Prelogar just responded to Thomas’s hypothetical about a pregnant mother who took cocaine by saying that the state was seeking to litigate on behalf of “a child while it was inside the womb.” I guess sometimes the entity in the womb is in fact a child?
Gorsuch: If we reject viability, is there any other line?
SG: No line is more principled than viability. [NG can take that as a no.]
SG's answer to Thomas – about his hypothetical case involving prosecuting a pregnant woman for taking dangerous drugs – suggests that the state's interest in protecting the health of the unborn child turns on whether the child survives to be born.
CJ Roberts refers to John Hart Ely's great evisceration of Roe. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6179&context=ylj Ely was a liberal who supported abortion rights, incidentally.
It is worth considering the ridiculousness of Sotomayor's argument that abortion must be a right because not everybody can afford contraceptives. One, everybody can afford not having sex. But two, and more broadly, there are all sorts of things people can't afford that have effects on their lives. We have a political system to balance those interests. You have a right to bear arms and you might die if you don't have a gun handy to defend yourself, but nobody thinks there must be a constitutional right to afford a gun.
Chief to SG: Does reliance interest apply to viability line as well? You must concede it would be much weaker with 15-week line?
SG: Viability line is clear. MS isn't asking for 15-week line.
Chief: But 15 week ban is what's before us.
SG: Contraceptive failure rate is around 10%. So contraceptives don't make need for abortion “dissipate.”
We've said it a million times, but it is still worth emphasizing: No one credible on the pro-abortion side will try to defend Roe as constitutional law. The fascinating exchange between Justice Alito and SG Preloger proceeds from the premise that Roe is indefensible, and the question is whether it is appropriate, on stare decisis grounds, to uphold an egregiously wrong decision (e.g., Plessy v. Ferguson) even if history has not yet illustrated how egregiously wrong they are.
Reliance interests traditionally mean that institutions – contracts, property, government, bodies of law – build up around a decision. An honest reliance argument here would be that the abortion clinic industry has been built in reliance on the Roe line of cases. But that is too awful an argument to say out loud, so instead Prelogar and other Roe advocates talk about women relying on the ability to get abortions – but that is not really the kind of long-term, built-up structure that reliance really means.
As Alito noted, segregation was a way more dug-in reliance interest, and the Court tore it up (granted, Brown considered that structure in its discussion of remedies, in a way that remains controversial).
Kavanaugh-Alito have obliterated the stare decisis argument while Thomas has exposed the weak Constitutional basis for the “right” to abortion.