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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 don't 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 central part of roe's holding saying it is reaffirming that. we take it as it stands. the court has not -...

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 becaus...

>> 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 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 show that the viability line is not a real line, that a fetus

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 consi...

>> it was a complete -- the definition of viability. not a reason that viability is a good line. >> it's focused on the idea of fetal separateness and a line that accords with the history and tradition of abortion regulation contrary to the state's 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 tradition in that respect with the viability line. >> justice thomas. >> you heard my question to coun...