Breyer returns to endorsement of Casey's stare decisis blather.
Roberts taking Scalia's line in Casey – that the Court was saying that the more unpopular a decision is, the harder the Court should stick to it – is another sign that Roberts is uncomfortable with handing down another Casey.
Chief says Casey overrode much of Roe and that case itself had nothing to do with viability.
R: Undue-burden test incorporates viability line.
Chief: I found Breyer's comments on stare decisis quite compelling. [I wouldn't read much into this.] But how does Casey make sense in saying the more unpopular a decision is, the greater the stare decisis weight?
Rikelman defends the viability standard by asserting that the Court had to set a line between conception and birth and adding that “logically” it chose the moment of viability. She didn’t bother explaining what exactly was so logical about it.
Rikelman: Court had to set a line between conception and birth. [Why?]
If you assume that Alito wants to overrule Roe and Casey and is asking these questions in order to persuade his colleagues – a fair assumption – this is a fantastic line of questioning.
Rikelman is unable to defend the viability line because there’s no principle behind it. Which is why, of course, the Court gave a backdoor out of that standard by requiring broad “maternal health” exceptions to abortion regulations even after viability.
Alito: What's best defense of viability line (apart from stare decisis)?
R: Viability is a principled line. [But doesn't explain how.]
Both sides basically agree: Junk Roe/Casey or kill the Mississippi law.