0 decisis analysis and i want to give you an opportunity to respond. >> the undue burden test is not at issue. that applies to regulations, not prohibitions. the state has conceded this is a prohibition. thats the title of this law is an act to prohibit abortion after 15 weeks and the only thing that is at issue in this case is the viability line. the viability line has been workable. the lower federal courts have applied it uniformly for 50 years, the fifth circuit had no difficulty striking down this law unanimously 3-0. it has been an exceedingly workable standard. if i may return to your question, a reasonable possibility standard would not be workable. it would boil down to an argument that states can prohibit a category of women from exercising their constitutional right merely because of the number of people in the category and that is not how constitutional rights work. a state would never say it could ban religious services on a wednesday evening for example because most people could attend religious services on another night of the week. >> that's helpful, i think. i want to make sure i understand what you are telling me, counsel. that if the court were to in this case step past viability and apply undue burden, the undue burden test to regulations prior to viability, you would agree with the other side, i think, that that's not a workable standard. is that a fair under standing what you are telling the court? you think it would be workable? >> if i made clarify the undue burden test has been workable for regulations. >> i understand that. if it were to apply. if the court -- 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. what is your argument against applying the undue burden standard prior to viability? >> if the undue burden standard as the court laid out in casey which includes the viability line. >> i'm asking -- we're fighting the hypothetical here, counsel. accept the hype thetically the court were to extend the undue burden standard to regulations prior to viability would it be workable or would it not? >> without viability it wouldn't be workable, your honor. it would 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 is not a constitutional standard. >> i appreciate that clarification. thank you. >> 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 quote there are no half measures here. is that a correct understanding of your brief? >> your honor, it 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, undue burden without viability would be a equivalent of overrule casey and roe. the viability line is the central holding of those cases. casey mentioned it no fewer than 19 times and the court in june medical a year ago affirmed the viability line is the central holding of both casey and roe. >> you do emphasize that court drew the line in viability and roe and reaffirmed it in casey and something we have to take 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. the wom -- 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? >> no, your honor. if i make a few points to answer your question. the state views viability as arbitrary because it completely discounts the woman's interest. >> 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? >> viability is the principled line your honor. >> i'm trying to see whether it is a principled line. do you agree with me at least on that point. a woman still has the same interest in terminating her pregnancy after the viability line has been crossed. >> yes, but the court balanced the interests in ordering the interests of the states. >> 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? >> in some people's view it doesn't. but what the court said is those philosophical differences couldn't be resolved in a way. >> that's what i'm getting at. what's 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 standards. it has changed and may continue to change. >> no, it is principled. in ordering the interest of state the court had to set a line between conception and birth and looked at the fetus's ability to survive separately as a legal line verifiable and doesn't require the court to resolve the philosophical issues at stake. >> i want to focus on stare decisis. i found justty 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 are popular or not with the people. casey seemed to say we shouldn't base our decisions not only on that, but whether they are 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. sort of a super stare decisis regarded as the most erroneous decision. do you think there is that category for is it just normal? >> i think it is precedent on precedent. casey did the stare decisis analysis on roe. the one before this court was if that was wrong. your earlier question about whether viability was squarely at issue in casey it clear was at pages 869 to 871 the court addressed viability. the government had made the argument that viability -- >> 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 on where viability was. they applied throughout the whole range, period. they didn't say anything about viability. like what justice blackman said in when discussing among his colleagues, 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 didn't have to address the line drawing at all in casey. >> i disagree with that, your honor. the undue burden test incorporates the viability line. that is what the court was assessing the regulations whether they imposed a substantial obstacle in the path of a woman before viability and if a prohibition isn't 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 appeals. or a district court. it is 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 jobs, we use reason, we don't look to just what's popular and that's where you see 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 will be ready to say no you're just politicians, you're just political and that's what kills us as an american institution. that's what they are saying. so we are looking at it for that. 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 is there in spades and they go through and show the analysis. okay? what's the paradox? maybe you think i've just made an argument 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 or if you've ever -- when that occurred to you i don't want to overrule the -- i wouldn't want the court to overrule the stare decisis section of casey and that's what is being broad up. i've tried to make it clearer. >> the point the court was making was that the fact that some states may continue to enact laws in the piece of the court's precedence has never been enough of a troen to overrule and true for a number of decisions the court issued. the fact that some people continue to disagree with them is not precedent to discard it. >> back to my original question. if -- i know your interest here is in abortion. i understand that. but if i were to ask you what constitutional right protects the right to abortion, is it privacy, is it autonomy? what would it be? >> it's liberty, your honor, the 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 a family decisions and the right to physical autonomy including the right to end a pre-viability pregnancy. >> so it's all of the above. >> that's how the court interpreted the liberty clause for over 100 years in cases going back to meyer, griswald, carey, loving, lawrence. >> all of those come out of lochner so we've dropped part of it. so i understand what you have are saying but what i'm trying to focus on is if we -- is to lower the level of generality or be a little more specific. in the old days we used to say it was a right to privacy the court found in the due process, substantive due process clause, okay, or in substantive due process. what are we relying on now? is it privacy? is it autonomy? what is it? >> it continues to be liberty and the right exists whatever level of generality the court applies. there was a tradition under the common law for centuries of women being able to end their pregnancies. 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 it makes sense. otherwise the constitution would reinforce the historical discrimination against women. >> justice breyer. justice alito. >> you mentioned the common law. let me ask you about history. did any state constitutional provision recognize abortion was a right, liberty or immunity in 1868 when the 14th amendment was adopted? >> no, but it had been allowed under the common law for many years. >> does any judicial decision at that time or shortly or immediately after 1868 recognize that abortion was a right, liberty or immunity? >> there were state high court decisions shortly before then talking about the ability of women to end a pregnancy. >> what is your best case? >> for the right to end a pregnancy, your honor? 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. once the court recognizes it deserves protection it needs to draw a workable line and viability is the line that balances the interests at stake. >> a brief for the american historical association says abortion was not legal before quickening in 26 out of 37 states at the time when the 14th amendment was adopted. is that correct? >> that is correct because some of the states had start evidence to discard the common law with a view a woman's role was wife and mother and why it's appropriate to do the historical analysis at a higher level of generality. >> can it be said the right to abortion is deeply rooted in the history and traditions of the american people? >> yes, it can. again founding women were able to end their pregnancy under the common law and this court in glux berg discussed casey as a decision based on history and tradition and note 19 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. >> what was the principle source court relied on for roe historical analysis. who was the author of that article. >> i don't remember the author. i know the court spent many pages of the opinion doing a historical analysis and a brief on behalf of several key american historian associations that go through that history in detail because there is even more information now that supports roe's legal conclusions. >> thank you. >> i think others would say the court has had 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 is 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 neutral on the question of the abortion, neither pro-choice or pro-life. but because they say the constitution doesn't give us the authority we should leave it to the states and we should be very 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. i want to give you a chance to respond to that. >> yes, a few points if i may. first those very same arguments were made in casey and the court rejected them saying that the philosophical disagreements can't be resolved in a way 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 interpr*eted 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, and if they aren't 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. >> 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. history helps think about stare decisis as i've looked at it. and the history of how the courts applied stare decisis. when you dig into it history tells a somewhat different story than is sometimes assumed. think about some of the most important cases, the most than constitutional cases in this court's history where the cases overruled precedent. brown versus board. 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 that required police to give warnings about the right to remain silent and to have an attorney present to suspects in criminal custody. lawrence versus texas said the state may not prohibit same sex conduct. knapp versus ohio state criminal prosecutions to exclude evidence obtained in violation of the fourth amendment. gideon versus wainwright which guaranteed the right to counsel in criminal cases. a case that recognized the constitutional right to same-sex marriage. in each of those cases. that's a list and i could go on. those are some of the most important in the court's history the court overruled precedent and turns out if the court in those cases had listened and presented with arguments in those cases adhere to precedent in brown versus board. adhere to precedent on west coast hotel and adhere to atkins and lochner 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 the precedent. so the question on stare decisis is why if -- i know you disagree with what i'm about to say in 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 tell us the right answer is the return to the position of neutrality and not stick with those precedents in the same way that all those other cases didn't? >> because the view that a previous precedent is wrong has never been enough for this court to overrule. it certainly shouldn't be enough here when there is 50 years of precedent. the court has required something else. a special justification. the state doesn't come forward with any special justification and makes the same exact arguments the court already considered and rejected in its stare decisis analysis in casey and 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. >> thank you. >> justice barrett. >> i want to ask you a follow-up question. the chief was asking about the viability line and if that was the right place, if that's the right line to draw. let's 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 cannot take away the right up to 27 weeks and after that adopts and undue burden standard. as a matter of first principle is that line acceptable as a matter of constitutional law? >> your honor, it may be but i think the question in this case is whether a line is more principled or workable than viability because of the stare decisis content. >> that's the roe framework. why wouldn't it be workable if you say the end of the second trimester 27 weeks, third trimester state interests increase. i don't 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. >> that's 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 trimester. >> you could but the viability line makes sense given the protection for liberty because it comes from the woman's liberty in resisting state control of her body. once the court recognizes the interest it needs to draw a line as it does in many other constitutional contexts like the fourth and fifth amendment. the viability line makes sense because it focuses on the fetus's ability to survive separately. an appropriate legal