“There's so much that's not in the Constitution” that the Court has decided, says Sotomayor. She's so close to getting it!
Arrggghhh. Lost audio.
Sotomayor comparing fetal pain with involuntary spasms in brain dead patients.
Sotomayor is now talking about dead people's feet still moving. Metaphor overload.
Chief might be pushing to say that what Casey called “central holding” of Roe has just been dicta all along.
Roberts references Blackmun's private papers, which he concedes is an “unfortunate” source, but any time you look behind the curtain of Harry Blackmun's decisionmaking, you're on bad ground for defenders of the sanctity of Roe.
Chief: Was viability an issue in Roe?
Stewart: No.
Chief: Blackmun himself called viability line dicta.
Sotomayor walks into a trap by asking Stewart what has changed in science and medicine since 1973. That is very bad ground. Now she is going on about Daubert (an area in which her decisions in the past have been laughably misguided).
The stronger ground for defending Roe is that, once the Court makes a decision based on science, it can never consider new science.
Sotomayor suggests that fetal pain is “not founded in science at all” and claims that only a tiny fringe of doctors believe in fetal pain. This is simply not true. See my previous coverage of the science: https://www.nationalreview.com/corner/reconsidering-fetal-pain/
Sotomayor wants to apply Daubert to the science used in Roe – what?