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We will hear argument this morning in Case 19-1392, Dobbs versus Jackson Women's Health Organization. General Stewart.

Mr. Chief Justice, and may it please the Court: Roe versus Wade and Planned Parenthood versus Casey haunt our country.

They have no basis in the Constitution.

They have no home in our history or traditions.

They've damaged the democratic process.

They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve.

And 50 years on, they stand alone.

Nowhere else does this Court recognize a right to end a human life. Consider this case: The Mississippi law here prohibits abortions after 15 weeks. The law includes robust exceptions for a woman's life and health.

It leaves months to obtain an abortion.

Yet, the courts below struck the law down.

It didn't matter that the law apply -- that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional no matter what. Roe and Casey's core holding, according to those courts, is that the people can protect an unborn girl's life when she just barely can survive outside the womb but not any earlier when she needs a little more help.

That is the world under Roe and Casey. That is not the world the Constitution promises.

The Constitution places its trust in the people.

On hard issue after hard issue, the people make this country work.

Abortion is a hard issue.

It demands the best from all of us, not a judgment by just a few of us.

When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed.

This Court should overrule Roe and Casey and uphold the state's law. I welcome the Court's questions.

General Stewart, you focus on the right to abortion, but our jurisprudence seems to -- seem to focus on, in Casey, autonomy; in Roe, privacy.

Does it make a difference that we focus on privacy or autonomy or more specifically on abortion?

I think whichever one of those you're focusing on, Your Honor, particularly if you're focusing on -- on the right to abortion, each of those starts to become a step removed for what's provided in the Constitution.

Yes, the Constitution does provide certain -- protect certain aspects of privacy, of autonomy, and the like.

But, as this Court said in Glucksberg, going directly from general concepts of autonomy, of privacy, of bodily integrity, to -- to a right is not how we traditionally, this Court traditionally, does due process analysis. So I think it just confirms, whichever one of those you look at, Your Honor, a right to abortion is -- is not grounded in the text, and it's grounded on abstract concepts that this Court has rejected in -- in other contexts as supplying a substantive right.

You say that this is the only constitutional right that involves the taking of a life.

What difference does that make in your analysis?

Sure, Your Honor.

I -- I -- I think it -- it makes a -- a number of differences.

One, I -- I'd mention two in particular. One is it -- it really does mark out the unbelievably profound ramifications of this area, which, in many other areas, assisted suicide, a whole host of important areas that are important to dignity, autonomy, freedom, and important to matters of conscience, it -- it marks it out as one of the unique areas where this Court has taken that important issue to the people, and it's -- it's something that implicates life, and it just, I think, marks off, Justice Thomas, how problematic and unusual and how much of a break the Court's abortion jurisprudence is from those other cases.

If we don't overrule Casey or Roe, do you have a standard that you propose other than the viability standard?

It would be, Your Honor, a clarified version of the undue burden standard.

I -- I -- I would -- I would emphasize, I -- I think, as Your Honor is alluding to, that no standard other than the rational basis review that applies to all laws will promote an administrable, workable, practicable, consistent jurisprudence that put -- puts matters back with the people.

I think anything heightened here is going to be problematic. But I would say, if the Court were not inclined to -- to overrule Casey, the -- the choice would be undue burden standard, untethered from any bright-line viability rule.

Thank you.

Well, I'd -- I'd like to go to a different topic, back to Casey.

Yes, Your Honor.

I assume you've read Casey pretty thoroughly.

Yes, Your Honor.

And there are two parts.

One is they reaffirm Roe.

Put that to the side.

The second is an opinion for the Court, not for three people but for the Court, and that second part is about what stare decisis principles should be used to overrule a case like Roe. And they say Roe is special.

What's special about it? They say it's rare.

They call it a watershed.

Why? Because the country is divided.

Because feelings run high.

And yet the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women's choice.

All right.

That's what makes it rare. That's not what I'm asking about.

I want your reaction to what they said follows from that.

What the Court said follows from that is that it should be more unwilling to overrule a prior case, far more unwilling we should be, whether that case is right or wrong, than the ordinary case. And why? Well, they have a lot of words there, but I'll give you about 10 or 20. There will be "inevitable efforts to overturn it." Of course, there will.

Feelings run high. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure. "Only the most convincing justification can show that a later decision overruling," if that's what we did, "was anything but a surrender to political pressures or new members." And that is an unjustified repudiation of principles on which the Court stakes its authority. And then there are two sentences I'd like to read because they say they really mean this, the -- the Court, not just three: "To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question." And the last sentence, after they quote Potter Stewart on the same point, they say: "Overruling unnecessarily and under pressure" would lead to "condemnation," "the Court's loss of confidence in the judiciary," the ability of the Court "to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law." Now that's the opinion of the Court, all right? And it's about stare decisis and how we approach it, and I hope everybody reads this. It's at 505 U.S. 854 to 869. All right.

What do you say to that?

Sure, Your -- sure Justice Breyer.

I -- I would say a couple things.

I would say we have very closely gone through the factors that the Casey court itself went through in stare decisis.

More than half of our brief is devoted to stare decisis.

We now have 30 years in the wake of Casey to see what Casey has done and what it hasn't done.

Well, it's caused some bad things and -- in the eyes of some people and some good things in the eyes of some people.

Okay?

Your Honor --

All right.

All right.

Go ahead.

You --

I'm -- I'm sorry, Your Honor.

What I'd emphasize, Your Honor, is that to the extent that -- that the -- I would not say it was the people that -- that called this Court to end the controversy.

The people -- you know, many, many people vocally really just wanted to have the matter returned to them so that they could decide it -- decide it locally, deal with it the way they thought best and at least have a fighting chance to have their view prevail, which was not given to them under Roe and then, as a result, under Casey. And -- and I'd also emphasize, Your Honor, that on -- on stare decisis, just -- as I said, the last 30 years, workability, developments in the law, factual developments that states can't account for.

I think the workability, the undue burden standard alone, many problems. On all the metrics that Casey was describing or the vast bulk of them, Casey fails.

And I'd also emphasize this as well, Justice Breyer, that Casey was not -- was -- was not a -- a great example of simply letting precedents stand.

It -- it recast Roe's reasoning.

It overruled two of the Court's most important abortion decisions.

It jettisoned the trimester framework of Roe itself and adopted a new standard unknown to other parts of the law. Those are not the hallmarks of precedent, and they failed under this Court's stare decisis factors.

Okay.

Can I take it that your answer is, yes, you accept the way the special rule, the rule for the rare watershed, the stare decisis principles for deciding whether to overturn such a case as Roe, you accept that and you think it's met?

I would --

Is that right?

-- I would say yes in part, Your -- Justice Breyer, and here's what I'd emphasize, is that I -- I do think, particularly when Casey looked outward and looked to what it see -- saw as pressure, there were pressure on all sides.

As -- as Your Honor noted, this is a hot, difficult issue for everyone.

It's -- that's why it belongs to the people. And I think the conclusion the Court drew from that, that it couldn't provide a -- a good enough example, that it would look on principle, those conclusions were, with respect, Justice Breyer, mistaken, and the -- the last 30 years has -- has not seen any calming of that. It's been very different than some of the others -- the Court's other controversial decisions that -- that have seen --

Counsel --

-- much more calm --

-- what hasn't been at issue in the last 30 years is the line that Casey drew of viability.

There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for -- since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years have -- or I should say 30 since Casey have reaffirmed that basic viability line.

Four have said no, two of them members of this Court.

But 15 justices have said yes, of varying political backgrounds. Now the sponsors of this bill, the House bill, in Mississippi, said we're doing it because we have new justices.

The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsors said we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

I --

I -- I -- I don't see how it is possible.

It's what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education it mentioned, and this one have such an entrenched set of expectations in our society that this is what the Court decided, this is what we will follow, that the -- that we won't be able to survive if people believe that everything, including New York versus Sullivan -- I could name any other set of rights, including the Second Amendment, by the way.

There are many political people who believe the Court erred in seeing this as a personal right as -- as opposed to a militia right.

If people actually believe that it's all political, how will we survive? How will the Court survive?

Justice Sotomayor, I -- I think the concern about appearing political makes it absolutely imperative that the Court reach a decision well-grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we've laid out.

Casey did that.

No, it didn't, Your Honor, respectfully.

Casey went through every one of them.

You think it did it wrong. That's your belief.

But Casey did that.

Well, Your --

And you haven't added --

Sorry, Your Honor.

-- much to the discussion in your papers as to the errors that Casey made, other than "I disagree with Casey."

Well, Justice Sotomayor, maybe I can -- I can highlight two. Casey gave one paragraph to the workability of Roe.

It then adopted the undue burden standard, which is perhaps the most unworkable standard in American law.

It gave about three paragraphs, if memory serves, to reliance, which doesn't account for the last 30 years and the changes that have occurred since Casey.

It did -- it -- it gave a brief factual view to things that have changed since Roe. Those, of course, are not going to take account of the last 30 years of advancements in medicine, science, all of those things.

What are the --

What is --

-- advancements in medicine?

I think it's an advancement in -- in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like and is fully human from a very early --

You know --

I'm sorry.

-- in -- in regular cases, courts decide whether science fits the Daubert standard.

Obviously, the -- under the Daubert standard, the minority of people, a -- a gross minority of doctors who believe fetal pain exists before 24, 25 weeks -- it's a huge minority and one not well founded in science at all.

So I don't see how that really adds anything to the discussion.

Well --

That a small fringe of doctors believe that pain could be experienced between -- before a cortex is formed --

Well, I --

-- doesn't mean that there's been that much of a difference since Casey.

We -- we pointed out as an example, Your Honor, of where Roe and Casey improperly preclude states from taking account for these things.

And they should be able to be concerned about the -- about a fact of a -- a -- an unborn life being poked and then recoiling in the way one of us would recoil.

Sir, I -- I don't --

General, does -- was -- I know what it said about viability in Roe.

But was viability an issue in the case? I know it wasn't briefed or argued.

It -- it was -- it was not issue -- an issue certainly the way it is an issue here, Your Honor.

I think it was -- to the extent that the Court had to over -- had to reaffirm Roe, the way to read that as something other than dicta would be to under --

I'm -- I'm sorry, I don't know whether that's at -- I said, was it an issue in Roe?

Oh, in Roe?

Yeah.

I'm sorry, Your Honor. My understanding is no.

The law there was -- didn't have a viability tag.

That was inserted by --

In fact, if I remember correctly, and I -- it's an unfortunate source, but it's there -- in his papers, Justice Blackmun said that the viability line was -- actually was dicta.

And, presumably, he had some insight on the question.

I -- I think -- and I'd -- I'd add, Your Honor, Justice Blackmun in -- in, I think, as well his papers pointed out the arbitrary nature of it and -- and the line-drawing problems --

And then --

-- in there too.

-- and then, in Casey, Casey said that that was the core principle or central principle in Roe, viability.

It said that after tossing out the trimester formula, which many people thought was the core -- core principle.

But was viability at issue in Casey?