The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During oral argument in Dobbs, Justice Sotomayor made an understandable speaking error. Around the 19:00 minute mark, she said "I think that's what both courts below said, that you had no expert say that there is any viability before 23 to 24 months." She obviously meant "23 to 24 weeks."
However, the official Supreme Court transcript, prepared by Heritage Reporting Company, corrected this obvious error on p. 21.
What is the protocol for correcting obvious speaking errors by the Justices, or by parties? I am not a fan of this practice. A court reporter should report what happens in court. Often small slip-ups by counsel or judges creates grounds for appeal. It is not the reporter's job to fix a speak-o (as Jonathan Gruber would say). I've asked Heritage for a comment.
Still, if we take the "viability" line seriously, a child is really not viable at 24 weeks or even 24 months. An infant, left to fend for himself in the wild, would not survive long. He will still depend on the support of others. A child may not be able to be truly self-sustaining until adolescence.
This issue was explored in a classic episode of South Park involving Eric Cartman's mother, who sought a really-late term abortion:
Liane Cartman : [At the Unplanned Parenthood Clinic] I want to have… an abortion.
Nurse Goodly : Oh, well, we can do that. This must be a very difficult time for you, Mrs…
Liane Cartman : Cartman. Yes, it's such a hard decision but I just don't feel like I can raise a child in this screwy world.
Nurse Goodly : Yes, Ms. Cartman, if you don't feel fit to raise a child, an abortion probably is the answer. Do you know the actual time of conception?
Liane Cartman : About 8 years ago.
Nurse Goodly : [thinking] I see… So the fetus is…
Liane Cartman : 8 years old.
Nurse Goodly : Ms. Cartman, 8 years old is a little late to be considering abortion.
Liane Cartman : Really?
Nurse Goodly : Yes, this is what we would refer to as the 40th trimester.
Liane Cartman : But I just don't think I'm a fit mother.
Nurse Goodly : But we prefer to abort babies a little earlier on. In fact, there's a law against abortions after the 2nd trimester.
Liane Cartman : Well, I think you need to keep your laws off of my body!
Nurse Goodly : Hummm… I'm afraid I can't help you, Ms. Cartman. If you want to change the law, you'll have to speak with your congressman.
Liane Cartman : Well, that's exactly what I intend to do! Good day.
I thought of this episode during colloquies with Justice Barrett yesterday.