And then I think it's since 1973. The question of viability has risen
again What that actually means. Because now, um
Viability was around 28 weeks that is, the fairest could live outside
the womb. But today because of advances in medical science, the fetus
can live outside the womb after about 23 weeks.
Is that your understanding?
Senator Ivan studied this, so I don't know the
The, um
A number of weeks in the way that you're saying
Well, let's just talk a little bit about viability, the line that
was drawn
Um for pre viability and post viability analysis by the court.
Um, what is viability mean when it comes to an unborn child in your
understanding?
Senator, I hesitate to speculate. I
Don't
I know that It is a point in time that the court has identified in
terms of, uh, when, uh, the standards that applied to regulation
of the right
Justice Brennan.
Cheap.
And later point in his career on the Supreme Court admitted that
The viability line was an arbitrary
Line.
Do you agree with
Agree with him.
Senator I'm not able to comment on, um
Viability. There is a case pending in the Supreme Court right now
concerning the issues asking you about previous decisions, but I
hear you
Um
No one suggests that a 20 week old fetus can live independently outside
the mother's womb.
Do they
I don't know. I mean, you need the child will need to be fed and
sheltered and all the other essentials to sustain human life. So
there's no suggestion that after 20 weeks that
A child can be live independently.
Correct.
Senator. I'm I'm not a
Biologist. I haven't studied this. I don't know. Um
You don't know whether if
An unborn child could live outside the womb at 20 weeks gestation.
What I know is that the Supreme Court has, um, tests and standards
that it's applied.
When it evaluates regulation of the right.
Of a woman to terminate their pregnancy. They have a, uh the court
has announced, um, that there is a right to terminate
Up to the point of viability, subject to the framework and Rohan
Casey, and there's a pending case right now that is addressing these
issues.
The Constitution doesn't mention the word abortion, correct.
That's correct.
Just like it doesn't mention the word marriage.
Correct. That is correct.
And so as you and I discussed, perhaps add nauseum yesterday when
we were talking about substantive due process. This is one of those
UN enumerated rights.
That the court has created, court made doctrine or law.
And creating a constitutional right, even though it's not explicitly
mentioned in the constitution itself.
Correct. The court has interpreted the due process clause of the
14th amendment to increase. We've talked about substantive due process
yesterday and and that's that's what this is right. The Supreme Court
Cases that deal with the right of abortion is a result of substantive
due process analysis like you and I talked about yesterday.
Um, yes, okay.
In the
You remember when you were confirmed for the court of Appeals?
In that process. There was we had a hearing, and then we sent you
questions for the record. What we call Q frs around here? Yes, and
one of those
Question number 10 was Does the Constitution protect rights that
are not expressly enumerated in the Constitution?
As part of your answer, you said.
You mentioned Roe versus Wade and Planned Parenthood versus Casey.
And you said this and I'll quote
They articulate a limited right?
To terminate a pregnancy.
What is the limitation that you understand?
That was
Pronounced in Roe versus Wade. In case you want, it comes to a right
to terminate an abortion. What are the limitations?
Under current law.
Under current law, as I understand it, um, there are, uh
Um
Limitations in so far as, um There can be regulation of that
right. Pre viability. Um
Unless the regulation imposes
An undue burden on the exercise of the right.
And there can be regulation.
After viability, Um as as long as there is exception for the health.
Um
The health and I think maybe life of the mother.
Um, so it's the limitations are about
Whether in to what extent
Um the government can regulate.
The right
Is that your understanding under the current president of the Supreme
Court that
There is a right to abortion up to and including the time of delivery
of the child.
Senator. I don't um
I don't
No, actually, I mean, I
The Supreme Court in every case is looking at individual
Regulations of the government related to, um
Related to individual rights. And, um, I am not aware of the
court having
Made a pronouncement about
Whether or not regulation can come up can extend all the way up until
birth. I'm just not aware of that.
And that it's because the court is looking at individual cases and
making its rulings in the context of individual cases and not making,
um
Sort of pronouncements in general. So you were suggesting that in
some individual case, um the right to abortion could extend
Through the entire pregnancy up until the time the child is delivered.
No Senator, I'm suggesting that I'm not aware of any case that's