Thread by @stevenmazie

Abortion hearing at SCOTUS starting now. 👇

Lawyer for Mississippi rises:

Roe and Casey "haunt our country".

Thomas has the first question for Scott Stewart, solicitor general of Mississippi: does it make a difference if we focus on privacy or autonomy or more specifically on abortion?

Stewart: right to abortion not grounded in constitutional text no matter what concept you turn to

Thomas: what standard should we use (other than viability) if we don't overrule Roe?

Stewart: undue burden untethered from viability rule

Breyer, extremely meandering wow, brings up stare decisis and the analysis in Casey. 1992 court said it should be *more* unwilling to overrule Roe than a non-watershed decision since "it would subvert the Court's legitimacy"

Breyer has been asking a question for about three hours at this point

Stewart: we've looked at Casey carefully and the undue burden standard is unworkable.

Note: Stewart said three minutes ago he would like the Court to retain the undue burden standard if it doesn't abandon Roe/Casey. 😕

Sotomayor: viability has not been at issue over the past 30 years. "The right of a woman to control her own body has not been challenged....15 justices over 30 years have reaffirmed that basic viability line. 4 have said no, 2 of them members of this Court."

🔥Sotomayor: Will the Court survive "the stench that this creates in the public perception that the Constitution and its reading are just political acts?"

Sotomayor laying it out there: If we overrule Roe, "how will we survive? How will the Court survive?"

Stewart: Casey has "the most unworkable standard in American law (undue burden)" and ignores "advancement in medicine" - knowledge of fetal pain, etc.

CJ Roberts jumps in: was viability an issue in Roe? It wasn't briefed or argued, right?

Stewart: no...

Roberts: Justice Blackmun said in papers that viability was dicta (not officially part of the ruling)

Roberts: was viability at issue in Casey?

Stewart, pausing: I don't think so...

SUPER IMPORTANT
Roberts signals his hunch about how to resolve the case: viability may not be essential to Roe or Casey, so erasing it may not mean overruling Roe or Casey.

Sotomayor: "there's so much that's not in the Constitution", including judicial review, the idea that the Court has the last word on what the Constitution means! Marbury v. Madison - was totally novel at the time (1803).

Sotomayor: many things have been discerned from the structure of the Constitution. Why are Roe and Casey so unusual that they need to be overturned?

Stewart: Roe/Casey are not discerned from the structure of the Constitution.

Stewart: looking to history/tradition is how to do it, and Roe/Casey ignore both. And need for clear lines.

Justice Barrett enters the chat.

Do cases like Obergefell and Griswold fall in same bucket as Roe/Casey?

Stewart: no, none involve termination of a human life

[Note that some friend of the court briefs disagree w that conclusion: they call into question the legitimacy of same-sex marriage rights and the right to contraception and the right to sexual intimacy along with Roe/Casey.]

Sotomayor: "I'm not sure how your answer makes any sense."

All those other cases rely on substantive due process. As does Roe/Casey.

Stewart: we're comfortable with all those other decisions.

Sotomayor: "How is your interest [in abolishing the right to abortion] anything but a religious view?"

Sotomayor's time of possession so far is rather impressive.

Stewart: let the people debate these issues.

Sotomayor brings up poor women and their struggle to pay for the exercise of their reproductive rights. Abolishing Roe will impinge on their lives all the more, right?

Alito softball: aren't there secular philosophers who think life begins at conception, or at least before viability?

Stewart: sure enough sir

🔥🔥Justice Kagan's first question has this preface: we want "to prevent people from thinking this is a political institution that goes back and forth depending on changes to the Court's membership"

Kagan: rationale behind those cases has to do with autonomy & bodily integrity of women and there was a balance to be made w respect for fetal life..."we are in the same exact place as we were then...except we're not because this is part of the fabric of women's existence."

Stewart: "we have decades of damage" that need to be repaired. Lower court judges have no neutral rule of law and have to look within themselves. Return the question to the people.

Roberts back to viability: that was the only question on which we granted review and then "you kind of shifted gears" in asking for us to overrule Roe. Why?

Stewart: we presented every argument once cert was granted. It was a shift, yes, but....

Roberts: so where's the discussion of viability that you promised?

AGAIN, VERY IMPORTANT THAT ROBERTS SEEMS TO WANT TO RULE ON VIABILITY, NOT ON WHETHER ROE/CASEY SHOULD BE OVERRULED.

Roberts: isn't it a long line of cases we'll need to think about overruling if we ditch Roe and Casey?

Stewart: not really no...."Court won't have to go down that road."

Kagan: how would it work if we ruled on undue burden, which "according to you is an unclear" standard? What would that look like?

Stewart: the only way to get rid of all the problems is to overrule Roe/Casey.

HE DID NOT ANSWER THE QUESTION.

Kavanaugh's first question: this court doesn't have the authority to prohibit abortion, right? The constitution is neither pro-life nor pro-choice but leaves the question to the people, right?

Stewart: yep

Barrett asks about stare decisis, which is "the core of this case": "not an inexorable command" but still important. Is there a distinct set of considerations for a watershed decision?

Stewart: Casey was unusual and a mistake. Even if the Court looks at legitimacy, it comes from willingness to stand firm for constitutional principle.

STEWART DONE.

Here comes Julie Rikelman.

Rikelman: this court rejected every possible reason for overruling Roe in Casey. The question is whether Casey was egregiously wrong in doing that.

Rikelman: it's a fundamental violation of a woman's liberty. And "elimination or reducing the right to abortion will propel women backwards."

Particularly women with health problem or who are poor or are young.

Thomas: I just have one question. Just an autonomy justification?

R: and bodily integrity.

Thomas: if a pregnant woman had ingested cocaine pre-viability, did the state have an interest in prosecuting her?

R: of course those issues aren't posed here, but states can regulate both before and after viability...

Roberts: we have a 15 week standard here. Is the difference btw that and viability as worrisome?

R: yes, poor women have much more trouble getting access to care. Abortion has been critical to women's equal participation in society.

R: economists' amicus brief shows that

Roberts: putting that data aside, if women have that choice, that supposes they had the fair choice. Why is 15 weeks an inappropriate line? Why isn't that enough time?

Roberts: 15 weeks isn't a dramatic difference from viability - vast majority of other countries have it around then

R: that is not correct about international law - most allow access up to viability even if they have nominal lines that are earlier

And 15 wks is 9 weeks before!

Barrett: both Roe and Casey emphasize burden of parenting and forced motherhood. Why don't the safe haven laws take care of that?

R: they don't matter. The idea that women can place babies up for adoption applied at the time of Roe, too. Parenthood is unique in impacting ability to work. 75x more dangerous to give birth in MS than to have a pre-viability abortion.

Barrett: Roe/Casey don't say much about adoption. So the right is about bearing the child?

R: it's both. two strands of cases including decisional autonomy

Gorsuch's first question is on stare decisis: undue burden standard has been shifting and is contested, so it's proved to be "difficult to administer".

R: undue burden not at issue here. Only q is viability line. It's been applied w/o difficulty for 50 yrs. Exceedingly workable.

A "reasonable possibility" standard would not work. Eg, you can't ban religious services one night/wk just because most people can go other nights.

Julie Rikelman is giving a simply masterful presentation.

R: without viability, undue burden would not be workable.

Alito: the Court drew the line at viability, and we need to take that into consideration. But what if we were to decide it now for the first time? How do you defend it? Maybe it doesn't make any sense and is arbitrary.

R: it's a principled line [interrupted again]...

Alito: Fetus has an interest in having a life whether before or after viability.

Alito: what's the secular philosophical justification for viability?

R: Court had to set a line between conception and birth and looked at fetus's ability to exist separately to avoid the philosophical question

Roberts says he is intrigued by what Breyer said: paradoxical conclusion that Court shouldn't be swayed by public opinion

R: it's precedent on precedent

Roberts: but viability did not factor into Roe or Casey really

R: undue burden test incorporates the viability line.

Breyer: interesting q. We're an institution more than a court of appeals (as Hamilton said: no purse, no sword, Federalist 78) yet we have to have public support. But a "super case" like this, where people are opposed, people "that's what kills us as an American institution."

🚨🚨🚨Breyer: "you better be damn sure that the normal stare decisis considerations are really there in spades, double, triple, quadruple" if you're going to overrule something as key as Roe/Casey.

Thomas asks same question again: privacy, autonomy, what?

R: it's liberty, 14th amendment due process clause. includes right to make family decisions.

Thomas: all of the above?

R: yes.

Thomas: all those come out of Lochner.

[WHAT????]

Alito going originalist (which he is not): questions about history. what about 1868 when 14th am was adopted?

A: what's your best case for the right to abortion?

R: allowing a state to take control of a woman's body is a fundamental deprivation of her liberty

Alito asks about an historians' brief

Is the right to abortion deeply rooted in the history and traditions of the American people?

R: Yes. in Glucksburg, court relied on Roe's conclusion

Kavanaugh: other side says Court has been forced to pick sides on the most contentious social debate and that the Constitution is silent on this and issue should be left to the states/Congress. And SCOTUS should be "scrupulously neutral" on the matter.

R: yes. Same arguments made in Casey, but Court rejected them. Court has interpreted liberty to include right to abortion.

Kav asks about stare decisis: history tells different story. Most consequential cases abandoned precedent - Baker v. Carr, West Coast Hotel, Miranda v. Arizona, Brown v. Board, Lawrence v. Texas, Mapp v. Ohio, Gideon v. Wainright, Obergefell...

Kav: what if Court had adhered to all the precedents that it abandoned? "the country would be a much different place". If we think Roe/Casey are seriously wrong, why not return to position of neutrality?

R: the view that a precedent is wrong has never been enough -- it needs a special justification. No such justification is to be found in this case.

Barrett asks hypo about 27-week ban in state sup court - is that ok?

R: viability line is principled and workable...and makes sense as a matter of first principles

Rikelman is done. now for Elizabeth Prelogar, the SG.

Prelogar: both individual and societal reliance on Roe and the viability line.

Thomas asks again about the nature of the right.

P: grounded in 14th am liberty right but promotes bodily integrity, privacy, etc.

Thomas asks the same question for the 18th time.

P: nothing anomalous about the right protected in Roe.

Sotomayor refers to Kav's string of citations to cases where previous rulings have been overruled: all of those involved recognition of state control of individual lives that the Court decided belong to individuals, right?

P: correct.

P: those other cases took issues *away* from state legislatures and the people to recognize a constitutional right.

Breyer: Casey referred to Brown and West Coast Hotel as previous cases where overruling was called for. Of course Plessy was wrong! And Lochner's laissez-faire was definitely wrong.

P: Yes, those passages in Casey carefully walked through each factor re: retaining precedent.

Alito: if a case was egregiously wrong, that's not enough to overturn it? What if Plessy was re-argued a year later? No way to overturn?

P: factual premise under that decision was entirely mistaken...

Alito: so there are circumstances when a decision needs to be overruled because it was wrong when it was decided, right?

[This is a pretty lethal line of questioning from Alito.]

P: This Court never has overruled in that way. (She skirts the question by moving from ought to is.)

Kagan: say more about reliance interests, please.

P: individual reliance of women and their partners to structure their lives and investments and careers

P: one in four American women have had an abortion.

and societal dimension: it's a liberty interest of women even though not all people agree with Roe v Wade

Sotomayor: people who are raped have no choice, no ability to plan for a pregnancy. also people who use contraception that fails.

P: right.

P: contraceptive failure rate is about 10%!

P addresses impact of enforcing a 15-week bar: young women, first-time pregnancies, lose a job, medical complications, relationships change...

Roberts: would reliance interests apply to the viability line as well? wouldn't be as strong with a 15-week line, right?

P: that kind of parsing isn't what the Court does and they're not asking for a 15-week line. There would be 6-week bans, etc.

Roberts: that may be what they're asking for, but it's a 15 week ban that's before us.

Roberts: viability justification is a syllogism not a justification, as John Hart Ely said!

OMG Thomas again on criminal child neglect like a broken record.

P: we are not denying state has interest in a kid born to a cocaine-using mother.

Gorsuch: if we reject the viability line, is there any other intelligible principle we could use to deal with 10, 12, 8, 6 week bans?

P: nothing more principled than viability.

Kav: you make a very forceful argument but the other side says there are two interests - fetal life, too. You say Casey accommodates both interest of women and fetus, but you can't accommodate both. "You have to pick. One interest has to prevail over the other."

Kav: why not let the people decide how to accommodate the two interests? Different answers in MS and NY, CA and AL - and that's ok, right?

P: No. This is a fundamental right of women, so it's not up to state legislatures.

Barrett returns to Kagan's reliance question.

P: safe-haven laws overlook consequences of giving up a child for adoption and there's nothing new here - Roe and Casey took account of that fact.

P: must leave abortion up to women's decision.

Stewart rebuttal time.

S: safe haven laws are now ubiquitous and relieve the huge parenting burden. Allow women to choose how many children to have.

S: we want the Court to be "scrupulously neutral", just as Kavanaugh said. Interests for everyone involved. Let the states decide.

Roe is egregiously wrong and will continue to "take innumerable human lives" unless the Court overrules it.

HEARING IS DONE.

Quick impression: bleak future for abortion rights.

I count:
- 6 justices to uphold the 15-week ban
- at least 4 justices to overrule Roe/Casey

Roberts wants to keep Roe/Casey and erase the viability line — but he cannot forge a majority with just three liberals.

@threadreaderapp unroll pls