Thread by @ZoeTillman

At 10am, the Supreme Court will hear arguments in the most consequential reproductive rights case in arguably decades.

Here's @skbaer with a comprehensive overview of what's being argued and what's at stake: buzzfeednews.com/article/skbaer…

There's no video, but anyone can listen along live.

The court will be streaming audio (look for the green "LIVE" button): supremecourt.gov

CSPAN has it, and they do a good job ID'ing who is speaking at a given time: c-span.org/video/?516168-…

Worth revisiting the Mississippi case that got us here. The 2018 opinion from Judge Carlton Reeves blocking the 15-week abortion ban included a prescient critique that the state was picking a fight it knew it would lose to get Roe back to SCOTUS:
buzzfeednews.com/article/zoetil…

Not going to fully live-tweet this hearing, but will share highlights as things unfold.

MS AG Scott Stewart begins with an appeal to the justices to think of the court's public perception, saying abortion has kept SCOTUS at the "center of a political battle it can never resolve"

Breyer delivers a monologue quoting from sections of Casey about how the bar should be extremely high for overturning a case like Roe, that the court should have to show that such a decision is rooted in principle and not social/political pressure. "What do you say to that?"

Stewart talks about how Casey (establishing the viability line) didn't end up having a "calming" effect, unlike other controversial decisions. Sotomayor jumps in to note that the viability line hasn't been at issue in those 30 years

Sotomayor: "The right of a woman to choose, the right to control her own body, has been clearly set forth since Casey and never challenged. You want us to reject that line of viability and adopt something different."

Sotomayor pushes Stewart to explain what's changed in 30 yrs that warrants revisiting viability. Stewart brings up advancements in science/medicine, re: fetal pain, and Sotomayor knocks that down, saying it reflects a minority view that wouldn't survive a trial standard (Daubert)

Stewart backs away from that a bit, saying really the fundamental problem with viability is it's not tethered to anything in history, the Constitution. Sotomayor isn't into this line of argument either: "There's so much that's not in the Constitution."

Kagan picks up the thread from Sotomayor and Breyer to emphasize that nothing meaningful has changed since Roe and Casey that would warrant revisiting the legal principles, but what's different now is that everyone has relied on this case law for decades

The theme from Breyer/Sotomayor/Kagan is that any decision to reverse or roll back Roe and Casey and blow up the viability line would be rooted in political, social, and religious reasons, and that's not how the court is supposed to work and will only hurt public perception

Kavanaugh asks a line of quick Qs having Stewart make clear they're not arguing SCOTUS has the authority to ban abortion, and that reversing Roe would mean some states could still allow abortion. Stewart says that's right, it would be up to the states and the people to decide

The Kavanaugh questions seem aimed at preemptively addressing the public outcry that will come if the court gives the green light to states that already have made clear they will immediately adopt abortion bans and are just waiting on the court to act

Roberts signals that he's open to keeping some kind of line and not reversing Roe outright, but making it earlier than viability — why isn't 15 weeks reasonable, he asks Julie Rikelman, counsel for the MS clinic

Rikelman says going from 24 weeks to 15 weeks is a huge difference. Roberts tried to draw int'l comparisons, Rikelman notes there are much higher barriers to abortion in the US, so if the court wants to push back the line, it makes abortion far less accessible in many ways

Alito asks a string of questions aimed at probing whether the viability line is arbitrary, and talks about need to balance a fetus's "interest in having a life." Rikelman says viability establishes a legally objective standard that stays away from more philosophical questions

Roberts probes idea that Roe is "super" precedent and whether that concept creates an odd situation where the court feels compelled to uphold its most unpopular decisions. Rikelman says it's precedent on precedent - that is, incorporated in decades of subsequent case law

Kavanaugh goes back to thread about how the anti-abortion movement is arguing the Constitution is "neutral" on abortion so SCOTUS should be too. Rikelman responds the Constitution is not neutral on the right to liberty, and what states want is to "take control" of women's bodies

Alito, invoking Plessy v. Ferguson, asks a series of questions of SG Elizabeth Prelogar about when the court can reverse precedent solely because it was just "egregiously wrong," even if nothing else has changed in the interim

Prelogar notes that when SCOTUS reversed Plessy, it addressed the realization that the factual predicate underlying Plessy — the idea that "separate by equal" wouldn't somehow create a badge of inferiority — was wrong

Roberts back to asking why pushing back the viability line isn't okay, and whether the reliance interests Prelogar is talking about still apply if it's not a total prohibition on abortion. He says he doesn't see what viability has to do with the question of choice.

Prelogar says there was a logical/biological justification for viability as the line, Roberts says she's just giving a definition of viability and not explaining why it's a good standard. Prelogar says it goes to question of fetal separateness, and has historical roots