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
is it your argument that a case can never be overruled simply because it was wrong? i think that at the very least the state would have to come forward with some kind of materially changed circumstance or some kind of new argument and mississippi hasn t done so. suppose plessy was argued and nothing changed. you could say it was a wrong decision on the day it was handed down and now overreeled. it was very wrong on the day it was handed down but what the court said in analyzing that to brown and casey was that what had become clear is that the factual premise that underlay the decision. is it your answer that we need all the experience from
with care. and that s why i said that. if you have anything to add to my plea to read it, please do. i agree completely and read the pages and reread them many times and it is another key distinction from the cases justice kavanaugh was referring to. that is as i understand the passages in casey the court carefully walked through each and every stare decisis factor this court focuses on. workability of the viability rule. legal and factual development and critical reliance interest and down the line found the case for reaffirming roe was overwhelming. in that situation when every factor the court consults to determine whether to retain precedent counsel is in favor of retaining it, i think casey properly perceived that a decision to overrule nevertheless based on the conclusion the justices thought the case was wrongly decided in the first instance would run counter to the ability of stare decisis to function as a cornerstone of the rule of law in this context.
are two different interests at stake and the people in those states might value those interests somewhat differently. why is that not the right answer? justice kavanaugh it is not the right answer because the court correctly recognized that this is a fundamental right of women and the nature of fundamental rights it is not left up to state legislatures to decide whether to honor them or not. different rules would prevail throughout the country. it would mean women in those states who are refusing to honor their rights and who are forcing them to continue to use their bodies to sustain a pregnancy and then to bring a child into the world will have no recourse other than to travel if they are able to afford it or to attempt abortion outside the confines of the medical system or have a child even though it wasn t the best choice for them and their family. thank you. justice barrett. a follow up to justice
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