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say. >> really? >> yeah. they used to be more polite. i have to say, the court over the last few years has gotten a bit more sharp in their questioning. and even sometimes to each other, and making digs at each other. that's an unfortunate trend. but i think for the most part, you'll hear a respectful discussion of the issues between the advocates and the court. maybe the most important thing to think about is when the justices are asking a question, they're not necessarily wanting to hear the answer from the advocate. they're making a point to one of the other justices. and so you as the advocate have to just understand, you're guiding a conversation more than like giving a speech and saying why you're right. and that's where that listening skill is so important. can you figure out what the justice is trying to say to her or his colleagues. >> so it's not only the question, but also what may be behind the question, vis-a-vis another magistrate. >> exactly. it's 3-d chess. >> that's very interesting.
Casey-courtBitEach-otherQuestioningMakingDigsYrd-questionJusticesCourtPartAnswerIssues0 say. >> really? >> yeah. they used to be more polite. i have to say, the court over the last few years has gotten a bit more sharp in their questioning. and even sometimes to each other, and making digs at each other. that's an unfortunate trend. but i think for the most part, you'll hear a respectful discussion of the issues between the advocates and the court. maybe the most important thing to think about is when the justices are asking a question, they're not necessarily wanting to hear the answer from the advocate. they're making a point to one of the other justices. and so you as the advocate have to just understand, you're guiding a conversation more than like giving a speech and saying why you're right. and that's where that listening skill is so important. can you figure out what the justice is trying to say to her or his colleagues. >> so it's not only the question, but also what may be behind the question, vis-a-vis another magistrate. >> exactly. it's 3-d chess. >> that's very interesting. what are you looking for today early on? do you think that we'll be seeing early on, the, you know, the positions being clearly delineated by each magistrate? >> one of the things we know about the supreme court, what we hear in oral argument has nothing to do with the result when the court hands down the decision. so to neal's point, i think argument is often about the justices talking to each other and trying to sway people who they know are close to their position, but not there yet. what we'll hear, and i think particularly from the solicitor general, is this notion that you have to bring five justices together. >> well, arguments are beginning right now. what do you say we listen in to the u.s. supreme court. we will hear argument this morning in case 191392, dobbs versus jackson women's health organization. mr. stewart? >> mr. chief justice and may it please the court, roe v. 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 have damaged the democratic process. they have poisoned 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. 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 court below struck the law down. it didn't matter that the law -- that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. the lower courts held that because the law prohibits abortions before viability, it is unconstitutional, no matter what. 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 a day earlier, when she needs just a little help. that is the world under roe and casey. that is not the world the constitution promises. the constitution places its trust in the people. on hard issue after hard issue, the people make this country work. abortion is a hard issue. it demands the best from all of us, not just a few of us. when an issue affects everyone and the constitution does not take sides on it, it belongs to the people. roe and casey have failed, but the people, if given the chance, will succeed. this court should overrule roe and casey and uphold the state's law. i welcome the court's questions. >> general stewart, you focus on the right to abortion, but our jurisprudence seems 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? >> i think whichever one of those you're focusing on, you're honor, particularly if you're focusing on the right to abortion, each of those starts to become a step removed for what's provided in the constitution. yes, the constitution does provide -- protects certain aspects of privacy, on autonomy and the light, but going directly from general concepts of autonomy, of privacy, of bodily integrity, to a right is not how we traditionally, this court traditionally does due process analysis. so i think it just confirms, whichever one of those you look at, your honor, a right to abortion is not grounded in the text, and it's grounded on abstract concepts that this court has rejected in other contexts, as supplying a substantiative -- >> you say that this is the only constitutional right that involves the taking of a life. what difference does that make in your analysis? >> sure, your honor. i think it makes a number of differences. one -- i have mentioned two in particular. one, 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 matters of conscience, it marks it out as one of the unique areas where the supreme court has taken that to the people. it's something that implicates life and just marks off, justice thomas, how problematic and unusual and how much of a break the court's abortion jurisprudence is from those other cases. >> if we don't overrule casey or roe, do you have a standard that you propose other than the viability standard? >> 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 administerable, workable, practical, 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, that the choice would be undue burden standard, untethered from any brightline viability rule. >> i would like to go to a different topic, back to casey. i assume you've read casey pretty thoroughly. >> yes, your honor. >> and there are two parts. one is they reaffirm roe. put that to the side. the second is the opinion for the court, not for three people, but for the court. and that second part is about what stare decisis principles should be used to overrule a case like roe. and they say roe is 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. besides this court laying down a constitutional principle in this case, women's choice. that's what makes it rare. that's not what i'm asking about. i want your reaction to what they said follows from that. what the court said follows from that is that it should be more unwilling to overrule a prior case. 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. 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. and there are two sentences that i would like to read you. they say they really mean this, the court, not just three. to overrule under fire in the absence of the most compelling reason, to re-examine a watershed decision would subvert the court's legitimacy beyond any serious question. and the last sentence after they quote potter stewart on the same point, they say overruling unnecessarily and under pressure would lead to condemnation, the 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. that's the opinion of the court. and it's about stare decisis and how we approach it. i hope everybody reads this. all right. what do you say to that. >> sure, justice breyer. i would say a couple of things. i would say that 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 related to stare decisis. we have 30 years in the wake of casey to see what casey has done and what it hasn't done. >> it's called some bad things in the eyes of some people and some good things in the eyes of some people. >> your honor -- >> go ahead. >> i'm sorry, your honor. what i would emphasize, your honor, is 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 returned to them, so they could decide it, 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 as a result, under casey. and i would also emphasize, your honor, on stare decisis, over the last 30 years, workability, development of the law, and the work kt, the undue burden standard alone, on all the metrics casey is describing, or the vast bulk of them, casey fails. and i would also emphasize 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. those are not the hallmarks of precedent and they failed under stare decisis. >> i take it that your answer is, yes, you accept the way the special rule, the rule for the rear watershed, the stare decisis principles for deciding whether to overturn such a case as roe. you accept that and would say it's met? >> i would say in part, justice breyer. here's what i would emphasize. i do think that particularly, when casey looked outward and looked to what it saw at pressure, there was 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 that the court drew from that, that it couldn't provide a good enough example, that it would look unprincipled, those conclusions were, with respect justice breyer, mistaken. the last 30 years has seen no calming of that. it's been very different than some of the court's other controversial decisions -- >> counsel, 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 for casey and never challenged. you want us to reject that line of viability and adopt something different. 15 justices over 50 years have been -- or i should say, 30, since casey, have reaffirmed the viability line. four have said "no." two of them, members of this court. but 15 justices have said "yes." or varying political backgrounds. now the sponsors of this bill, the house bill in mississippi said we're doing it because we have new justices. the newest ban that mississippi has put in place, are saying, we're doing it because we have new justices on the supreme court. will this institution survive the stench that this creates? in the public perception that the institution 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. 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 the court errored in seeing this as a personal right as opposed to a militia right. if people it's all political, how will we survive? how will the courts survive? >> justice sotomayor, i think the concern about appearing political makes it absolutely bertive that the court reach a decision well-grounded on the structure and tradition and that carefully goes through the stare decisis factors. >> casey did that? >> no, it didn't. >> casey did through every one of them. you think it did it wrong. that's your belief. but casey did that. >> well -- >> 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." >> justice sotomayor, maybe i can highlight two. 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 have occurred since casey. it -- 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 of those things. >> i think it's an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and is fully human from a very -- >> in regular cases, courts decide whether science fits the dalbert standard. obviously, under the dalbert standard, the minority of people, a gross minority of doctors, who believe fetal pain exists before 24, 25 weeks, 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 a cortex is formed. it doesn't mean that there's been that much of a difference since casey. >> we pointed out as an example, your honor, of where roe and casey improperly preclude states for taking account for these things. and they should be able to be concerned about a fact of an unborn life being poked and then recoiling in the way one of us -- >> the 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. >> it was -- it was not an issue, certainly, the way it is an issue here, your honor. i think it was, to the exstent that the court had to reaffirm roe, the way to read that as something other than -- >> i'm sorry, i don't know what i said. was it an issue in roe? >> oh, in roe, i'm sorry your honor. my understanding is, no, the law there didn't have a viability tag. that was inserted by -- >> in fact, if i remember correctly, and i -- it's an unfortunate source, but it's there. in his papers, justice blackman said that the viability line was actually, was dicta and presumably he had some insight on the position. >> and justice blackman as well pointed out the arbitrary nature of and it the line drawing problems -- >> and then in casey, casey said that was the core principle or the 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? >> i don't think it was squarely at issue, your honor. again, it's a little hard not to take the court at its word when it emphasized that viability -- the viability is the central part of roe's holding and say that there are times that we are reaffirming that. we take that where it stands, but the court did not face a law like this, mr. chief justice. >> may i finish my inquiry? >> of course, justice sotomayor. >> virtually every state defines a brain death as death, yet the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli. there is 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. so i go back to my question of, what has changed in science to show that the viable line is not a real line. that a fetus cannot survive? and i think that's what both courts below said, that you had no experts say that there is any viability before 23 to 24 months. >> and what i would say is this, is 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 -- >> counsel, 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 long to individuals and the states can't intrude on them. we've recognized them in terms of the religion parents will teach their children, we've recognized them in their ability to educate at home, if they choose. they just have to educate them. we have recognized that a 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 all, like marbury versus madison, have been discerned from the structure of the constitution. why do we now say that somehow roe versus -- roe and casey are so unusual that they must be overturned? >> well, justice sotomayor, i would emphasize two things. when you're going beyond the constitution, this court has looked closely -- >> no, what i'm saying is they didn't go beyond the constitution. >> your honor, they did not deduce those from the structure of the constitution. they pointed to the 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 throughout. it's history and tradition, your honor. and i would also add, your honor, that those decisions, a great many of them draw -- 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. >> general -- go ahead. go ahead. >> would a decision in your favor call any of the questions -- any of the cases that justice sotomayor is identifying into question? >> no, your honor. i think for a couple of reasons. first of all, the vast run of those cases and some mentioned from time to time, griswald, lawrence, o'bergfeld. these are cases that draw clear rules, can't ban contraception, can't ban intimate romantic relationships between consenting adults, can't ban marriages between people of the same sex, clear rules that have not produced negative consequences through all of the other negative stare decisis considerations i've pointed out, your honor. and i would add that 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 of the court overrules here. >> so i'm sorry so interrupt again, but we really might be making progress. in the part that i read, of pac, i think we've gone back 150 years, maybe now we can go back 200. i think there have only been two cases which what they called the watershed and where the 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? >> well, your honor, i think there's quite a bit of difference -- i think -- the question is never, is it bad to overrule period. you know, surely -- >> i'm asking you to think, in near terms, there were two they mentioned. and they don't want casey -- they don't want roe to be the third. and now in your opinion, you just answered justice barrett, hey, all of these are not rising to that level, okay. are there any that do rise to the level in your opinion? >> i think -- and i'm not sure that i necessarily agree with the watershed characterization, your honor. but what i would say, i can't think of another that hits the radar, but i would emphasize that the problem here is that we're dealing with a right that doesn't have a basis in constitutional text -- again, very much in conflict with those values, justice breyer. >> i'm not sure how your answer makes any sense. all of those other cases, griswald, lawrence, o'bergfeld, they all relied on substantiative due process. you're saying there's no substantiative due process in the constitution, so they're just as wrong according to your theater. >> no, your honor. we're quite comfortable with washington versus glucksberg and how it analyzes substantiative due process and it looks at history and tradition to discipline -- >> i mean, in o'bergfeld, there was no history of same-sex marriage. >> and i think the court -- the court pointed out, look, when we were facing loving versus -- >> i'm not trying to argue that we should overturn those cases. i just think that you're dissimulating when you say that any ruling here wouldn't have an effect on those. >> respectfully, that's -- >> 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? >> i mean, your honor. we'll always have a diversity of views -- >> that's the point. isn't that -- isn't that the point? >> that there's a diversity of views and people can vigorously debate and make -- >> exactly. and that's what we're still doing -- that's what we're doing under undue burden, but we haven't been doing it on the viability line. >> and neither one has worked well. the viability line discounts and disregards state interests and the undue burden standard has all of the problems -- >> 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 the life, that's a religious view, isn't it? because it assumes that a fetus is life at -- when? you're not drawing -- when do you suggest we begin that life? >> your honor, i -- aside -- >> putting it aside from religion. >> i -- i'll try to -- i think there might be more than one question and i'll do my very best, justice sosotomayor. i think this court and gonzalez pretty clearly recognized that before viability, we are talking about unborn life with a human organism. and the philosophical questions that your honor mentioned, 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 -- >> 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 until lyphysically comp your existence, put you at medical risk, make you poorer, because we believe what? that -- >> sure, your honor. i think to answer, i think the question i think you led with and then i think expanded on, but is 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. >> general, are there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability? >> i believe so. i mean, i think there's a wide array of people of kind of all different views and of no-faith views who would reasonably have that view, your honor. it's not tied to a religious view, and i don't think were it otherwise, this court's jurisprudence on this issue would run right into some of its religious exercise jurisprudence. >> 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 loud est 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, you know, we want you to discard the entire set-up, and if you don't do that, we want you to discard the viability line, casey says is the heart, the central principle of roe. and so, usually, there has to be a justification, a strong justification in a case like this, beyond the fact that you think that the case is wrong. and i guess what strikes me when i look at this case is that, you know, not much has changed since roe and casey. that people think that it's right or wrong, based on the things that they have always thought it was right or 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. and, i mean, it strikes me that people -- some people think that those decisions made the right plans 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 came in 50 years ago and made the same arguments. i wanted to hear you react to that. >> thank you, justice kagan, thank you. i would emphasize a couple of 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 would 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, as i think -- and i think kind of 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 institution doesn't give them an answer to this. there's no neutral rule of law. judges unfortunately have to look within themselves. and that's never going to solve this issue. but if the matters return to the people, the people can deal with it, they can work, compromise, and reach different solutions. if they don't do that, we'll have all of this sort of damage. and at some point, it's appropriate for the court to say, enough, as it has in some of the -- the great overrulings in brown and in other cases where it said, this is enough. justice harlan had it right in dissent in plessey when he recognized that all are all and similarly, the state should be able to recognize, there are real values on both sides. we think that this one slightly outweighs or this one slightly outweighs or there's some balance to be drawn here. but if the court doesn't do that, justice kagan, it will be continued damage and the court will continue to apologize in this issue. i apologize, mr. chief justice. i've gone -- >> that's all right. i have a few little -- well, not little, i hope, questions. and it first gets back to the issue of viability. you know, in your petition for a cert, your first question was will all pre-viability on elective abortions are constitutional? and i think it's fair to say when you got to the brief on the merits, you kind of shifted gears and talked a lot more about whether roe and casey should be overruled. >> sure, your honor. we identified for the court three questions. we emphasized, as we do, this is important. only this court can resolve it. we emphasized that it was five times that the court was going to at the least need to reconsider or re-evaluate its precedence and we asked the court to 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 never court of appeals. so, you know, we raised the issue, in addition, but once the court granted only the first question, we presented every argument, as we, you know, signaled we would present the full-blown constitutional merits argument, with that fundamental question. so i would emphasize, your honor. the shift you go, the court granted one question. that question fairly includes what is the correct -- >> well, it fairly includes the broader arguments that you've raised. i'm not suggesting that. but on the other hand, presumably included the viability question, as well, because that's what you talked about in that one sentence. >> and we've addressed that, as well, your honor. what i would emphasize here is that the merits arguments of, you know, the validity of roe and casey is 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 of those points. but focusing on the question presented and presenting our best arguments for that, that's what we've done. >> 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 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 -- do we look at it from today's perspective, it's going to be a long list of cases that we will say were wrongly decided. >> i would say, mr. chief justice, that you can look both -- was it wrong at the time. was it unmasked by any new developments. but i think the colloquy with chief justice, once-controversial issues are quite settled and clear rules and don't have those considerations against them. by overruling and a lot of those decisions are quite readily roundable in history, tradition, and the court's traditional decisions your honor. >> justice thomas, justice breyer? justice alito? justice sotomayor? justice kagan? >> 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 sort of thinking about the great virt of regulations that states could pass so whether one is 15 weeks and one is 12 weeks and one is 9 weeks or a variation across a wide variety of other dimensions, what would that look like coming to the court? how do you think we should -- we would be able to deal with that or how would you council that to deal with that if the court were to go down that road? >> this is not to push back against the end, and i will answer your question, but part of why we've counseled is that's the only way to get rid of a number of the problems that i think your honor is alluded to. and that's 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. 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 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 with those features, and i hope i've answer yrd 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. >> justice gorsuch, justice kavanaugh? >> 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 is the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion as i understand it. you're arguing that the constitution is silent and therefore neutral on the question of abortion. in other words, that the constitutions need their pro-life nor pro-choice on the issue of abortion but leaves the issue for the people of the states, or perhaps congress to resolve in a democratic process.
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