cases including the challenge to a mississippi law banning abortions after 15 weeks and another case out of new york involving second amendment rights. the supreme court's term begins october 4th. welcome back for the final panel today where we will be sitting and talking about what is coming in the future term. it will perform on the dc circuit and clarence thomas on the supreme court. and to my immediate left is the partner client high-stakes appeals of the u.s. supreme court and federal and state appellate courts across the country. she's argued twice before the supreme court prevailing in both cases and presenting many arguments and federal courts and state courts of appeals and clerked for clarence thomas, the dc circuit, received her undergraduate degree from princeton, magna cum laude from harvard and phd from the s university of cambridge. if i wasn't here speaking with you i would be a philosophy professor right now.ro please welcome the panel. [applause] >> we are going to start off with amy to give an opening view of what she wrote in her article in the cases that she covered which are blockbusters. >> thank you so much for having me and inviting me to write the article. happy constitution day and it is also the 82nd birthday today. i sort of had him in my mind when he retired so it was a shock to realize but we can all raise an apple and yogurt in his honor tonight. last term that we spent most of the day talking about was unprecedented in the sense that it was entirely remote and it was the first term with justice ginsburg passed away and the court shifted to the right and the court now has on the docket for the upcoming term a handful of the juicy cases involving aabortion, guns, religion, potentially affirmative action, and so i think the question isn't whether or not the court is going to continue to shift to the right, but how far it will shift to the right and presumably the answer lies at least in part with chief justice roberts not necessarily because he makes a difference anymore but because whether or not he has any influence on the court and so that's something that i imagine we could discuss and we willsc see quite soon. i would also like to touch a little bit on the shadow docket of the article with august 1st. it's a wonderfully smooth editing process. some of them are going to be showing up on the merit docket but to talk a little bit about some they will be at the court this term and many of you are no doubt aware during the campaign donald trump promised to appoint justices who would overrule roe v wade and said he would appoint the conservative justices and it would happen automatically. he appointed three justices and now is the time to see whether that will come true after the 15th week of pregnancy so under planned parenthood versus casey and roe v wade the constitutional right to an abortion up to the point at which a fetus becomes viable which is somewhere around 22 to 24 weeks of pregnancy so the u.s. court of appeals for the fifth circuit under roe and casey you need to weigh in on the constitutionality of this law. the supreme court agreed to take it up after lifting the case like 15 times and will now hear arguments. meanwhile, as you are no doubt aware if you've been watching the news at all in the last month or so, the supreme court i guess two weeks ago now agreed on the so-called shadow docket refused to step in and block the abortion bill. this was an order that came out about the paragraph and a half and the justices in the majority in the case made clear they said that there were serious questions about whether it was constitutional, but nonetheless they were not going to step in andep of block it from going ina effect. the liberal justices dissented from that order so on the one hand, the court said that they were not weighing in on the constitutionality, but on the other hand, right now in texas until that lawnt is settled, the is no right to get an abortion. so that is the next case that is going to be argued in november that i want to talk about called new york state rifle and pistol association. the district of columbia versus the city of chicago that you have the right to have a handgun in your home for self-defense. gun rights supporters the next ten years or so asking the supreme court to say more about the scope of theht right. they turned down requests to do so in 2019 the supreme court took up a new case out of new york city involving the new york city rule that banned the owners of licensed handguns from taking the handgun outside of new york even to go to a shooting range or to their vacation home to give two examples. it wasn't likely to succeed in the court and changed the rules so much of the argument at the supreme court in december of 2019 was whether or not it was moved. the supreme court finally in april of 2020 and the majority agreed that it was moved. three justices dissented from that decision. a fourth justices concurred in the decision but suggested that perhapsst the court should takep one of the ten or so reviews that had been on hold for the last several months to weigh in on the scope they put all the cases backup for conference and we lifted them something like ten times indicating there was something going on behind the scenes and then denied them all. we don't know but perhaps whether it was a vote to grant review so then you fast-forward to 2021 written in the dissent on the seventh circuit seventh circuitsuggesting that e more receptive to the argument that the gun rights supporters were making now on the court and thema court agreed to take up ts new case. it is a challenge to the carry regime under which you have to show a special need beyond sort of the general desire to have a gun when you are out and about fornd self-defense. so the courts will hear argumentsas in that case in november. the next case that i want to talk about is called carson in the department of revenue by the vote of 5-for ruled that montana's exclusion of religious schools from a state tuition aid program that provided scholarships to attend private schools as long as they were not religious schools discriminated against religious schools based on the religious status violated the constitution and soso this involved allegations of discrimination based on religious use. the casese comes to the court fm mena which is an unusual system for the secondary schools because many parts of the system are quite rural and the constitution allows the school districts that don't operate their own high schools to make arrangements for their students toto attend by sending them directly they are and by paying tuition for them to attend those public high schools or by paying tuition for them to attend private high schools and so a group of parents are arguing that being able to use these tuition funds to attend private schools to use the funds for religious instructions violates the constitution. >> i do not want to drown on for too long. >> i don't want to put anyone on the spot especially on a question if there is no opinion on the abortion case for example, you can say pass. in terms of what's going on the interesting question i have is realistically isis there anyway, maybe it is in this case can the court avoid roe in the next three years? >> they can avoid anything. they are pretty good.er it's whether given what the states are doing, tomac. >> i wouldn't underestimate the interest in the compromises but reframing the components. i wouldn't underestimate the willingness to reframe the test but seeing that it is already reframed and is still something. a. >> as was brought up on the docket, what are his biggest concerns you would think for next term? >> there are so many similarities in how they treat those two things. so those states that don't like guns will literally pass to keep and bear arms so states that don't like abortion seemed equally intend' on doing everything they can to suppress whatever the scope is and they don't seem to care so the resolution may end up being some kind ofnd readjustment because i think a lot of this is ultimately the standard of review causing these problems. the standard of review in something like casey is up in the air so it emboldens people to say guess what, i have a new theory and with guns i think it is much the same way. maybe they will solve the problem by not overruling but by coming in whether it's weak or strong or whatevere it is that giving some structure so we don't constantly have these cases and i could see that getting some traction among do whatever you want and we are out, while intellectually appealing butut it seems like a big step in a short period of time. >> i've made that an analogy. the supreme court in both instances have the fundamental right they do not want to clarify very much with that is so. they rewrote it to talk about licensing and not simple carry. >> i followed that case and the broad view is that it was probably a more accurate reflection of what the law does and they put in the concealed carry because it only deals with concealed carry and one can imagine the differences between the open andn concealed carry t i think that the sort of view from the second amendment practitioners is you might be able too stick one or the other but you can't do both. but we don't know who is armed. you could go either way on that but to say you can't do either i think is the way that a lot would approach that and maybe they are rewriting the question trying toio finesse that that yu have to at least let one of them happen. >> i think it explains why when you look at the position of the abortion case it highlights the two dynamics and where is the justice going to fit in on this. this always creates some sort of attention because if you think that it will be a loss or a bad outcome on the merits but i do think that it's safe to predict that had just a spirit not joined the court i don't know that they would have gotten granted and i would have been very surprised. but i think that the chiefs influences on the merits aside. in both of the cases what we are talking about so far is how is the court agreed to compromise or will they try to do a grand bargain or try to sort of make something another crack at the successor and then amy mentioned an area where the chief i think is very effective or has been. it's what we might call the trendy cases to get to one result. it's particularly almost six or seven years to get to that ruling. i will bes interested to see because trinity lutheran was a narrow decision with a broad majority. espinoza wases not. it was 5-4. this is not a case in which the vote is necessarily going to make a difference for the other conservatives and the liberals on the other side talking about the shadow docket in a little more detail. but talking about another area in which we are seeing the effect if justice ginsburg were still on the court because there were four votes toin block it ad i have no doubt she would have been. a. >> if i can touch a little bit on this and the shift between the grants and the merits i think we have sometimes over described the effect thatsc it's going to have. it's less about what the outcome is going to be than getting to an outcome that actually does anything. the fear for a very long time if i had to guess was not that you would come up with a single opinion with a quirky test that did nothing so why are you granting the case to do nothing other than add to the confusion and to those that remember the iconic years lots of cases would have been better off not granted than actually being decided as they were. they added nothing and only messed it up for another ten, 20, 30se years. so not only that but now they have the consensus on the theory. roberts strength is pretty strong. his ability to try to get the court to decide fairly and more unanimously as may be more strong than we thought it would be or do we still not know. we still have to get the claim on that line you take the big one at the top. >> i think amy mentioned it might be a good time to talk about it. this is a lopsided term. the controversial cases are abortion, guns and to a lesser extent but important extent the religions base. many of the other cases on the docket are important but except for the docket that is a lot of discussion i think what is the court of doing and why does the court have all of these emergencies days and why does it seem to make some important decisions in the shadow docket what have they done recently in the shadow docket and obviously it is an important motion for the litigations have produced some pretty substantively important rulings they think in the religious liberties space with respect to bolstering the idea ofor the nondiscrimination based on exercise of the like and also the remaining skirmishes which is the latest from the trump administration that was a feature of the shadow ofdocket for the skirmishes of e innovation policy and the administration would enact a policy, the district court would get litigated all the way to the supreme court. it was sort of a holdover on that and other district courts are now undoing these policies where the court allowed the administration to proceed over the biden administration objections so to give another example of a lot of important policies and things that are happening in the shadow docket i'm not sure that they have much choice. a lot of the cases that come up from these are coming to the shadow docket because you can't just wait for the court to take 90 to 150 days. the injunctions that have nationwide affects onna importat policies that will continue to see the fixture. i think that frankly it is now baked into better or worse. >> it implies something nefarious and insidious and it is just nonsense. you get the application and what are you going to do about that? the answer is you rule on it as quickly as possible and when you get them together to come up with an answer, you release your order. i don't know what the world expects for them other than do the business that comes before us and give an answer. i understand some of these emergency applications are leading to opinions but quite franklyon i would take those opinions with a grain of salt they are good for now and discourage people but they will go on the full merit and i'm not sure anyone is going to feel bound by an emergency opinion when it gets to the merit. with full consideration, that would be great. what i find interesting because people are becoming so impatient you used to see the abortion laws that would pass and say unless and until it is overruled so there will be a deliberate challenge and there could be a deliberate consideration. now you get to texas and it's no good today, tomorrow, instantaneously no matter what. you see this with some of the executive actions as we have listed in the administration. maybe we would have the hearing. >> if someone is going to be executed it would at least be nice to know how people voted. not a one paragraph order in the middle of the night. ori do think that the court has responded. you sawre what the abortion ordr was. there was a longer order and opinions that came with it. on the wednesday before thanksgiving. that is part of my job. but it's at a time when at least that is part of the reason why it seems a little bit it isn't as transparent as it seems and we see with the spiritual advisor case it is involving the right to have a spiritual advisor in the chamber praying out loud and laying his hands on him because he says that that is part of his christian faith and the supreme court has had a couple of these cases come to them on the so-called shadow docket over the last two years it wouldn't have allowed a muslim or christian pastor and they said it doesn't work that way and then the third time, texas i can't remember exactly what the issue was but it said it doesn't work that way you can either let everybody and or nobody so they said okay we are not going to let anybody in. so an inmate came back and said they are not letting anybody in. somebody came back last weekend the supreme court said okay let'ssa here in oral argument about it in october. that'ss fine. >> i'm delighted they did that by the i way. whatever the security concerns but if you are going to stop thinking about it that the front and could you imagine there's no burden. >> i think it will be very interesting now. and i think that again this is all speculation but this came the week after there was so much criticism of the courts order in the texas abortion case and i think it was a response to some of that criticism and they are like okay you want us to act quickly, we will act quickly. >> one of the others that is unusual they think the other interesting phenomenon is like the shadow docket is very active but the court now has i think you could say for more. it's just a weird push and pull dynamic and maybe that means they are flexible when there's particular issues on the so-called shadow docket. >> it's called the so-called shadow docket. [laughter] that's the official name now. >> but it will be interesting to see when the u.s. versus texas, the u.s. litigation over the texas abortion law or the inevitable litigation over the vaccine mandate comes back to the supreme court on the so-called shadow docket. do they then order in oral document. >> i find it fascinating and difficult. i can understand the technical objection to who but at the end of the day if the answer is subcontracting state actions, there's got to be a legal theory that says that's not kosher. that strikes me as absolutely. it's for the state enforcers but i don't know that our state law is there yet or how to get it there without throwing at everything but it's inconceivable to me that this model of state law enforcement can get a pass until somebodyat litigates it through. imagine the first amendment law like this, the chill on the exercise of constitutional rights, shocking. >> in the campaign finance situations do you have any comments on this? >> the comment made at lunch like it's a third party now. >> there is a push and pull what exactly the barrier is i think it was probably absent for the majority sometimes that just means the novelty may be your best friend that being said it would be nice on a going forward basis to come up with a theory on how to deal with this. i'm not saying i think they made the right call in this case. it would be dealt with thoughtfully so you don't get caught in that s blind again. it's a very broad question. the last two years have painted a different landscape of what's going forward and now it's being altered in the situation. it's very different now. >> it is may be the best example that's been around the block like 17 million times and it will probably come around again because every way and is so narrow and it always goes to the supreme court and feels like there's nationwide injunctions on both sides and it keeps coming up and kicking the can down the road with either proceduralre rulings and each administration is the remaining. you didn't explain this well enough. and so i think some people looking at this say what goes around comes around to different administrations but if you look at it in terms of the development, it is a very weird and novel situation in which it kind of feels like no administration can be resolved and it's just litigation for a decade solid and it's a strange state of affairs because they do not do as much as they use to used tothat means that administe agencies on both sides in both senses of the administration they tried to pick up the slack and it's not always the greatest thing to have the administrative agencies trying to take the place of congress but then it's just reallyre weird. i just think the law should be determined by judges not administrators but i think the problem switching the administration once you have chevron then youem are subject d how they want to work withrp ambiguity. so i find it difficult and troubling than to constantly fight about this for ten years until another administration comes in and reinterprets it or says we interpret that to mean exactly the opposite of what the last administration if you really want them to flip-flop like that based on the current executive, that is an awful way of running the country and litigation. it changes their mind and decides we do even though the last department said don't. when the speaker keeps changing their viewsnt this is a case of coming up in the abortion context where. who do you get to speak for a government. it's a bigger question. metaphysically rich if you think about it. he tried to bring it to the court as an abortion case and the court was like we are not getting into the abortion part of it but this is an interesting question. one thing about the remaining policy when the biden administration came to the court on the remaining case and was basically the same week that were defending on the moratorium and the biden administration's request and the remain in mexico case hand this at the end that said basically to the supreme court remember all of those times that the administration came to you because the district court was trying to dictate the policy and foreign relations and you said no, district courts can't do that, okay this is what is going on here at the court. this isn't the same thing. it is by then the shadow docket to the f merits case so i would haveav to guess as opposed to te foreign relations aspect. for people online if you are watching we will be looking for questions. you mentioned and i wanted to give you the chance to talk about a petition that you have the coming petitions to watch a little bit is like overruling things.he it's opportunities if they want this to rule the decisions. we will see what the government does say. it's not the same as the administration but we will see. we are not holding our breath on that one. there are those asking the court tory overrule the decision that said about a half of oklahoma should be in fact disputes of the criminal law but the indian reservation there are various petitions always about whether to overrule the qualified immunity and thenul i have a position that raises questions about whether the court should cut back or overrule about the implied rates of action against federal agents. the court has skepticism about whether or not it is a thing and questions about whether to extend two different contests. it's an interesting position because i think that there's various folks who think that from a political standpoint think that accountability for the office is the bottom line that they want to pursue and then there's also the school of thought that says both are doctrines that have been s questioned as lacking some sot of basis in the constitution or framework and if the court were to cut back on one it might make it easier to cut back on the other because they sort of balance each other out on this. >> i commend to you the article that he argued last year were there any petitions were things that you want to ask? that raises some issues about the applications in the dual use which i think is a mess. there's a lot of statutes that create crimes that apparently were given deference to the agencies. so that bugs me to no end. i think that there is the follow follow-on petition that keeps popping up about whether keller should be overruled. >> i asked whether they are given the opportunity to recover their money. >> thursday in mid-august. >> there's some procedural stuff that is interesting but i like the overrule part. and then i think that there is a petition coming up soon on the commerce clause. this statute in california. it's like a follow-on. i'm not a fan but i think that it does a lot of work that should be done by other provisions. it does real work it is just the wrong theory so what do you do about that when the mistake happens 150 years ago and this is a made-up area that is growing up to fix that mistake. it's a fascinating dilemma and to get to tell the whole country on the threat of shutting down their borders to import and export that you've got to do it way. i'm not a fan of that. >> i met another fan of the import export clause. i didn't know we had that in common. okay. i'me going to see -- unless thee is anything else that you want to add. >> having left in affect there's a couple of cases that are asking the court to either clarifyy or reconsider. this one by a haitian that wanted a hysterectomy at a catholic hospital. there were a lot of sort of procedural c issues that the respondent said should keep the court from taking up the case because it came out of the state court but this is a case that was on hold but they didn't send it back to the lower court for the seattle union versus woods involvespl a legal clinic run by an evangelical christian organization of the mission told somebody applied for f a job at the legal clinic. the question is whether or not it protects the missions rights to hire peoplen who share its religious teachings so this is similar to what the court took up a couple of years ago and represented by francisco you probably heard of him which i think is on the conference and this is similar to the birth-control mandate. it's a new york regulation that requires employers to fund medically necessary abortions through their employee health plans. it has an exemption for the religious employers, but not for religious organizations like catholic charities. >> that is pretty crazy. >> okay. questions. on the outside back in the blue shirt. isn't the issue about how it would be raised in the texas abortion case shelley against kramer? they would have to enforce the penalty and state action if they import the law. >> it's whether we allow it to happen before that. we have a lot of challenges to criminal law, first amendment related law. we don't understand it happens ahead of any litigationen if you can violate someone's rights by killing them then we need is a thetheory that deals with that. >> back in theif blue shirt a couple of rows. >> i am a local attorney. i have read the briefs for both sides on the case and it seems to me each side has a glaring weakness. the weakness of the brief is that it comes off as a bait and switch. they got to the courtrt to accept and review the rule and then very little in the brief addresses that and they make no principled argument as to why 15 weeks should be okay but 16, not or whether some other rule should be adopted. the weakness i found is that it makes no real attempt to justify as an original matter and by that, i mean, the essential holding. i'm wondering if anybody on the panel has a similar assessment. >> first i wouldn't say that casey reaffirmed a row. wouldn't you agree with that? >> that is a big part of the argument. like we don't have to explain it or rationalize it because it was reaffirmed. to go to the second point, i think it is going to be interesting to see whether or not that comes up in the oral argument. you said we don't need to consider roe v wade and casey. casey replaces the framework of the opinion. maybe this is part of the answer. >> i felt i had the opposite reaction. i thought that they were very well done but also in terms of making tactical moves. i think that mississippi's brief captures where several judges start off with the framework and if you think about how to defend the 15 week law the brief in some ways is very honest about whatto they think the options ae and it's also very technically effective because it is decisive. don't make it over complicated wet, are not even going to engae in these sort of same premises. so you get this situation of the briefs that are in the same way two ships passing in the night and i also think the future of the cases is the court knows the issue very well. setting forth the factual issues as advocacy to sort of anchor the parties positions but i think in some ways because of the jurisprudence it is that the court often reaches compromises and struggles to figure out how to reframe its standards and that is sort of what the court will do. it isn't clear to me even though both sides have exceptionally good advocates, how much advocacy would even matter. a. >> i would lean more in that direction that at the end of the day i wouldn't engage beyond. there is no value to say let's reconsider from scratch. that just sort of invites them to do it as opposed to saying no we are not going to fight about that. this is just about e what row means. but we are not fighting about if it should be flipped. i feel like the best they can get is to say think about it more. i'm not sure they get the win as they are playing for the concurrences and on future cases to understand how it is challenged. >> we have frank garrison asking by youtube the extent any panelists are familiar with the case and what effect if any do you see the american hospital association's having on the cases granted for the next term. >> we were talking about this earlier. >> thank you from the legal associate. >> it comes to the court from the dc circuit. it is about a reimbursement policy calculation that is complicated to explain to figure out how to talk about it in substantive terms. and there's a question about the difference in the case where if you read the papers it seems from the description it may not be soo much is the dc circuit simply to misinterpret the statute kind of question so it is an interesting grant and an important case for the reimbursement purposes but it's also one that i wonder if the court had buyer's remorse. let's put more guardrails. they canbe say various things without having to overrule it. >> i feel like it seems nonexistent. but it's sort of red meat for the court and waved the flag but they are going to use it as an occasion to say something that will influence some of the pieces that they might not want to take for other reasons. every time i tried to count how many there are to overturn it a lot of that you change after the case because i thought that our wass dead i'm not sure there's more than three over ruling out right. >> there's a couple of instances you could imagine chevron applies where the court says you should do xyz if the truck is over 20 pounds and you would be interested to find what kind of scale. i would give you that. >> i'm anti-delegation but i agree to ratchet it down no criminal applications or doctrine they treat it as a dirty word. you don't see people arguing the supreme court so much in the last 20 years. >> over on this side. >> thank you very much. i'm a little surprised i remember back in the early 80s when the court said women were not eligible to be registered for the draft because the combat arms relied on the draft and women were not eligible. after 2015, the rules changed and i think one of the appellate courts made reference and refused to say anything because the appellate court said the whole thing is moot because the whole reason they gave no longer applies. do you envision them taking that up?he i think they said something about the congressional issue which i find a little strange for the supreme court to say. do you agree with this at all? that is the sort of thing we will let them work them out. >> it was very well done but it wass denied. the court basically said not right now. it's not our place. >> i think people don't get about the supreme court they don't fix every problem that rules through the doors. that's not their job. that's not what their jurisdiction has them do and it would be terrible to take the first case that pops up just because somebody asks. they are not on demand. the fact they said they are never going to take it just means they are waiting to see if the problem sorts itself out because the resources of the court are valuable and limited. they shouldn't be the one making these calls. we are so concerned about the activist judges. sam, online question. >> this isab from john, specifically to eric but i suppose anyone else on the panel could answer. do you think the court will take the turn or wait for the issue to percolate through the circuits? >> i would say the odds are not in favor for those of you that are not like me and my clients -- [laughter] a bump stock is a stock that you can put on a rifle that lets it recoil just a touch, maybe an inch or so and use this technique you pull the trigger and it resets and then if you push things forward again it lets you go back and forth by having the recoil assist with the release. they said this is now a device that makes the machine gun. they have a challenge in the tenth circuit. there is a challenge in the fifth circuit and sixth. i think there was a military court of appeals ruling in the criminal case, so there's a bunch of cases like this that get the first off after this was past the supreme court denied saying it's a little early, but just may be the courts below will fix that and gets that right. the cases have been kicking around since then. it's on the preliminary injunction it remains to be seen after a number of rulings even on the preliminary context it is still reluctant. they might want to wait for the case in the circuit before the dc circuit. if i had to bet they have enough drama. over ruling to allow machine guns sounds like more than they may be able to assess at this moment. >> they've been decided on the serious that the government cannot wait. we don't want chevron and they sort of shove them down their throat anyway. absurd in so many ways. the court accepted and said why are you making me rule on chevron when they don't want to do it. >> over here. >> competitiveve enterprise institute. i don't understand the justification for why they are not listed on the docket for how they voted. understanding the opinions where there's multiple authors or something but why don't we know who voted in favor and who voted against certain things in the docket? i don't see any justification. >> excellent question. >> may be they feel they are telegraphing something they don't want to. that is the best i can predict. >> at some point they are nonbinding decisions. sometimes attributing them locks you in in a way that you don't think you should be locked in. a. >> like can i have more time to file. it can be things that are incredibly mundane and to one justice to sort of assign more merit to some orders over others like this is important enough that we are going to put everybody's name on it but this one isn't. it may also be something that factors into it. >> the interesting thing is the more transparent the court has been the more it seems to be criticized which may be the wrong incentive for them. i don't know. but the court is so much more transparen' after all these years in terms of both audio and online opinions and even access to the emergencies of the applications. there is a push and pull that is difficult to navigate like the more they try to give to be transparent the more they say that it's illegitimate and -- >> maybe this gets to the supreme court proposal but one of the interesting things going on and justice breyer going out and saying don't rush into this it tends to make its own decisions and i think most the justices have that perspective because they know how it operates internally and it is hard to convey. >> i think the other thing is there's always opportunities on any of these so if somebody feels strongly people want to be heldld accountable like the deliberative process privilege. there is some value to that. t.thank you. i am a retired diplomat with a specialty in economics and i should emphasize that i am not a lawyer. at lunch a number of us were talking about the mississippi case and abortion in general and everyone except for me was of the belief that there was a good chance that the court would go and decide in favor. i was of the opinion the court would either e rule against roev wade or uphold it. could you please comment on the differences of opinions and who you think is more likely to be correct? >> roi think that with the state having struck down the law as unconstitutional i don't think the court after 15 weeks of considering the case at conference took the case so that it could then say you are right the law is unconstitutional. ali think some form is going to survive and what the court is going to say, are they going to overrule roe v wade for a compromise where they get. rid f the viability and we go back to a standard that looks at whether it is anat undue burden. that i don't know but i would be surprised if there are five votes to say you are right in thelaw is unconstitutional. .. >> and to make it more expensive and dangerous and increases corruption in the increases cynicism about the law am i breaking. so why is there ambivalence about abortion? of the prohibition of murder statutes that didn't exist to drive murder underground. we went to require families. >> . >> if you believe it is murder then to care about the effects of prohibition. >> i'm saying you would not require relatives to keep the bodies of their relatives allies. >> we did four years for brain death. >> you did make a consistent with libertarianism. >> i was a libertarian in thisre context i am a lawyer. >> but it also has allocation of power and delegation political branch your argument is to the legislature i understand that. >> that's why said it is philosophical. >> but the biggest philosophical issue is who gets to decide? is not if you think they have the right answer because if you don't conceive the right of legislatures to make the wrong answer then this whole exercise a is silly. >> that is why they are conflicted. >> we have time for one quick question. >> please join me to think the panel. [applause] please stick around

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