Thursday, December 30, 2021

Happy New Year!

 I hope everyone has a healthy and safe new year's weekend.  Here are some of the things I'm wishing for in 2022:

1.  Judges who are flexible with schedules since COVID has messed everything up.

2.  Prosecutors who are open to self-surrender even when a defendant is not cooperating.

3.  Early exhibit lists.

4.  Early Jencks.

5. Searchable discovery.

6.  Appellate judges who find errors not always harmless.

7. Defense lawyers who represent cooperators not saying "you know I can't let him speak to you."

8. Variances.  Big ones.

9.  Judges willing to dismiss B.S. cases and not "letting the jury decide."

10. Less stress.

A guy can hope.  Anyway, thanks for your tips, your comments, and for reading.  Onward!

Monday, December 27, 2021

"The Constitutional Right We Have Bargained Away"

That's the title of this piece by Carrisa Byrne Hessick. Read the whole thing. It starts like this:

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”

The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.

The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in jail for insisting on his right to a jury trial.

If government actors tried to put people in jail because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.

Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in jail for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources.

Thursday, December 23, 2021

Another Christmas miracle...

 This time it's the White House filling a judicial vacancy in the 11th Circuit.  Well, it's only a nomination, but still.  Here's the scoop:

Nancy Gbana Abudu: Nominee for the United States Court of Appeals for the Eleventh Circuit

Nancy Gbana Abudu is the Deputy Legal Director and Interim Director for Strategic Litigation at the Southern Poverty Law Center, where she has worked since 2019. Abudu was previously the Legal Director for the American Civil Liberties Union of Florida from 2013 to 2019 and a staff attorney at the American Civil Liberties Union Voting Rights Project from 2005 to 2013. Ms. Abudu served as a staff attorney for the United States Court of Appeals for the Eleventh Circuit from 2002 to 2004. She was an associate at Skadden, Arps, Slate, Meagher & Flom LLP from 1999 to 2001. Ms. Abudu received her J.D. from Tulane University School of Law in 1999 and her B.A. from Columbia University in 1996.

If confirmed, she will be the first Black woman on the 11th Circuit.

A Festivus for the rest of us.

 Enjoy.  And see you next year! 

Wednesday, December 22, 2021

Happy Holidays from Merrick Garland

Better late than never!  Just in time for the holidays, AG Merrick Garland said that DOJ would reverse course and allow many prisoners who were released to home confinement during the pandemic stay on home confinement and not have to go back to prison.  From The Hill:

Attorney General Merrick Garland announced on Tuesday that the Department of Justice would allow some prisoners who were released to home confinement during the pandemic to stay out of prison, reversing a legal stance adopted in the last days of the Trump administration.
"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”
Garland cited a memo from the DOJ's Office of Legal Counsel (OLC) released on Tuesday that found that the relief bill enacted in the early days of the pandemic known as the CARES Act authorizes the department to use its discretion in allowing those on home confinement to stay out of prison.
The new memo overrides the legal position that had been in effect since January, which was that the thousands of inmates on home confinement must be returned to prison once the pandemic was declared over.
The Biden administration had been facing pressure for months to reverse the position and avoid re-incarcerating people who had spent months reconnecting with their families and integrating back into their communities. Some criminal justice reform advocates had called on President Biden to use his clemency powers to avoid a mass influx of returning prisoners.

Kevin Ring, the president of Families Against Mandatory Minimums, applauded the DOJ's reversal on Tuesday.


Tuesday, December 21, 2021

For the Defense, Season 4 Premiere with Bruce Rogow for 2 Live Crew



We're back! Season 4 of For the Defense launches today.  For the Defense is a podcast I started with Rakontur two years ago with the idea of getting in depth about the most fascinating trials with great trial lawyers. This season starts with Bruce Rogow, who will be discussing the 2 Live Crew trial.  (Episode on Apple here). Season 4 will continue with new episodes every other Tuesday featuring the following guests:  

  • Mark Geragos (Susan McDougal)
  • Juanita Brooks (John DeLorean)
  • Gerry Goldstein (Deep Throat)
  • Geoffrey Fieger (Dr. Jack Kevorkian)
  • Brian Heberlig (Ali Sadr)
  • Ed Shohat (Carlos Ledher)
  • John Gleeson (Holloway Project)
As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website
Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.

Sunday, December 19, 2021

Linda Lopez (S.D. Cal.) confirmed

A big congrats to Miami native Linda Lopez for her confirmation as a U.S. District Judge in the Southern District of California. The vote was 48-25.  Judge Lopez started her career as a paralegal here in Miami and then became a criminal defense lawyer.  She moved to San Diego to work at the Federal Defender's Office.  She then became a magistrate judge, where folks on both sides of the aisle enjoyed appearing before her.  And now she's a district judge.  What a cool story. 

Friday, December 17, 2021

Happy Holidays!

 So sorry for the slow blogging this week.  I was in trial with Margot Moss and Todd Yoder before Judge Jose Martinez.  The charge: illegal dredging under the Rivers & Harbors Act of 1899.  We got a two-word verdict to start the holiday season!  There is still nothing better.  I'll be back next week with regular posts.

Tuesday, December 14, 2021

Help Wanted

By Michael Caruso 

Federal courts regularly appoint receivers upon request by the Securities Exchange Commission, Federal Trade Commission, United States Department of Justice, and other interested parties to assist in resolving complex problems. The receiver’s role may involve marshaling, maintaining, managing, and safeguarding the assets of the receivership estate. The goal is often a subsequent distribution of these assets under the court’s supervision.


There has been a particular lack of diversity in federal equity receiverships across the country. Adding to the problem is the fact that receiverships do not happen as frequently as other cases, meaning there are fewer opportunities to be appointed and gain experience.

As a small step to address this issue, our local federal Diversity and Inclusion Practitioner’s Committee is hosting a panel discussion “Demystifying Receiverships in the Southern District of Florida.” The webinar will take place on January 26, 2022, from Noon-1:30 and is FREE.

The all-star panel features the Hon. Darrin P. Gayles, District Judge for the Southern District of Florida, Eric I. Bustillo, Director of the Miami Regional Office of the SEC, Corali Lopez-Castro, Kozyak Tropin & Throckmorton, and Naim S. Surgeon, Stroock. The moderator will be Julie Braman Kane, Colson Hicks Eidson.


If you are interested in these opportunities, please register here

Monday, December 13, 2021

"Union Says Staffing Shortages Within Federal Bureau Of Prisons Leading To More Violence"

 That's the title of this Forbes article by Walter Pavlo, who does a lot of good work in this space.  You'll see a number of references to what's going on at FDC in the piece, which is worth reading:

A grievance was recently filed with the Occupational Safety and Health Administration (OSHA) over a recent incident involving an inmate attacking a BOP staff member. Eric Speirs, President of AFGE Local 501 in Miami, said wrote that, “Federal Detention Center (FDC) Miami, FL officials continue to place law enforcement personnel in harms way by understaffing housing units at the facility.” Speirs stated to OSHA that an inmate at FDC Miami, Horrace Harris, who was in custody on murder and carjacking charges, attacked a corrections officer with a metal shank inside a housing unit where there were 116 inmates and a sole corrections officer. The officer was wearing a protective jacket but did sustain puncture wounds. Speirs told me, “If he had not been wearing a vest, we would be dealing with a homicide.”

Attacks on staff at FDC Miami are not new Speirs said. Since 2019, there have been 23 incidences of staff being the target of inmates seeking to harm them … none of those have resulted in additional criminal prosecutions. Speirs told me in an interview, “It is frustrating when passengers on airlines can be punished, rightly, for having an altercation with a crew member, but corrections officers seem to be exempt from the same sort of protection under the law.” In October 2019, rapper Kodak Black (Bill Kapri) was involved in an incident that sent a prison corrections officer at FDC Miami to the hospital and black to a transfer center in Oklahoma. President Donald Trump commuted Black’s sentence shortly before leaving office in January 2021.

Speirs was also frustrated by the fact that the corrections officer involved in the most recent incident had only been on the job for 8 months with his previous experience being a screener at with the Transportation Security Administration (TSA) at Miami International Airport. “It is not that he was new that bothers me as much as he had so little training,” Speirs said of the corrections officer injured in the attack, “but this guy had not even been to the training courses at the Federal Law Enforcement Training Center in Glynco Georgia.” In a letter to US Representative Fredica Wilson (D-FL), Speirs wrote, “Our new personnel only receive 2 weeks of in-class training and 3 weeks hands-on at FLETC, Glynco, GA. Most State and County corrections receive 6 months of training. Officer (name withheld) was on the job for 8 months and still had not been to FLETC! Some new employees have been working around 100+ [inmates] of all security level inmates for 2 years without being to FLETC due to Covid-19 even though other federal law enforcement agencies continued training.” The BOP has been criticized for augmenting staff shortages by using non-traditional corrections officer staff to supervise the inmate population.

In addition to the most recent attack at FDC Miami, a corrections officer at the detention center was injured this morning while chasing an inmate holding a cell phone down a stairwell.

Friday, December 10, 2021

The Long Way Home

By Michael Caruso

If you were a criminal defense lawyer in our district in the early 2000s, you undoubtedly had a client incarcerated at FCI Tallahassee. And if you did, your client certainly knew Katina Smith, who befriended many other women who were serving time there.  Ms. Smith's son—former NFL receiver Demaryius Thomas—passed away yesterday due to a medical issue stemming from a car accident. 

When I heard of his passing, I first thought of a client who was very close to Ms. Smith at FCI Tallahassee. I then recalled this fantastic piece of journalistic storytelling about Ms. Smith and her son.  The story reveals much about their family and our federal criminal legal system.

A little more than a year after the publication of this story, President Obama commuted Ms. Smith's 24-year sentence, and Ms. Smith finally got to see Demaryius play football—in the Super Bowl. 

This is not, however, a story about football but of a family's devastation, struggle, and perseverance. And because of President Obama's commutation, Ms. Smith and Demaryius were reunited and able to be a family again.

According to the Department of Justice, nearly 18,000 clemency petitions are currently pending. As December is traditionally the month in which Presidents issue pardons and commutations, here's hoping that President Biden uses his powers wisely and other families are reunited.

Thursday, December 09, 2021

Do dems secretly want Roe to get overturned?

 That's the question that keeps coming up at every holiday party and cocktail event.  If Roe gets wiped away, will that turn the tide in the next election and help the Democrats keep the House/Senate and retake the Supreme Court?  Is that worth it since it appears that the party is in neutral? 

Meantime, Ruth Marcus wrote this piece in the Washington Post about the oral argument:

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.

It is also wrong, misleading and dangerous.

Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.

“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.

The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”

How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.


Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.

Tuesday, December 07, 2021

Is it time to add more Justices to the Supreme Court?

 President Biden's Supreme Court Commission can't come to an agreement on this point.  Here's the report.  Here's the CNN coverage of it:

A controversial commission set up by President Joe Biden to explore changes to the US Supreme Court concluded in a draft final report Monday that there was "profound" disagreement over whether to add more seats to the bench but suggested more consensus for term limits for the justices without taking a final position on the issue.

The report -- which was widely criticized before its release because it would not offer concrete recommendations to the President -- spans hundreds of pages and also tackles issues such as the court's emergency docket and the current state of confirmation hearings. The draft report was compiled by a commission with more than 30 members, who are expected to vote Tuesday to make the report final.
The report from the commission, which was established last April, comes as polls show that public approval of the Supreme Court has dropped in recent months, especially since September, when the justices allowed a Texas ban on abortions at roughly six weeks of pregnancy to take effect. More recently, after oral arguments in a Mississippi abortion rights case, it appeared the justices were on the cusp of eviscerating the core of Roe v. Wade, the 1973 landmark ruling that made abortion legal nationwide.

Instead of (or maybe in addition to) adding seats, we should impose term limits on Justices.  18 years sounds about right.

Sunday, December 05, 2021

"How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

 That's the title of this NY Times editorial, which is a question that the criminal defense bar has been pressing for decades. From the conclusion:

There is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

Friday, December 03, 2021

“To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

By Michael Caruso:

This story is both remarkable and not. In 1982, Anthony Broadwater was convicted of raping the author Alice Sebold when she was a student at Syracuse University. He served 16 years in prison. Two weeks ago, a court vacated his conviction after prosecutors reexamined the case.

Sebold wrote in 1999′s “Lucky” of being raped and then spotting a Black man in the street several months later who she believed was her attacker. Sebold, who is white, went to the police. An officer said the man in the street must have been Broadwater, who had supposedly been seen in the area. After the police arrested Broadwater, Sebold failed to identify him in a police lineup, picking a different man as her attacker because she was frightened of “the expression in his eyes.”

But prosecutors put Broadwater on trial anyway. He was convicted based largely on Sebold identifying him as her rapist on the witness stand and testimony that microscopic hair analysis had tied him to the crime. That type of analysis has since been deemed junk science by the U.S. Department of Justice.

Broadwater always insisted he was innocent and was denied parole several times for refusing to acknowledge guilt. He took two polygraph tests, decades apart, with experts who determined that his account was truthful.

In a statement, Sebold wrote to Broadwater that she was truly sorry for what he’d been through.“I am sorry most of all for the fact that the life you could have led was unjustly robbed from you, and I know that no apology can change what happened to you and never will,” she wrote.

She wrote that “as a traumatized 18-year-old rape victim, I chose to put my faith in the American legal system. My goal in 1982 was justice — not to perpetuate injustice. And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine.”

Broadwater said he was “relieved that she has apologized.” “It took a lot of courage, and I guess she’s brave and weathering through the storm like I am,” he said. “To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

This story is not remarkable in that a man suffered a wrongful conviction because of a misidentification and the introduction of junk science at his trial. The story is remarkable as an example of our capacity to forgive grievous wrongdoing. A lesson for all of us. 

Thursday, December 02, 2021

We're doomed.

 That's the feeling of Roe supporters after the Supreme Court argument yesterday.

SCOTUSblog covered the oral argument:

Sotomayor is also prepared to put the case in stark perspective.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.

“Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Sotomayor says.

I’ll confess that I thought I heard her say “political hacks,” as if she were playing on the phrase Justice Amy Coney Barrett used during a speech this summer, when she insisted the justices are not “a bunch of partisan hacks.” But a close listen to the recording seems to confirm what is in the transcript: “political acts.” There was no mistaking, though, that Sotomayor said “stench,” a strong word not often heard in this courtroom.

Stewart has an answer for her.

“Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we’ve laid out,” he says.

“Casey did that,” she replies.

“No, it didn’t, Your Honor, respectfully,” he says.

The chief justice, as he has done before, decides to interrupt Sotomayor after she has gone on at some length. (She will come back a few minutes later with, “May I finish my inquiry?”)

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

Rikelman, who argued and won June Medical Services v. Russo in 2020, which struck down Louisiana’s abortion restrictions, takes to the lectern and tells the court, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent.”

After a few questions from Thomas, the chief justice zeroes in on Mississippi’s 15-week ban. Fifteen weeks is well before the point of fetal viability, which occurs around 24 weeks of pregnancy.

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” Roberts asks. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman says that, among other reasons, “without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”

Justice Samuel Alito presses Rikelman on a more philosophical question.

“What is the philosophical argument, the secular philosophical argument, for saying [viability] is the appropriate line?” he says. “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”

“No, Your Honor, it is principled,” she says, “because, in ordering the interests at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”

Prelogar, arguing for the United States in support of Jackson Women’s Health, says, “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. … If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”