Page 3 - Viability Line News Today

Here, i know this has been an intense day. >> hi, rachel. >> so tell me about that clarity. oral arguments today made clear this court will overturn roe. you are not in the minority in asserting that, but what is the basis for that clarity that you feel about this? >> i think going into argument today, there was a narrative that went, this isnt really a 6-3 court, its a 3-3 court that amy coney barrett and brett kavanaugh and the chief justice are incrementalists, they care about what people thi...

Isnt a substantial obstacle nothing would be. the issue was before the court and the court said at page 879 in adopting the undue burden test it was not disturbing the viability line. >> a very interesting question. i think justice barrett raised, too. usually just philosophical but i think it has bite here. when i read casey, it is not just one-on-one, two is greater than one. casey plus roe is greater than roe. they are making a point that we are an institution perhaps more than a court of app...

Was what you were saying in response, but maybe im mistaken. please correct me if i am. but what is your argument against applying the undue burden standard prior to viability? >> if the undue burden standard as this court laid out in casey which includes the viability line -- >> no, im asking -- i know -- were fighting hypothetical here, counsel. all right? accept the hypothetical. hypothetically, if the court extends the undue burden standard to regulations prior to viability, would that be wo...

Viability line and if that was the right place, if thats the right line to draw. lets take it out of the question of stare decisis and imagine that there is a state constitution that is identical to the 14th assembly 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 the state canno...

Liberty interest in resisting state control of her body. once the court recognizes that interest, it needs to draw a line as it does in other constitutional contexts, like the 4th and 5th majority. and the viability line makes sense. it focuses on the fe us thes ability to survive separately. thats an appropriate legal line. its objectively verifiable and doesnt delve into philosophical questions about when life begins. >> thank you, counsel. >> mr. chief justice and may it please the court. for...

Blackman said the viability line was dicta and had some insight on the question. >> i would add justice blackman pointed out the arbitrary nature of it. >> casey said it was the central principle in roe, viability after tossing out the trimester formula which many people thought was the core principle. but was viability an issue in casey? >> i dont think it was squarely at issue, your honor. it is a little hard not to take the court at its word when it emphasized that the viability is the centra...

Why wouldnt it be workable if you say the end of the second trimester 27 weeks, third trimester state interests increase. i dont understand why 27 weeks is less workable than 24. >> what i was trying to suggest is a viability line is a workable line. to change it there is a new line for principle had and workable. >> thats stare decisis. i ask as a matter of first principle. >> the viability line makes sense. if the state -- >> it is not constitutionally -- we could say 27 weeks and the second t...

>> 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 dont think that a response to -- by a fetus necessarily proves there is a sensation of pain or that there is consciousness. so i go back to my question of what has changed in science to ...

Standard of self-has proved difficult to administer and that is relevant to the analysis. and i want to give you an opportunity to respond. >> yes, your honor. the first point id 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. thats the title of this law. an act to prohibit abortion after 15 weeks. the only thing at issue in this case is the viability line, a...

>> it was a complete -- the definition of viability. not a reason that viability is a good line. >> its focused on the idea of fetal separateness and a line that accords with the history and tradition of abortion regulation contrary to the states arguments here at the time of the founding and 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 separate the states could -- it aligns with history and trad...