Kavanaugh pointing to many precedents the Court has overturned in past landmark decisions (citing Brown vs. Board, Obergefell, Gideon v. Wainwright among others). Rikelman responds that being wrong is not the only relevant factor in overturning a prior precedent, and that in this case Mississippi is not making any “special justification” for overturning Roe.
US Solicitor General Prelogar is now up (for 10 minutes, I think).
Barrett: “I don't understand why 27 weeks is less workable than 24.” Asks why “as a matter of first principles” the line is drawn in one particular place. Gets Rikelman to be frank about the fact that the Court has to choose to draw a line somewhere.
Barrett following up on Chief's questions on viability line. What's basis for it? Why not somewhere else? E.g., 27 weeks?
R: Question is whether another line is *obviously* more principled. [Relying on stare decisis.]
Kavanaugh: “If the Court had [adhered to precedent] in those cases, the country would be a different place.” Asks why the Court should not “return to the position of neutrality” of the Constitution on abortion if the Court thinks Roe was wrong. Rikelman tries to shift the burden to suggest that Casey bars the Court from reconsidering the precedent again.
Kavanaugh continues to pound on the point that the Constitution neither mandates the availability of abortion nor prohibits the states from permitting it liberally. Since the Constitution is neutral, isn't the Court's obligation to be rigorously neutral — stay out of it and let democracy in the states work it out.
Kavanaugh on stare decisis: String of most important cases have overruled precedent. (Runs through list from his separate opinion in Ramos.) Why doesn't this history tell us that we should be very open to overruling wrong precedents?
R: Error isn't enough. Special justification is needed.
Rikelman’s argument is undergirded by the implication that women can’t decide whether to be pregnant without the right to abortion, which is, of course, false.
Kavanaugh going on and on listing major overrulings “and I could go on.”
Rikelman is going all-in on a false account of the history of abortion law. See https://www.nationalreview.com/magazine/2021/11/29/the-corruption-of-history/