viability line is not a real line, that a fetus cannot survive. I think that’s what both courts below said. That you had no experts say that there is any viability before 23 to 24 months.
General Stewart: (23:45)
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 viability 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 a place to draw the line, but it’s quite reasonable for a legislature to draw the line elsewhere.
Justice Sotomayor: (24:07)
Council, there’s 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 was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended. And here in Casey and in Roe, the Court said, “There is inherent in our structure, that there are certain personal decisions that belong to individuals and the states can’t intrude on them.”
Justice Sotomayor: (24:57)
We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home, if they choose. They just have to educate them. We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry. I fear none of those things are written in the Constitution. They have all like, Marbury versus Madison, been discerned from the structure of the Constitution. Why do we now say that somehow Roe and Casey are so unusual that they must be overturned?
General Stewart: (25:50)
Well, Justice Sotomayor, I would emphasize two things. When you’re going beyond the Constitution, this Court has looked closely to-
Justice Sotomayor: (25:58)
No, what I’m saying is, they didn’t go beyond the Constitution.
General Stewart: (26:01)
Your Honor, they did not deduce those from the structure of the Constitution. They pointed to the 14th Amendment and reasoned that privacy in Roe, autonomy and similar values in Casey, led to a right to abortion. That’s not how this Court traditionally does things, including in the vast run of cases that Your Honor ran through. The Court looks to history and tradition, and here, those decisively reject the proposition that states cannot legislate comprehensively on abortion before, after viability, and all throughout.
General Stewart: (26:29)
So it’s history and tradition, Your Honor. I would also add, Your Honor, that those decisions, a great many of them not just draw from text history and tradition, but they draw often clear lines, very workable, have not led to the many negative stare decisis factors that we identify here.
Justice Barrett: (26:47)
General, would [crosstalk 00:26:48] Go ahead. Go ahead. [crosstalk 00:26:53]. Would a decision in your favor call any of the cases, that Justice Sotomayor is identifying into question?
General Stewart: (27:02)
No, Your Honor. I think for a couple reasons. First of all, I think the vast run of those cases, and some mentioned from time to time, Griswold, Lawrence, Obergefell, these are cases that draw clear rules, can’t ban contraception, can’t ban intimate, romantic relationships between consenting adults, can’t ban marriage of people of the same sex, clear rules that have engendered strong reliance interests, and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out, Your Honor.
General Stewart: (27:33)
Also, I’d add, none of them involve the purposeful termination of a human life. So, those two features, stare decisis and termination of a human life, Your Honor, puts all of those safely out of reach if the court overrules here.
Justice Breyer: (27:48)
Okay. So, I’m sorry to interrupt again, but we really might be making progress. In the part that I read of Casey, I think they think go back 150 years. Maybe now we can go back 200. They think there’ve only been two cases, which were what they call the watershed and where these special, tough overruling rules apply. You want this to be the third? Or, do you think there were more, and if so, what were they?
General Stewart: (28:19)
Well, Your Honor, I think there’s quite a bit of difference. I think, the question is never, is it bad to overrule period? Surely stare-
Justice Breyer: (28:27)
But I’m asking you to think, in their terms, there were two they mentioned, you see. And they don’t want Roe to be the third. And now, in your opinion, you just answered Justice Barrett or, Hey, all these are not rising to that level. Okay?
General Stewart: (28:44)
Right. Your Honor.
Justice Breyer: (28:44)
Are there any that do rise to the level, in your opinion?
General Stewart: (28:50)
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 a 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 values, Justice Breyer.
Justice Sotomayor: (29:09)
I’m not sure how your answer makes any sense. All of those other cases, Griswold, Lawrence, Obergefell, they all relied 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.
General Stewart: (29:30)
No, Your Honor. We’re quite comfortable with Washington versus Glucksberg and how it analyzes substantive due process, and it looks to text history and tradition, to discipline the inquiry, to make sure-
Justice Sotomayor: (29:42)
No, in Obergefell, there was no history of same sex marriage.
General Stewart: (29:46)
And I think the Court pointed out, look when we were facing Loving versus Virginia.
Justice Sotomayor: (29:51)
I’m not trying to argue that we should overturn those cases. I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.
General Stewart: (30:03)
Justice Sotomayor: (30:03)
… [inaudible 00:30:00] here wouldn’t have an effect on those.
General Stewart: (30:03)
Justice Sotomayor: (30:05)
Do you think that no state is going to think otherwise, that no people in the population aren’t going to challenge those cases in court?
General Stewart: (30:18)
I mean, Your Honor, we’ll always have a diversity of views, but I think-
Justice Sotomayor: (30:21)
That’s the point.
General Stewart: (30:22)
… I think that’s one of the benefits of our society.
Justice Sotomayor: (30:24)
Isn’t that the point?
General Stewart: (30:26)
That there’s a diversity of views and people can vigorously debate and make decisions themselves?
Justice Sotomayor: (30:29)
General Stewart: (30:30)
I think that’s a good thing, Your Honor.
Justice Sotomayor: (30:31)
And that’s what we’re still doing, and that’s what we’re doing under undue burden, but we haven’t been doing it on the viability line.
General Stewart: (30:37)
And neither one has worked well. The viability line discounts and disregards state interests, and the undue burdened standard has all of the problems that we emphasized.
Justice Sotomayor: (30:45)
How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?
General Stewart: (31:16)
Justice Sotomayor: (31:16)
Because it assumes that a fetus is life when? When do you suggest we begin that life?
General Stewart: (31:29)
Your honor, aside from-
Justice Sotomayor: (31:31)
Putting it aside from religion.
General Stewart: (31:34)
I think there might be more than one question and I’ll do my very best, Justice Sotomayor. I think this court in Gonzalez pretty clearly recognized that 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 debated, they’re important. Those are all reasons to return this to the people because the people should get to debate these hard issues. And this court does not in that kind of a circumstance.
Justice Sotomayor: (32:01)
So, when does the life of a woman and putting her at risk enter the calculus? Meaning right now, forcing women who are poor, and that’s 75% of the population, and much higher percentage of those women in Mississippi who elect abortions before viability, they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term than it is to have an abortion before viability. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what? That …
General Stewart: (33:10)
Sure, Your Honor. To answer, I think the question I think you led with, and then I think expanded on, but it’s still on the same issue is as to when does a woman’s interest enter, as far as we’re concerned, it’s there the entire time. 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 interests however they think best. We’re not saying-
Speaker 2: (33:32)
Are there secular philosophers and bio-ethicists who take the position that the rights of personhood begin at conception or at some point other than viability?
General Stewart: (33:48)
I believe so. I mean, I think there’s a wide array of people 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 were it otherwise, this court’s jurisprudence on this issue would run right into some of its religious exercise jurisprudence.
Justice Kagan: (34:08)
General, Justice Breyer started with stare 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 preventing people from thinking that the court will go back and forth depending on changes to the court’s membership. And what strikes me about this case, and you come here very honestly saying, “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’ve acknowledged again today, Casey says is the heart, the central principle of Roe. 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.
Justice Kagan: (35:26)
I guess what strikes me when I look at this case is that not much has changed since Roe and Casey, that people think it’s right or wrong based on the things that they have always thought it was right and wrong for. So the rationale behind those cases has something to do with the autonomy and the freedom and the dignity of women to pursue their lives as they wish, to protect their bodily integrity, to make the decisions that are most fundamental to the course of their lives. And always in those cases, there was an understanding that there were important interests on the other side, in protecting life or 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.
Justice Kagan: (36:26)
I mean, it strikes me that some people think those decisions made the right balance and some people thought they made the wrong balance, but in the end, we 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.
General Stewart: (37:09)
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 Roe and Casey’s favor. They have no basis in the constitution. They adopt a right that purposefully leads to the termination of now millions of human lives. If nothing had changed, they’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 in the abortion area, even means. The lower courts are left not knowing what to do. And I think a fundamental problem here is, I think as Justice Gorsuch mentioned emphasized in 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.
General Stewart: (38:07)
So judges unfortunately have to look within themselves, and that’s just never going to solve this issue. But if the matters return 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 damage. And at some point it’s appropriate for the court to say enough, as it has in some of the great overrulings, 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 all are equal. And similarly here, the states should be able to recognize, hey, there are real values on both sides here. We think that this one slightly outweighs, we think that this one slightly outweighs, or we think that 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.
Chief Justice Roberts: (38:57)
No, that’s all right. I have just a few little, well not little, I hope, questions. The first gets back to the issue of viability. 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 that when you got to the brief on the merits, you shifted gears and talked a lot more about whether or not Roe and Casey should be overruled. And I wanted to give you a chance to explain that.
General Stewart: (39:34)
Sure, Your honor. So a couple points. At the petition stage, we’d identified for the court three questions we emphasized, as you do at the cert stage. Hey, this is important. Only this court can resolve it. We emphasized, I believe it was five times, that the court was at the least going to need to reconsider, revisit or reevaluate 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 courts. It’s lost in every court of appeals. So, 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. It was the shift you go from cert stage to merit stage. The court granted one question. That question fairly includes what is the correct [crosstalk 00:40:31].
Chief Justice Roberts: (40:31)
Well, it fairly includes the broader arguments you raised. I’m not suggesting that. But on the other hand, it presumably included the viability question as well, because that’s what you talked about in that one sentence.
General Stewart: (40:43)
And we’ve addressed that as well, Your Honor. What I’d emphasize here is that the merits arguments of the validity of Roe and Casey as an original matter, is there a viability rule based in the Constitution? Those are not that complicated or lengthy. The harder questions are, should the court overrule and take that momentous step? And that’s why we devote a lot of space to that very important issue. We respect stare decisis and have walked through all those points. But again, focusing on the question presented and presenting our best arguments for that, that’s what we’ve done, Mr. Chief Justice.
Chief Justice Roberts: (41:16)
On stare decisis, I think the first issue you look at is whether or not the decision 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 in retrospect? Because Roe, I mean, there are a lot of cases is around the time of Roe, not of that magnitude, but the same type of analysis that went through exactly the sorts of things we today would say were erroneous. But do we look at it from today’s … If we look at it from today’s expective, it’s going to be a long list of cases that we’re going to say were wrongly decided.
General Stewart: (41:59)
Well, I’d say, Mr. Chief Justice that you can look both, was it wrong at the time, has it been unmasked as wrong by new understandings, new knowledge and any developments, but I don’t think, as I think my colloquia with Justice Barrett indicated, the court won’t have to be looking at many other areas, because this is an area that has a uniquely problematic set of stare 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 overruling Roe and Casey, the court won’t have to go down that road, and a lot of those decisions are quite readily groundable in history, tradition, and the court’s traditional factors, Your Honor.
Chief Justice Roberts: (42:43)
Thank you. Justice Thomas?
Justice Thomas: (42:44)
Chief Justice Roberts: (42:45)
Justice Breyer? Justice Sotomayor? Justice?
Justice Kagan: (42:53)
General, I just wanted to get your quick sense of how your intermediate positions would work. If basically the viability line was discarded and undue burden became the standard overall, a standard that according to you is an unclear one, what that would leave the court with going forward. I’m just thinking about the great variety of regulations that states could pass. So whether one is 15 weeks and one is 12 weeks and one is nine weeks or variation across 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?
General Stewart: (43:46)
Well, this is not to push back against the end and I will answer your question, Justice Kagan, but part of why we’ve counseled to overrule full scale is that that’s the only way to get rid of a number of the problems that I think Your Honor’s 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 court in 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 carrying forward those features. And I hope you’ve answered your question, but I think that’s one of the very strong reasons to just go all the way and overrule Roe and Casey, Your Honor. Anyway.
Chief Justice Roberts: (44:41)
Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: (44:42)
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?
General Stewart: (45:01)
Correct, Your Honor.
Justice Kavanaugh: (45:02)
And as I understand it, you’re arguing that the Constitution’s silent and therefore neutral on the question of abortion. In other words, that the Constitution’s neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate?
General Stewart: (45:21)
Right. We’re saying it’s left to the people, Your Honor.
Justice Kavanaugh: (45:24)
So if you were to prevail, the majority of states or states still could and presumably would continue to freely allow abortion, many states, some states would be able to do that, even if you prevail under your view. Is that correct?
General Stewart: (45:43)
That’s consistent with our view, Your Honor. It’s one that allows all interests to have full voice. 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.
Justice Kavanaugh: (45:56)
General Stewart: (45:57)
Thank you, Your Honor.
Chief Justice Roberts: (45:58)
Justice Barrett: (46:00)
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 stare decisis. I think a lot of the colloquia you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes, and of course no one can dispute because it’s part of our stare decisis doctrine that it’s not inexorable command and that there are some circumstances in which overruling is possible. We have Plessy v Brown, we have Bowers versus Hardwick to Lawrence, but in thinking about stare decisis, which is obviously the core of this case, how should we be thinking about it?
Justice Barrett: (46:37)
I mean, Justice Breyer pointed out that in Casey and in some respects, well, it was a different conception of stare decisis in so far as it very explicitly took into account public reaction. Is that a factor that you accept? Are you arguing that we should minimize that factor? And is there a different set of rules? It is true that Casey identified Brown and West Coast Hotel as watershed decisions, but is there a distinct set of stare decisis considerations applicable to what the court might decide as a watershed decision?
General Stewart: (47:12)
I don’t think there should be a distinct set of considerations there, Your Honor. I think what I emphasize, and just to make sure, on the 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 in conflict with this court’s structure and approach as an independent branch looking to the Constitution rather than looking without. 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 the day it was decided. We know it’s wrong today. And it’s led to all these terrible consequences. We should get rid of it.” So I think that that was an unfortunate break. And I think even if the court were to still look at legitimacy though, Justice Barrett, I think the court could very, very powerfully say, look, our 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 stare decisis factors to overrule when it’s appropriate.
General Stewart: (48:26)
Thank you, Your Honor.
Chief Justice Roberts: (48:26)
Thank you, counsel.
General Stewart: (48:27)
Thank you, Mr. Chief Justice.
Chief Justice Roberts: (48:38)
Miss Rickelman: (48:40)
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 the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will. The court should refuse to do so for at least three reasons. First, stare decisis presents an especially high bar here. In Casey, this court carefully examined and rejected every possible reason for overruling Roe, holding that a woman’s right to end a pregnancy before viability was a rule of law and a component of liberty that could not renounce. The question then is not whether Roe should be overturned, but whether Casey was egregiously wrong to adhere to Roe’s central holding.
Miss Rickelman: (49:33)
Second, Casey and Roe were correct. For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman’s right to make this decision until viability protects her liberty, while logically balancing the other interests at stake.
Miss Rickelman: (50:02)
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 or life change during the course of a pregnancy, poor women who are twice as likely to be delayed in accessing care, and young people 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.
Justice Thomas: (50:44)
Counsel, I just have one question. I assume from your brief, you’re relying on an autonomy theory.
Miss Rickelman: (50:55)
Both bodily integrity and the ability to make decisions related to family, marriage and childbearing, Your Honor.
Justice Thomas: (51:04)
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, and her case was post viability. So it doesn’t fit in the facts of this case. If she had ingested cocaine pre-viability and had the same negative consequences to her child, do you think the state had an interest in enforcing that law against her?
Miss Rickelman: (51:52)
The state may have, Your Honor. The state can certainly regulate to serve its interests in fetal life and in women’s health. Those particular laws tend to undermine both of those interests because they deter women from seeking prenatal care, which is counterproductive to both their health-
Justice Thomas: (52:09)
But the pre-viability as well as post viability.
Miss Rickelman: (52:12)
No, Your Honor. The court has been clear that after viability, states can prohibit abortion except to save-
Justice Thomas: (52:19)
No. I mean, in my example of criminal child neglect. I understand your argument is about abortion. I am trying to look at the issue of bodily autonomy and whether or not she has a right also to bodily autonomy in the case of ingesting an illegal substance and causing harm to a pre-viability fetus.
Miss Rickelman: (52:49)
Your Honor, of course those issues aren’t posed in this case. And again, I would say that the states can certainly regulate throughout pregnancy, both before and after viability, to preserve fetal life and to preserve the woman’s health. The court has said, however, there are other 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 states 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.
Justice Thomas: (53:38)
Chief Justice Roberts: (53:39)
The point you made about the impact on women and their place in society, those were certainly made in Roe as well. What we have before us, though, is a 15 week standard. Are you suggesting that the difference between 15 weeks and viability are going to have the same sort of impacts as you were talking about, or as we were talking about in Roe?
Miss Rickelman: (54:01)
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 are people who have perhaps had a major health or life change, a family illness, a job loss, a separation, young people or people who are on contraception or pregnant for the first time and who are delayed in 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-
Chief Justice Roberts: (54:50)
I’m sorry, what kind of data is that?
Miss Rickelman: (54:54)
I would refer the court to the brief of the economists in this case, Your Honor. 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 have-
Chief Justice Roberts: (55:18)
Well 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?
Miss Rickelman: (55:54)
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 bar 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. Mississippi 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 there are states that have bans-
Chief Justice Roberts: (56:31)
Well, I know, but I’d like to focus on the 15 week ban 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.
Miss Rickelman: (57:05)
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.
Chief Justice Roberts: (57:29)
What do you mean even if they have nominal lines earlier?
Miss Rickelman: (57:32)
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 reason, socioeconomic reasons. So their 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 substantially backwards, and 15 weeks is nine weeks before viability, Your Honor, it’s quite a bit backwards. It may need to reconsider the rules around regulations, because if it’s cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important.
Chief Justice Roberts: (58:11)
Justice Barrett: (58:13)
Miss Rickelman, I have a question about the safe haven loss. 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, seen in that light, both Roe and Casey emphasized the burdens of parenting. And in so far as you and many of your [a-mee-kee 00:58:39] focus on the ways in which the forced parenting, 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 an infringement on bodily autonomy, which we have another context like vaccines.
Justice Barrett: (59:07)
However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden. 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?
Miss Rickelman: (59:34)
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 place a child up for adoption has of course been true since Roe, so it’s a consideration that the court already had before it when it decided those cases and adhered 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-
Miss Rickelman: (01:00:03)
… 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 is to have a pre viability abortion. And those risks are disproportionately threatening the lives of women of color.
Justice Barrett: (01:00:28)
So are you saying … actually, as I read Roe and Casey, they don’t talk very much about adoption. It’s a passing reference that means out of the obligations of parenthood, but as I hear this answer, then are you that the right, as you conceive of it, is grounded primarily in the bearing of the child, in the caring of pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?
Miss Rickelman: (01:00:55)
No, your Honor. I believe it’s both, 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 to cases like Cruzan and Riggins versus Nevada. And the second was the strand of cases supporting decisional autonomy, and specifically decisions related to childbearing, marriage, and procreation decisions like Griswold, Loving. So it’s really both strands that we’re relying on here.
Justice Gorsuch: (01:01:25)
May I ask you a question about stare decisis, council? 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 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 too, in ways the court has found difficult to agree upon, inhaler stat, for example, that they point out in their 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, whether benefits could be considered or only burdens. 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 stare decisis analysis. And I just wanted to give you an opportunity to respond.
Miss Rickelman: (01:02:35)
Yes, your honor. The first point I’d like to make is the undue burden test is not at issue in this case. That is the test that applies to regulations, not prohibitions. And the state has conceded that this is a prohibition. 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 enduringly workable. The lower federal courts have applied it consistently and uniformly for 50 years. And the fifth circuit here below had no difficulty striking down this law unanimously 3:0. 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 the constitutional right merely because of the number of people in the category. And that’s just not how constitutional rights work. A state would never say that it could ban religious services on a Wednesday evening, for example, simply because most people could attend religious services on another night of the week.
Justice Gorsuch: (01:03:42)
So I actually just wanted to … that’s helpful, I think. I just want to make sure I understand what you’re telling me, counsel, that if the court were to, in this case, step past viability and apply the undue burden test to regulations of viability, you would agree with the other side. I think that that’s not a workable standard. Is that a fair understanding what you’re telling the court?
Miss Rickelman: (01:04:09)
No, your honor. I believe –
Justice Gorsuch: (01:04:10)
You think that would be workable?
Miss Rickelman: (01:04:12)
I believe that … if I may clarify, I believe the undue burden test has been workable for regulations that –
Justice Gorsuch: (01:04:17)
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?
Miss Rickelman: (01:04:35)
If the undue burden standard, as this court laid out in Casey, which includes the viability line –
Justice Gorsuch: (01:04:41)
I’m asking … we’re fighting the hypothetical here, counsel. Accept the hypothetical. If 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?
Miss Rickelman: (01:04:57)
Without viability, it would not be workable, your honor, because it would ultimately, again, always come down to a claim that states can bar a certain category of people from exercising this right simply because of the number of people in the category. And that’s not a workable standard and it’s not a constitutional standard.
Justice Gorsuch: (01:05:14)
I appreciate that clarification. Thank you.
Justice Alito: (01:05:18)
Just to follow up on that, I read your brief to say that the only real options we have are to reaffirm Roe and Casey as they stand, or to overrule them in their entirety. You say that “there are no half measures here”. Is that a correct understanding of your brief?
Miss Rickelman: (01:05:42)
Your honor, it’s certainly … the arguments that the state has presented is what we’re responding to there, which is that all of the state’s arguments, including their alternatives, which are undue burden without viability, would be the equivalent of overruling Casey and Roe, because the viability line is the central holding of those cases. Casey mentioned it no fewer than 19 times. And the court in June Medical just a year ago affirmed that the viability line is the central holding of both Casey and Roe.
Justice Alito: (01:06:11)
Well, you do emphasize that the court drew the line at viability in Roe and reaffirm that in Casey. 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 are pro-choice and pro-life that the line really doesn’t make any sense, that it is as Justice Blackman himself described it, arbitrary. If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed, isn’t that right?
Miss Rickelman: (01:07:08)
No, your honor. And if I may make a few points to answer your question. First, I think the state views viability as arbitrary because it completely discounts the women’s interest, but viability –
Justice Alito: (01:07:18)
But does a woman have … 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?
Miss Rickelman: (01:07:32)
Viability is a principled line, your honor, because in ordering the –
Justice Alito: (01:07:36)
I’m trying to see whether it is a principled line. You agree with me at least on that point, that a woman still has the same interest in terminating her pregnancy after the viability line has been crossed.
Miss Rickelman: (01:07:49)
Yes, your honor, but the court balanced the interest, and in ordering the interest at stake –
Justice Alito: (01:07:53)
Well look at this 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?
Miss Rickelman: (01:08:07)
In some people’s view, it doesn’t, your honor, but what the court said is that those philosophical differences couldn’t be resolved in a way –
Justice Alito: (01:08:13)
But 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 acquires certain independent characteristics, but viability is dependent on medical technology and medical practice. It has changed. It may continue to change.
Miss Rickelman: (01:08:44)
No, your honor, it is principled, because in ordering the interest at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’s 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.
Chief Justice Roberts: (01:09:04)
I just want to focus on stare decisis for a little bit. I found my colleague Justice Breyer’s comments quite compelling. I’m not quite sure how they play out in Casey. It is certainly true that we cannot base our decisions on whether they’re popular or not with the people. Casey seemed to say we shouldn’t base our decisions not only on that, but whether they’re going to seem popular. And it seemed to me to have a paradoxical conclusion, that the more unpopular the decisions are, the firmer the court should be in not departing from prior precedent. It’s sort of a superstar decisis, but it’s superstar decisis for what are regarded, by many, as the most erroneous decisions. Do you think there is that category, or is it just normal stare decisis?
Miss Rickelman: (01:10:04)
I think it is precedent on precedent, your honor, because Casey did the stare decisis analysis for Roe. So the question before this court is whether that stare 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. At pages 869-871, the court squarely addressed viability because the government had made the argument that viability –
Chief Justice Roberts: (01:10:28)
No, I appreciate that Casey addressed it, but that’s different than saying it was at issue. It said it was the central principle of Roe, because it was pretty much all that was left after they were done dealing with the rest of it. And the regulations in Casey had no applicability or not, depending 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 Blackman said when discussing among his colleagues, which is a good reason not to have papers out that early, is that they don’t have to address the line drawing at all in Roe. And they didn’t have to address the line drawing at all in Casey.
Miss Rickelman: (01:11:16)
I disagree with that, your honor, because the undue burden test incorporates the viability line. That was what the court was assessing the regulations against, whether they imposed a substantial obstacle in the path of a woman before viability. And if a prohibition, like this law, isn’t a substantial obstacle, then nothing would be. So the issue was squarely before the court. And in fact, the court said at page 879 that in adopting the under burden test, it was not disturbing the viability line.
Justice Breyer: (01:11:45)
It’s a very interesting question that I think that Justice Barrett raised too. It’s usually just philosophical, but I think it has bite here. When I read Casey, it’s not just one on one. Two is greater than one. Casey plus Roe is greater than … they’re making a point that we’re an institution perhaps more than a court of appeals or a district court, to 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 you’re 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 rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they’re going to be ready to say, “No, you’re just political. You’re just politicians.”
Justice Breyer: (01:13:20)
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 stare considerations, stare decisis overrulings are really there in spades, double, triple, quadruple, and then they go through and show they’re not. 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 … when that occurred to you. I don’t want to overrule the stare. I wouldn’t want the court to overrule the stare decisis section of Casey. And that’s what I think is being brought up. And maybe I haven’t made it clearer, but I’ve tried to.
Miss Rickelman: (01:14:28)
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 court’s precedent has never been enough of a reason to overrule. And that’s true for a number of decisions that the court has issued. The fact that some people continue to disagree with them is not a basis to discard that precedent.
Speaker 3: (01:14:48)
Justice Thomas, anything further?
Justice Thomas: (01:14:51)
Back to my original question. I know your interest here is in abortion. I understand that. But if I were to ask you what constitutional right, per text the right to abortion, is it privacy? Is it autonomy? What would it be?
Miss Rickelman: (01:15:18)
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 family decisions and the right to physical autonomy, including the right to end a pre viability pregnancy.
Justice Thomas: (01:15:36)
So it’s all of the above.
Miss Rickelman: (01:15:39)
Well, that’s how the court has interpreted the liberty clause for over a hundred years in cases going back to Meyer Griswold, Carrie, Loving, Lawrence.
Justice Thomas: (01:15:48)
Yeah, but I mean all of those sort of just come out of Lochner, so we’ve dropped part of it. So I understand what you’re saying, but what I’m trying to focus on is to lower the level of generality, or at least be a little bit more specific. 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, or in substantive 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?
Miss Rickelman: (01:16:27)
I think it continues to be liberty and the right exists, whatever level of generality that 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.
Justice Thomas: (01:16:51)
Speaker 3: (01:16:53)
Justice Meyer? Justice [inaudible 01:16:55]?
Justice Alito: (01:16:55)
Well, 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 14th amendment was adopted?
Miss Rickelman: (01:17:14)
No, your honor, but it had been allowed under the common law for many years.
Justice Alito: (01:17:18)
Does any judicial decision at that time, or shortly or immediately after 1868, recognize that abortion was a right, liberty, or immunity?
Miss Rickelman: (01:17:30)
There were state high court decisions shortly before then, your honor, talking about the ability of women to end a pregnancy before quickening.
Justice Alito: (01:17:38)
What’s your best case?
Miss Rickelman: (01:17:41)
For the right to end a pregnancy, your honor?
Justice Alito: (01:17:43)
Miss Rickelman: (01:17:45)
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 a line that logically balances the interests at stake.
Justice Alito: (01:18:09)
The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the 14th amendment was adopted. Is that correct?
Miss Rickelman: (01:18:25)
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, a view that the constitution now rejects. And that’s why it’s appropriate to do the historical analysis at a higher level of generality.
Justice Alito: (01:18:40)
Right. In the face of that, can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?
Miss Rickelman: (01:18:48)
Yes, it can, your honor. Again, the founding women were able to end their pregnancy under the common law. And in fact, this court in Glucksberg specifically discussed Casey as a decision based on history and tradition. And at note 19, specifically called out and relied on Roe’s conclusion that at the time of the founding and well into the 1800s, women had the ability to end a pregnancy.
Justice Alito: (01:19:11)
What was the principle source that the court relied on in Roe for its historical analysis? Who was the author of that article?
Miss Rickelman: (01:19:21)
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 Roe’s legal conclusions.
Justice Alito: (01:19:46)
All right. Thank you.
Speaker 3: (01:19:47)
Justice [inaudible 01:19:47]? Justice [inaudible 01:19:47]?
Justice Kavanaugh: (01:19:47)
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 in 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 nor pro-life.
Justice Kavanaugh: (01:20:43)
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.
Miss Rickelman: (01:21:13)
Yes, a few points, if I may, your honor. First, of course, those very same arguments were made in Casey 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 take control of women’s bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the constitution.
Justice Kavanaugh: (01:21:54)
And I want to ask a question about stare decisis, and to think about how to approach that here because there have been lots of questions picking up on Justice Barrett’s questions and others. And history helps think about stare decisis, as I’ve looked at it and the history of how the courts applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If 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 has overruled precedent, 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 about the right to remain silent and to have an attorney present to suspects in criminal custody.
Justice Kavanaugh: (01:22:58)
Lawrence V. Texas, which said that the state may not prohibit same sex conduct. Map versus Ohio, which held that the exclusionary rule applies to state criminal pro to exclude evidence obtained in violation of the fourth amendment. Gideon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, 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 court’s history, the court overruled precedent. And it turns out if the court in those cases had listened and they were presented with arguments in those cases, adhere to precedent in Brown V. Board, adhere to Plessy on West Coast Hotel, adhere to Atkins and adhere to Lochner.
Justice Kavanaugh: (01:23:55)
And if the court had done that in those cases, the country would be a much different place. So I assume you agree with most, if not all the cases I listed there, where the court overruled precedent. So the question on stare decisis is why if … and I know you disagree with what I’m about to say on the if … if we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn’t?
Miss Rickelman: (01:24:45)
Because 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 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 in its stare decisis analysis in 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.
Justice Kavanaugh: (01:25:23)
Speaker 3: (01:25:25)
Justice Barrett: (01:25:27)
I want to ask you a follow up question. The chief was asking you 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 to due process clause. And a state Supreme Court has to decide, as a matter of state constitutional law, what the scope of an abortion right is. And the second trimester ends at 27 weeks. So that state Supreme Court says, “We think that the right exists … in an absolute sense, 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?
Miss Rickelman: (01:26:17)
Your honor, it may be, but I think that the question in this case is whether a line is obviously more principled or obviously more workable than viability because of the stare decisis context.
Justice Barrett: (01:26:28)
I mean, that’s the Roe 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.
Miss Rickelman: (01:26:43)
I’m not trying to suggest it as, your honor. What I was trying to suggest is that the viability line is a principled and workable line. So to change it, there would have to be a new line that’s obviously more principled and more workable. And the line that the court has drawn actually –
Justice Barrett: (01:26:56)
But that’s stare decisis. I’m asking as a matter of first principles.
Miss Rickelman: (01:26:59)
As a matter of first principle, the viability line may make sense because if the state constitution –
Justice Barrett: (01:27:04)
As a matter of credential 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, end of the second trimester.
Miss Rickelman: (01:27:15)
You could, your honor, but the viability line makes sense, given the protection for liberty, because it comes from the women’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 contexts, like the fourth and fifth amendment. And the viability line, as I mentioned, makes sense because it focuses on the fetus’s 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.
Speaker 3: (01:27:48)
Thank you, counsel. General Prelager?
Miss Rickelman: (01:28:05)
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. 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.
Miss Rickelman: (01:28:43)
Women who are unable to will hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health, and the course of their lives. If this court renounces the liberty interest recognized in Roe and reaffirmed and Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare 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 this central component of women’s liberty.
Justice Thomas: (01:29:26)
General, would you specifically tell me, specifically state what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?
Miss Rickelman: (01:29:44)
The right is grounded in the liberty component of the 14th amendment, Justice Thomas, but I think that it promotes interests in autonomy, bodily integrity, liberty, and equality. And I do 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 –
Miss Rickelman: (01:30:03)
… Forcing her to continue a pregnancy, whether to carry that baby to term.
Justice Thomas: (01:30:05)
I understand we’re talking about abortion here, but what is confusing is that if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the 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?
Miss Rickelman: (01:30:30)
Well, Justice Thomas, I think that the Court in those other contexts 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 Roe and Casey and the way that it implemented that right, by defining the scope of the liberty interest by reference to viability and providing that is the moment when the balance of interest tips, and when the state can act to prohibit a woman from getting an abortion based on its interest in protecting the fetal life at that point.
Justice Thomas: (01:31:10)
So the right specifically is abortion?
Miss Rickelman: (01:31:13)
It’s the right of a woman prior to viability to control whether to continue with a pregnancy. Yes.
Justice Thomas: (01:31:18)
Justice Sotomayor: (01:31:20)
General, I am interested in Justice Kavanaugh’s long litany of cases in which we’ve overruled precedent. And we have. Yet you did call this unprecedented. As I see the structure of the Constitution, the body of it is the relationship of the three branches of government. And then there is the relationship of the federal government to the state, and through our incorporation of the 14th Amendment of the state vis-a-vis the individual. It’s the federal government and the states relationship to individuals. And I see the Bill of Rights, including the 14th Amendment, as basically setting the limits, giving individual freedom to do certain things and stopping the government from intruding in those liberties, in those Bill of Rights, correct? Of all of the decisions that Justice Kavanaugh listed, all of them 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?
Miss Rickelman: (01:32:58)
That’s right, Justice Sotomayor. And I think that is a key distinction with the list of precedents that 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. I think that matters because it goes straight to reliance interests.
Miss Rickelman: (01:33:20)
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 they can make about whether to bring a child into this world is not part of their protected liberty. And I think that would come at tremendous cost to the reliance that women have placed on this right and on societal reliance on what this right has meant for further ensuring equality.
Justice Breyer: (01:33:42)
Reliance is a good point. And this may be my fault. I’m talking about pages 854 to 863 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 Kavanaugh had. They do include two. One is Brown. And the second one is West Coast Hotel v. 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.
Justice Breyer: (01:34:28)
So all I would say is you have to read them before beginning to say whether they’re overruling or not overruling in the sense meant there, calling for special concern. They say in those, maybe I’d mentioned two… Wait a minute. Of course Plessy was wrong when decided, but just a minute.
Justice Breyer: (01:34:50)
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. They said, are you going to sit here in the middle of the depression and tell me that Lochner with the other cases and just about a pure laissez fair, that we can run the country that way. I mentioned that because I’d want people to read those 15 pages with care. And that’s why I said that. If you add anything to add to my plea, to read it, please do.
Miss Rickelman: (01:35:39)
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 distinction 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 stare decisis factor that this court focuses on, it looked at workability of the viability rule, doctrinal underpinnings, legal and factual developments and, critically, reliance interests.
Miss Rickelman: (01:36:03)
And down the line, it found that the case for reaffirming Roe was overwhelming. And in that situation, when every factor that the Court consults to determine whether to retain precedent counsels in favor of retaining it, I think Casey properly perceived that a decision to overrule, nevertheless, perhaps based on the conclusion that the Justices thought the case was wrongly decided in the first instance would run counter to the ability of stare decisis to function as a cornerstone of the rule of law in this context.
Justice Alito: (01:36:31)
Is it your argument that a case can never be overruled simply because it was egregiously wrong?
Miss Rickelman: (01:36:38)
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 materially new argument and Mississippi hasn’t done so in this-
Justice Alito: (01:36:48)
Really, so suppose Plessy versus Ferguson was re-argued in 1897. So nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled.
Miss Rickelman: (01:37:04)
It certainly was egregiously wrong on the day that it was handed down, Plessy. But what the Court said in analyzing Plessy to Brown in Casey, was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn’t create a badge of inferiority had been entirely mistaken. And here the state is not-
Justice Alito: (01:37:23)
Is it your answer that we needed all the experience from 1896 to 1954, to realize that Plessy was wrongly decided? Which answer my question, had it come before the Court in 1897, should it have been overruled or not?
Miss Rickelman: (01:37:40)
I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided. And the Court realized that and clarified that when it overruled it in Brown and here-
Justice Alito: (01:37:49)
So there are circumstances in which a decision may be overruled properly overruled. When it must be overruled, simply because it was egregiously wrong at the moment it was to decided. Correct? Is that correct?
Miss Rickelman: (01:38:00)
Well, I think every other stare decisis factor likewise, would’ve 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 become an outlier in our understanding of fundamental freedoms. [crosstalk 01:38:14].
Justice Alito: (01:38:15)
Well, there was a lot of reliance on Plessy. The south built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means. But your answer is, I still don’t understand. I still don’t have your answer clearly. Can a decision be overruled simply because it was erroneously wrong. Even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled. Yes or no. Can you give me a yes or no answer on that.
Miss Rickelman: (01:38:55)
This court, no, has never overruled in that situation, just based on a conclusion that the decision was wrong, it has always applied the stare decisis factors and likewise found that they warrant overruling in that instance. And Casey did that. It applied the stare decisis factors. If stare decisis is to mean anything. It has to mean that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent itself is an additional layer of precedent that needs to be relied on and can form a stable foundation of the rule of law.
Justice Kagan: (01:39:26)
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 sometimes when talk about reliance interest, it’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 it has a very kind of grounded quality to it. And as Casey talked about the reliance interests here, they’re a little bit more airy. And I just wanted to get your sense of what are the reliance interests here and how do they cash out on the ground?
Miss Rickelman: (01:39:59)
Well there are multiple reliance interests here, as I think Casey correctly recognized Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision, 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.
Miss Rickelman: (01:40:27)
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 right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives.
Miss Rickelman: (01:40:46)
And then I think there’s a second dimension to it that 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 v. 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 now, I think would run counter to that societal reliance. And the very concept we have of what equality is guaranteed to women in this country.
Justice Sotomayor: (01:41:26)
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 contraceptive contrary to your adversary’s brief. In fact, 19% of the women in Mississippi are uninsured. So they don’t have money to pay for contraceptives. But their point in their brief was contraceptives, if you use them, the failure rate is very small, et cetera, et cetera, how can there be real reliance? So could you address that issue?
Miss Rickelman: (01:42:19)
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 10 will experience an unplanned pregnancy in the first year of use alone. About half the women who have unplanned pregnancies were on contraceptive the month that that occurred. And so I think the idea that contraceptives could make the need for abortion dissipate is just contrary to the factual reality.
Justice Sotomayor: (01:43:03)
You also mentioned, or maybe it was your co-counsel that life changes for women after 15 weeks.
Miss Rickelman: (01:43:14)
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 issue 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.
Miss Rickelman: (01:43:40)
They don’t realize that they’re pregnant, that’s especially true of women who are young or haven’t 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 interests in forcing them to continue with that pregnancy.
Justice Sotomayor: (01:44:21)
Chief Justice Roberts: (01:44:26)
General, following up on that. Would that argument be true in terms of viability as well. In other words, your discussion of the reliance interests and the ability of women and men to control their lives in reliance on the right to an abortion. The argument would not be as strong, I think you’ll have to concede given what we’re talking about, which is not a prohibition. It’s a 15 week line, is that right? You have to hypothesize people who have planned their lives according to a 24, whatever week limit it is, but not a 15 week limit on abortion.
Miss Rickelman: (01:45:17)
Well, I don’t think the Court has ever analyzed reliance with that kind of person. I think here, the force of the viability line is that it’s clearly demarcated to the scope of a woman’s protected Liberty interest in this context. And the state is not actually at scheme 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 bans, eight week bans, 10 week bans, and so on, would seek to enforce those with no continued guidance of what the scope of the Liberty interest is going forward.
Chief Justice Roberts: (01:45:51)
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.
Miss Rickelman: (01:46:18)
Well, I think as Casey emphasized in 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 meaningful life-
Chief Justice Roberts: (01:46:30)
That’s what John Hart Ely explained complete synergism. That’s the definition of viability. It’s not a reason that viability is a good line.
Miss Rickelman: (01:46:38)
Well, it’s focused on the idea of fetal separateness. And I think that is a line that also accords with the history and tradition in this country of abortion regulation, contrary to the state’s arguments here, at the time of the founding and for most of early American history women had an ability to access abortion in the early stages of pregnancy. And it was only when the fetus was deemed sufficiently separate the states could act to bar that. So I think that the viability line also aligns with history and tradition in that respect.
Chief Justice Roberts: (01:47:07)
Justice Thomas: (01:47:10)
You heard my question to counsel earlier about the woman who was convicted of criminal child neglect. What would be your reaction to that as far as her Liberty, and whether or not the Liberty interest that we’re talking about extends to her?
Miss Rickelman: (01:47:33)
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 Roe recognize the states have interests that exist from the outset of pregnancy.
Miss Rickelman: (01:47:56)
But with respect to this specific right to abortion, there are also profound liberty interests of the woman on the other side of the scale and not being forced to continue with a pregnancy, not being forced to endure childbirth and to have a child out in the world. And the state’s argument here seem to ask this court to look only at its interests and to ignore entirely those incredibly weighty interests of the woman on the other side.
Justice Thomas: (01:48:18)
Chief Justice Roberts: (01:48:23)
Justice Breyer. [inaudible 01:48:23]. No? Justice Gorsuch, any further?
Justice Gorsuch: (01:48:27)
I just want to make sure I understand your response to the chief Justice. If this court would reject the viability line, do you see any other intelligible principle that the Court could choose?
Miss Rickelman: (01:48:41)
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 profound liberty interest at stake here and-
Justice Gorsuch: (01:48:51)
I’m sorry for interrupting, but that wasn’t my question. I understand that point fully, by the end of this argument, that is deeply clear to me. I understand your position. I’m just asking a question about whether you think there would be another alternative line that the government would propose. Or not, and you emphasize that it’s 15 weeks were approved, then we’d have cases about 12 and 10 and 8 and 6. And so my question is there a line in there that the government believes would be principled or not?
Miss Rickelman: (01:49:24)
I don’t think there’s any line that could be more principled than viability. I think the factors the Court would have to think about are what is most consistent with precedent, what would be clear and workable and what would preserve the essential components of the liberty interest and viability checks all of those boxes and has the advantage as well as being a rule of law for 50 years.
Justice Gorsuch: (01:49:44)
Thank you. That’s helpful counsel, appreciate it.
Chief Justice Roberts: (01:49:46)
Justice Kavanaugh: (01:49:49)
You make a very forceful argument and identify critically important interests that are at stake in this issue. No doubt about that. The other side says though, that there are two interests at stake. That there’s also the interest in fetal life at stake as well. And in your brief, you say that the existing framework accommodates, that’s your word, both the interest of the pregnant woman and the interest of the fetus.
Justice Kavanaugh: (01:50:21)
And the problem, I think the other side would say, and the reason this issue’s 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?
Justice Kavanaugh: (01:50:53)
And I just want to get your reaction to what the other side’s theme is. And I’ve mentioned it in my prior questions. When you have those two interests at stake, and both are important, as you acknowledge, why should this court be the arbiter rather than Congress, the state legislatures, state Supreme courts, the people being able to resolve this. And there’ll be different answers in Mississippi and New York, different answers in Alabama than California, because there are two different interests at stake. And the people in those states might value those interests somewhat differently. Why is that not the right answer?
Miss Rickelman: (01:51:40)
Justice Kavanaugh, it’s not the right answer because the Court correctly recognized that this is a fundamental right of women. And the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not. And it’s true different rules would prevail throughout the country if this court were to overrule 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 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.
Justice Kavanaugh: (01:52:26)
Chief Justice Roberts: (01:52:26)
Justice Barrett: (01:52:28)
I have a follow up to Justice Kagan’s question about reliance. I’m just trying to nail down, and I asked Ms. Rikelman this question too, but I’m not sure that I fully understand the government’s position or Ms. Rikelman’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.
Justice Barrett: (01:52:53)
And I mentioned the safe haven laws to Ms. Rikelman. And I fully understand the reliance interest there, the airy ones Justice Kagan was referring to. And then there are the more… Excuse me, specific ones about a woman’s access to abortion as a backup form of birth control in the event that contraception fails so that she need not bear the burdens of pregnancy. But what do you have to say to petitioner’s argument that those reliance interests do not include the reliance interests of parenting and bringing a child into the world when maybe that’s not the best thing for her family or her career?
Miss Rickelman: (01:53:29)
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 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, or at least nothing new about the availability of adoption as an alternative. Roe and Casey already took account of that fact. And I think that there are certainly, of course, all of the bodily integrity interests that we’ve referred to, but also the autonomy interests retain in force as well.
Justice Barrett: (01:54:05)
So it’s the reliance interests and the right to be able to choose to terminate the pregnancy rather than having to terminate the parental rights.
Miss Rickelman: (01:54:14)
I think 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 about what is best for the course of their lives. Thank you general.
Chief Justice Roberts: (01:54:30)
Thank you, general. Rebuttal, general Stewart.
General Stewart: (01:54:37)
Thank you, Mr. Chief Justice. I’d like to do my best to make three points. First picking up where you just left off, Justice Barrett on safe haven laws. The respondents in this case, 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, they’re now ubiquitous.
General Stewart: (01:55:01)
And your correct Justice Barrett that they relieve that huge burden. I would also add that as to burdens during pregnancy, I would emphasize that contraception is more accessible and affordable and available than it was at the time of Roe or Casey. It serves the same goal of allowing women to decide if when and how many children to have. And I would also note, just frankly, the lowest cost abortion at Jackson Women’s health is $600 for the abortion, additional costs and further fees.
General Stewart: (01:55:34)
According to my friends, the respondents, and their amici, there are also additional costs related to travel, taking time off of work accommodations, all of those sorts of things. Whether somebody’s uninsured or not, the costs of contraception are consistently significantly less than those.
General Stewart: (01:55:50)
Number two. I think, Justice Kavanaugh, you had it exactly right, when you used 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 has evaded the Court and will continue to evade this court under Roe and Casey. But that is exactly right. This is a hard issue. It involves… And I would emphasize your honor, that as you said, there are interests here on both sides. There are interests for everyone involved. This is unique for the woman. It’s unique for the unborn child, too, whose life is at stake in all of these decisions.
General Stewart: (01:56:20)
It’s unique for us as a society and how we decide if the states get to legislate on this issue, how to decide and how of these tremendously momentous issues. In closing, I would say that in his dissent, 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.
General Stewart: (01:56:44)
It took 58 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 Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives, unless, and until this court overrules it. We ask the Court to do so in this case and uphold the state’s law. Thank you, your honor.
Chief Justice Roberts: (01:57:09)
Thank you, General. Counsel the case is submitted.
Speaker 4: (01:57:14)
The honorable court is now adjourned until Monday next at 10:00.