0 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 i'd 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. that's 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, and the viability line has been enduringly workable. the lower federal courts have applied it consistently and uniformly for 50 years, and the fifth circuit here below had no difficulty striking down this law unanimously, 3 -0. it's been an exceedingly workable standard. if i may return to your question, sir chief justice, a reasonable possibility standard would not be workable. it would ultimately boil down to an argument that states can prohibit a category of women from exercising the constitutional right merely because of the number of people in the category and that's just not how constitutional rights work. a state would never say that it could ban religious services on a wednesday evening, for example, simply because most people could attend religious services on another night of the week. >> i wanted to -- that's helpful, i think. i want to make sure i understand what you're telling me. 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 understanding of what you're telling the court? >> no, your honor. -- >> you think that would be workable? >> i believe if i may clarify, i believe the undue burden has been workable for regulations. >> i understand that. if it were to apply -- if the court were to -- i thought this was what you were saying in response, but maybe i'm 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, i'm asking -- i know -- we're 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 workable or would that not be workable in your view? >> without viability, it would not be workable, your honor. it would ultimately 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 thos not a workable standard, and it's not a constitutional -- >> i appreciate that clarification. thank you. >> i read your brief to say that the only real options we have are to reaffirm roe and casey as they stand or overrule them in their entirety. you say that there are no half measures here. is that a correct understanding of the brief? >> your honor, it certainly the arguments of the state has presented is what we're responding to there. that all the state's arguments including their alternatives which are undue burden without viability, would be the equivalent of overruling casey and roe because the viability line is the central holding of the 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 the court drew the line at viability and roe and reaffirmed that in casey. that's something we have to take very 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. 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. and if i may make a few points to answer your question. first, i think the state views viability as arbitrary, because it discounts the woman's interest. >> but does a woman -- 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 a principled line, your honor, because in ordering the -- >> i'm trying to see whether it is a principle line. do you agree with me on that point? a woman still has the same interest in terminating her pregnancy after the viability line has been crossed? >> yes, yoush, but the court balanced the interest -- >> look at the interest on 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 can be resolved in a way -- >> that's what i'm getting at. what is the philosophical argument? the 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 independent argument risices, but viability is dependent on medical technology and medical practice. it has changed. it may continue to change. >> the court had to set a line between conception and birth, and it logically looked at the fe us the's ability to survive separately as a legal line. it's verifiable and doesn't require the court to resolve the philosophical issues at stake. >> i just want to focus on stardecisis for a moment. i found my colleague's comments 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're popular or not with the people. casey seemed to say we shouldn't base our decisions not only on that, but whether they're 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. it's sort of a super staridesis for what are regarded by many as the most erroneous decisions. do you think that is a category, or is it just normal? >> i think it is precedent on precedent. casey did the analysis for roe. the question before this court is whether that analysis was egregiously wrong. if i may answer your earlier question about whether viability was squarely at issue in casey, it clearly was, your honor. pages 869 to 871, the court squarely addressed viability, because the government had made the argument that viability -- >> no, no, i appreciate that casey addressed it. but that's different than saying it was at issue. it said it was the central principal of roe because it was pretty much all that was left after they were done dealing with the rest of us. the regulations in casey had no applicability or not depending on where viability was. if they didn't say anything about viability, it's like what justice blackman said in -- when discussing among his colleagues, which is 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 they didn't have to address the line drawing at all in casey. >> i disagree. the undo burden test incorporates the viability line. that was what the court was assessing the regulations against. whether they imposed a substantial obstacle in the path of a woman before viability. and if a prohibition like this law isn't a substantial obstacle, then nothing would be. the issue was squarely before the court, and, in fact, the court said at page 879 that in adopting the undue burden test, it was not disturbing the viability line. >> it's a very interesting question. i think justice barrett raised, too. it's usually just philosophical, but i think it has bite here. when i read casey, it's not just one on one. you know, two is greater than one. casey plus row is greater than -- they're making a point. that we're an institution, perhaps more than a court of appeals or a district court. it's hamilton's point. 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 job, we use reason, we don't look to just what's popular. and that's where you've seen 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 water shed case, where people are really opposed on both sides, and they really fight each other is they are going to be ready to say no, you're just political. you're just politicians. and that's what kills us. as an american institution. that's what they're saying. so we're looking at it for that, but we are looking too, 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 stari considerations overruling are really there in spades double, triple, quadruple, and then they go through and show their knowledge. okay? what's the paradox? maybe you think i've just made an argument that 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. i don't know if you ever have -- when that occurred to you. i don't want to overrule the -- i wouldn't want the court to overrule the staridecisis section of casey. that's what i think is being brought up. maybe i haven't made it clearer, but i've tried to. >> yes, your honor. i think the point the court was making was the fact that some states may continue to enact laws in the teeth of the court's precedent has never been enough of a reason to overrule. and that's true for a number of decisions that the court has issued. the fact that some people continue to disagree with them is not a basis to discard that precedent. >> justice thomas? anything further? >> 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. it's the textual protection in the 14th amendment that a state can't deprive a person of liberty without due process of law. and the court interpreted it the right to physical autonomy including the right to end a previability pregnancy. >> so it's all the above? >> well, that's how the court has interpreted the liberty clause for over 100 years in cases going back to myier, griswold, loving, lawrence. >> yeah, but i mean, all of those sort of just come out of lockner. so it's that we've dropped part of it. i understand what you're saying, but what i'm trying to focus on is to lower the level of generality or be more specific. we used to say it was a right to privacy that the court found in the due process, substantive due process clause. okay? or in substantive due process. i'm trying to get you to tell me what are we relying on now? is it privacy? is it autonomy? what is it? >> i think 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. in addition when it comes to decision related to family, marriage and childbearing, can court has done the analysis at a higher level of generality. that makes sense otherwise it would discriminate against the historical decisions against women. >> you just mentioned the common law. so let me ask you a couple questions about history. did any state constitutional provision recognize abortion was a right, liberty when the 14th amendment was adopted? >> no, but it was allowed under the common law for years. >> was there any judicial decision or shortly or immediately after 196 that recognized abortion was a right, liberty or immunity? >> there were state high court decisions shortly before then talking about the ability to end a pregnancy before quickening. >> what's your best case? >> for the right to end a pregnancy, your honor? >> uh-huh. >> 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. and once the court recognizes that liberty interest deserves heightened protection, it needs to draw a workable line, and liability balances the interests at stake. >> the brief for the american historical association says that abortion was not legal before a 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 started to describe the common law at that point because of a discriminatory view that a woman's proper role was as a wife and mother, a view the constitution rejects, and that's why it's appropriate to do the historical analysis at a higher level of generality. >> in the case of that, can it be said the right to abortion is deeply rooted in the history and traditions of the american people? >> yes, it can. again, at the founding women were able to end their pregnancy under the common law, and in fact, this court specifically discussed casey as the decision based on history and tradition, and it note 19 specifically called out and relied on the conclusion that at the time of the founding and well into the 1800s, women had the ability to end the pregnancy. >> what was the principal source the court relied on in roe for its historical analysis. who was the author of that article? >> i apologize, your honor. i don't remember the author. i know that the court spent many pages of the opinion doing historical analysis. there's also a brief on behalf of several key american historian associations that go through that history in detail. there's even more information now that supports roe's legal conclusions. >> thank you. >> i think the other side would say that the core problem here is that the court has been forced by the position you're taking and by the cases 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 and text and history. that the constitution needs more pro life 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 scrupulously neutral on the question of abortion. neither pro choice nor pro life, but because they say the constitution doesn't give us the authority, we should leave it to the states. we should be scrupulously neutral on the question, and 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 the same arguments were made in casey and the court rejected them saying that this philosophical disagreements can't be resolved in a way the woman has no choice in the matter. i don't think it would be a neutral position. the constitution provides a guarantee of liberty. the court interpreted it to include the ability to make decisions related to childbearing, marriage and family. women have an equal right to liberty under the constitution. if they're not 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 staridesisi and think about how to approach that here. there's been lots of questions picking up on justice barrett's questions and others. history helps. think about this as i've looked at it, and the history of how the court's applied it. when you really dig into it, history tells a somewhat different story than is assumed. you think about some of the most important cases, the most consequential cases in this court's history. there's a string of them where the cases overruled precedent. brown v board. outlawed separate by equal. baker versus car which set the stage for one person, one vote. west coast hotel which recognized the state's authority to regulate business. miranda versus arizona which required police to give warnings about the right to remain silent . warrant v texas. map versus ohio held the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in vital of the 4th amendment. gideon versus waneright guaranteed the right to counsel. in each of those cases, and that's a list, and i could go on, those are some of the most consequential, important in the court's history, the court overruled the precedent, and it turns out if the court in those cases had listened and they were presented with arguments in those cases adhere to precedent in brown v board. on west coast hotel. adhere to atkins and lockner. and if the court had done that in those cases, the country would be a much different place. i'm assuming you agree with most of the cases i listed there. the question on this is why if -- and i gree you disagree with if, but if we think that the prior precedents are seriously wrong, if that, why, then, doesn't the history of this court's practice with respect to those cases tell us the right answer is actually a return to the position of neutrality, and not stick with those precedents in the same way all the other cases did. >> because the view that a previous precedent is wrong has never been enough for this court to overrule. and it certainly shouldn't be enough here when there's 50 years of precedent. instead, the court retired something else. a special justification, and the state doesn't come forward with any special justification. it makes the same arguments the court already considered and rejected in the analysis in casey and, in fact, there is nothing different. there is no less need today than 30 or 50 years ago for women to be able to make this fundamental decision for themselves about their bodies, lives, and health. >> thank you. >> i want to ask a followup question. the chief was asking about the viability line and if that was the right place, the right line to draw. let's take it out of the question and imagine there's a state constitution that's identical to the 14th amendment 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. and so that state supreme court says we think that the right exists in an absolute sense that the state can not take away the right up to 27 weeks and after that adopts an undue burden standard. as a matter of first principals, is that line acceptable as a matter of constitutional law? >> your honor, it may be, but i think that the question in this case is whether a line is obviously more principled or more workable than viability because of the con -- >> why? that's the roe framework. the trimester. why wouldn't that be workable if you pick a line and say 27 weeks, third trimester state's interests increase. i don't understand why 27 weeks is less workable than 24? >> i'm not trying to suggest it is. what i was trying to suggest is the viability line is a princi