quite notable. harris: you know, andy, i want to know your thoughts on the highlights about this particular issue. something that jonathan just touched on and it was said so many times during the last almost two hours of the court arguments on this case. so the viability line that exists in roe versus wade, casey is that 24 weeks. mississippi says viability for life now because of science moving us forward should be earlier than that, 15 weeks. talk to me about what really was highlighted to you. what was important about that viability line? i think what stuck out to me about that is that chief justice roberts suggested that the entire roe was built on sand. viability was not something that was argued by either of the sides in roe. it was something basically that
justice kavanaugh listed, all of them virtually, except for maybe one, involved us recognizing and overturning state control over issues that we said belonged to individuals. the right in miranda to be warned was an individual right, correct? that s right, justice sotomayor and it is a key distinction with the list of precedents. i think there are two key distinctions. the first is in the vast majority of those cases the court was taking the issue away from the people and saying it had been wrong before not to recognize a right. i think that matters because it goes straight to reliance interests. here the court would be doing the opposite. it be telling the women of america it was wrong. the ability to control their bodies and perhaps the most important decision they can make whether to bring a child
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
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
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