Rikelman tells Gorsuch, with a specific nod to Roberts, that a standard other than the current one would not work. That is a maximalist position that gives any on-the-fence Justices no room but to embrace or overturn Roe. Now she is digging in, at Alito's invitation, on “no half measures.” This seems to me like terrible strategy for where she needs to end up.
Alito: I read your briefs to say that there is no middle ground.
R: Supposed halfway measures would overrule Roe and Casey.
Someone needs to ask Rikelman how to defend the viability line when viability has shifted so dramatically since Roe.
Justice Alito to Rikelman: It's all or nothing with Roe and Casey, correct?
Gorsuch seems to be showing that there is no middle ground.
Gorsuch asks R to respond to critique of Casey's stare decisis discussion.
Rikelman: Undue-burden test is not at issue in this case. Only viability line is at issue. It's workable. A “reasonable possibility” line (suggested by Chief) would not be workable.
Gorsuch: So you agree that applying undue-burden standard to MS law would not be workable, right?
R: No.
Barrett, talking about adoption, asks if the argument is really about bearing children, not on the idea that motherhood limits the mother in her life and career. The subtext, of course, is that a mother of seven – two of them adopted – is sitting on the Supreme Court.
Notable that Justice Barrett–a mother of adopted children–asks Rikelman about safe haven laws.
ACB: Isn't “burden of parenting” much reduced by universal safe-haven laws (which allow women to give up babies)?
R: They don't matter. Adoption was available when Roe was decided.
Easily lost in all this argument is that “viability” is a fake limit to the abortion right of Roe. The Court has said that post-viability bans have to include an exception for health broadly construed to include emotional health. There's a reason successful prosecutions for late-term abortions almost never happen, even though there are thousands of them each year in states that have nominal bans on them on the books.