Justice Brett M. Kavanaugh argued Wednesday that it was not possible to “accommodate” both the interest of the pregnant woman and the interest of the fetus, according to the existing framework Prelogar mentioned in her argument.
“You have to pick. That’s the fundamental problem,” Kavanaugh said. “And one interest has to prevail over the other at any given point in time.”
Kavanaugh then returned to his argument, as he mentioned in previous questions, that the Constitution is “neutral” on the issue of abortion.
“When you have those two interests at stake and both are important, as you acknowledge … why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Kavanaugh asked Prelogar. “And there’ll be different answers in Mississippi, in New York, different answers in Alabama than California, because there are two different interests at stake, and the people in those states might value those interests somewhat differently. Why is that not the right answer?”
Prelogar argued it was not the right answer because the court had already “correctly recognized that this is a fundamental right of women and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”
She agreed that different rules would prevail throughout the country if Roe were overturned, but she said that would simply lead to women seeking illegal abortions or having a child even against their best interests.