多布斯诉杰克逊妇女健康组织案

但如果法院不这样做，卡根大法官，只会持续造成损害，法院将继续深陷这一政治议题。

But if the court doesn't do that, justice Kagan, it's just going to be, continued damage, the court will continue to plunge in this political issue.

对不起，首席大法官。

I apologize, mister chief justice.

我超时了。

I've gone out.

不。

No.

不。

No.

没关系。

That's alright.

我只有几个小问题——嗯，也不算小，我希望如此。

I have just a few little, well, not little, I hope, questions.

第一个问题回到可行性的问题上。

And the first gets back to the issue of viability.

你知道，在你的调卷令请愿书中，你提出的第一個問題，也是我們僅批准審理的問題，是：所有針對妊娠早期的選擇性墮胎禁令是否都違憲。

You know, in your petition for cert, your first question and the only one on which we granted review was, whether all pre viability prohibitions on elective abortions are unconstitutional.

然後我認為可以說，當你提交案情簡報時，你稍微轉向了，更多地討論了羅伊案和凱西案是否應被推翻的問題。

And then I think it's fair to say that when you got to the brief on the merits, you kinda shifted gears and talked a lot more about whether or not Roe and Casey should be overruled.

我想給你一個機會來解釋一下這種轉變。

And I wanted to give you a chance to explain that.

當然，法官大人。

Sure, your honor.

所以，有幾點。

So a couple points.

你知道，在請願階段，我們當然為法院提出了三個問題。

You know, at the petition stage, we were, of course, identifying we'd identified for the court three questions.

我們在調卷階段強調了，正如你們在調卷階段所做的那樣：這很重要。

We emphasized, as you do at the cert stage, hey.

這很關鍵。

This is important.

只有本院才能解决这个问题。

Only this court can resolve it.

我们强调了五次，我认为，法院至少需要重新考虑、重新审视或重新评估其先例，我们请求法院至少废除妊娠存活率标准或任何关于妊娠存活率标准的暗示。

We emphasized, I believe it was five times, that the court was at the least going need to going to need to reconsider, revisit, or reevaluate its precedents, and we asked the court to at least get rid of a viability line or any suggestion of a viability line.

因此，我们另外提出了这一点，同时必须考虑到这一论点在下级法院并未获得成功。

So we added, however, and we had to take account of the reality that this argument has not fared well in the lower courts.

它在每一个上诉法院都败诉了。

It's lost in every court of appeals.

因此，我们额外提出了这一问题，但一旦法院仅批准了第一个问题，我们就如我们所表明的那样，围绕这一根本性问题全面呈现了宪法实质问题的全部论点。

So we raised the issue in addition, but once the court granted only the first question, we presented every argument as we signaled we would present the full blown constitutional merits argument with that fundamental question.

所以，我想强调这一点，法官大人。

So I I'd emphasize that, your honor.

这正是从调卷令阶段到实质审理阶段的转变。

It was kind of the shift you go from cert stage to merit stage.

法院批准了一个问题。

The court granted one question.

这个问题合理地包含了什么是正确的

That question, fairly includes what is the correct

嗯，它合理地包含了您提出的更广泛的论点。

Well, it fairly includes the broader arguments you raised.

我并没有这个意思。

I'm not suggesting that.

但另一方面，它 presumably 也包含了可行性问题，因为您在那一句话中谈到了它。

But on the other hand, it presumably included the viability question as well because that's what you talked about in that one sentence.

而且，我们也已经解决了这个问题，法官大人。

And and and we we've addressed that as well, your honor.

我想强调的是，关于罗伊案和凯西案作为原始问题的有效性，即宪法中是否存在可行性规则，这些并不那么复杂或冗长。

What I what I'd emphasize here is that the merits arguments of, you know, the validity of Roe and Casey as an an original matter, is there a viability rule based in the constitution, those are not that complicated or or or lengthy.

更困难的问题是，法院是否应该推翻并迈出这一步？

The the harder questions are, you know, should the court overrule and and take that that momentous step?

因此，我们花了大量篇幅来探讨这个非常重要的问题。

And that's why we devote a lot of space to that very important issue.

我们尊重先例，并已逐一探讨了所有这些观点。

We respect stare decisis and have walked through all those points.

但再次强调，聚焦于所提出的问题并为此提出我们最有力的论点，这正是我们所做的，首席大法官。

But, again, focusing on the question presented and arguing presenting our best arguments for that, that's that's what we've done, mister chief justice.

关于先例问题，我认为首先要看的是，所涉判决在作出时是否错误。

On, stare decisis, I think the first issue you look at is whether or not the decision, at issue was wrongly decided.

我实际上一直不太明白如何评估这一点。

I've actually never quite understood how you evaluate that.

是根据判决作出时的法律原则和学说来判断其错误，还是以事后视角来看？

Is it wrongly decided based on the legal principles and doctrine when it was decided or or in retrospect?

因为罗伊案，我的意思是，当时与罗伊案同期有许多案件，虽然规模不及它，但采用了完全相同的分析方式，这些分析如今我们认为是错误的。

Because Roe I mean, there are a lot of cases around the time of Roe, not of that magnitude, but the same type of analysis that, that went through exactly the sorts of things we today would say were erroneous.

但如果我们从今天的视角来看，那将是一长串我们都会认为是错误判决的案件。

But do we look at it from today's if we look at it from today today's perspective, it's gonna be a long list of cases that, we're gonna say were wrongly decided.

嗯，首席大法官，我认为您可以从两个角度审视：它在当时是否错误，以及是否因新的理解、新知识或任何发展而被揭示为错误。

Well, I I'd say I'd say, mister chief justice, that, you you look you can look both was it wrong at the time, has it been unmasked as wrong by by new understandings, new knowledge, any developments.

但我觉得，正如我与巴雷特大法官的对话所表明的，法院无需审视许多其他领域，因为这一领域具有独特的问题性，涉及特别复杂的遵循先例考量。

But I don't think, as I think my colloquy with Justice Barrett indicated, the court won't have to be looking at many other areas because this is an area that has a uniquely problematic set of stare decisis considerations.

许多其他有争议的领域，或曾经有争议的领域，如今已非常稳定，规则明确，不存在此类问题。

A lot of other controversial areas, or once controversial areas, are quite settled, clear rules, and don't have those considerations against them.

因此，通过推翻罗伊案和凯西案，法院无需走上那条道路，这些判决在很大程度上完全可以基于历史、传统以及法院的传统因素来确立，尊敬的法官。

So really, by overruling Roe and Casey, the court won't have to go down that road, and a lot of those decisions are quite readily, groundable in history, tradition, and the court's traditional factors, your honor.

谢谢。

Thank you.

托马斯大法官？

Justice Thomas?

布雷耶大法官？

Justice Breyer?

这合法吗？

Is it legal?

索托马约尔大法官？

Justice Sotomayor?

洞穴？

Cave?

大法官？

Justice?

总检察长，我只是想了解一下您对中间立场的看法。

General, just wanted to get your quick sense of how your intermediate positions would work.

我的意思是，如果基本放弃了胎 viability 标准，而将“不当负担”作为总体标准，而根据您的说法，这是一个不明确的标准。

You know, if, basically, the viability line was discarded and undue burden became the standard overall, a standard that according to you is an unclear one.

这将给法院未来留下什么？

What that would leave the court with going forward?

我只是在想，各州可能会通过各种各样的法规。

You know, I'm just sort of thinking about the great variety of regulations that states could pass.

比如有的是15周，有的是12周，有的是9周，或者在其他众多维度上存在差异。

So whether one is fifteen weeks and one is twelve weeks and one is nine weeks, or variation across a wide variety of other dimensions.

这些情况一旦上诉到法院，会是什么样子？

What would that look like coming to the court?

如果法院走上这条道路，我们该如何应对？您会建议我们如何处理这种情况？

How would we how how do you think we should we would be able to deal with that, or or or how would you counsel us to deal with that if the court were to go down that road?

我认为这并不是要反驳您的观点，我会回答您的问题，卡根大法官。但我们建议彻底推翻罗伊案的原因之一，正是为了消除您所提及的诸多问题。

Well, I think I this is not to push back against the end, and I will will answer your question, Justice Kagan, but part of why we've counseled to overrule full scale is that that's the only way to get rid of a number of the problems that I think your honor's alluding to.

当采用‘不当负担’标准时，这个标准非常难以适用。

And that's that when you have the undue burden standard, it's a very hard standard to apply.

它不具备客观性。

It's not objective.

法院必须在每个案件中查看记录和具体情况。

The court looks to the record in each case and what's going on.

我的意思是，凯西案本身的法院就曾表示，根据这一记录，这并不构成不当负担。

I mean, the court in Casey itself said under this record, this is not an undue burden.

你无法确定地说，在某个地方怀孕12周是不当负担，而在另一个地方却不是。

You couldn't say necessarily for certain that certain number of weeks one place would be an undue burden, but would be okay another place.

但再次强调，这正是凯西案所确立的世界。

But again, that is the world we have under Casey.

因此，如果法院根据不当负担标准维持这项法律，就等于延续了这些特征。我希望我已经回答了您的问题，但我认为，这是彻底推翻罗伊案和凯西案的强有力理由之一，法官大人。

So if the court upholds this law under the undue burden standard, it would be carrying forward those features, and I hope I've answered your question, but I think that's one of the very strong reasons to just go all the way and overrule Roe and Casey, your honor.

总之。

Anyway.

戈萨奇大法官？

Justice Gorsuch?

卡瓦诺大法官？

Justice Kavanaugh?

我想明确一下您所主张和不主张的内容。

I wanna be clear about what you're arguing and not arguing.

是的。

Yes.

为了明确一点，据我理解，您并没有主张法院本身有权禁止堕胎，或者本院有权命令各州禁止堕胎。

And to be clear, you're not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion as I understand it.

对吗？

Correct?

是的，法官大人。

Correct, your honor.

据我理解，您主张宪法对堕胎问题保持沉默，因此持中立态度。

And as I understand it, you're arguing that the constitution's silent and therefore neutral on the question of abortion.

换句话说，宪法在堕胎问题上既不支持生命权，也不支持选择权，而是将这一问题留给各州人民或可能由国会通过民主程序解决。

In other words, that the constitution's neither pro life nor pro choice on the question of abortion, but leaves the issue for the people of the states or perhaps congress to resolve in the democratic process.

这样理解准确吗？

Is that accurate?

没错。

Right.

我们主张，这应由人民来决定，法官大人。

We're we're saying it's it's left to the people, your honor.

因此，如果您胜诉，大多数州或各州仍可自由允许堕胎。

And so for the, if you were to prevail, the states majority of states or states still could or and presumably would continue to freely allow abortion.

即使您胜诉，在您的观点下，许多州——一些州——仍能这样做。

Many states, some states would be able to do that even if you prevail on under your view.

这是正确的吗？

Is that correct?

这与我们的观点一致，法官大人。

That's consistent with our view, your honor.

它允许所有利益方充分表达意见，而且我们在某些州看到的许多堕胎案例，我认为没有人会认为这些州会朝着更严格的法律方向修改。

It's it's one that, allows all interests to have full voice, and and many of the abortions we see in certain states that I don't think anybody would think would be moving to change their laws in a more restrictive direction.

谢谢。

Thank you.

谢谢您，法官大人。

Thank you, your honor.

巴雷特大法官。

Justice Barrett.

总检察长，我有一个问题，是关于布雷耶大法官刚才问您的问题的后续。

General, I have a question that is a little bit of a follow-up to one that Justice Breyer was asking you.

这涉及遵循先例原则，我认为您与我们所有人之间的大量对话都围绕着遵循先例原则的好处，这一点我认为没有人有争议。

That's about stardicis, and I think a lot of the colloquy you've had with all of us has been about the benefits of stare decisis, which I don't think anyone disputes.

当然，没有人能否认，因为根据我们的遵循先例原则，它并非不可推翻的命令，在某些情况下推翻先例是可能的。

And, of course, no one can dispute because it's part of our stare decisis doctrine that it's not an inexorable command and that there are some circumstances in which overruling is possible.

你知道吗？

You know?

我们有普莱西案、布朗案。

We have Plessy, Brent Brown.

我们有鲍尔斯诉哈德威克案到劳伦斯案。

We have Bowers versus Hardwick to Lawrence.

但在思考遵循先例原则时——这显然是本案的核心——我们应当如何理解它？

But in thinking about stare decisis, which is obviously the core of this case, how should we be thinking about it?

我的意思是，布雷耶大法官指出，在凯西案中，在某种程度上，对遵循先例的理解是不同的，而且迄今为止，它明确考虑了公众反应。

I mean, justice Breyer pointed out that in Casey and in some respects, well, it was a different conception of stare decisis and so far is it very explicitly took into account public reaction.

您是否接受这一因素？

Is that a factor that you accept?

您是否主张我们应该弱化这一因素？

Are you arguing that we should minimize that factor?

是否存在一套不同的规则？

And is there a different set of rules?

确实，凯西案将布朗案和西海岸酒店案认定为分水岭判决，但对于法院可能认定为分水岭判决的情形，是否存在一套独特的遵循先例考量因素？

It is true that Casey identified Brown and West Coast Hotel as watershed decisions, but is there a distinct set of stare decisis considerations applicable to what the court might decide as a watershed decision?

我认为那里不应该有一套独立的考量因素，法官大人。

I don't think there should be a distinct set of considerations there, your honor.

请强调一下，为了确保理解清楚，关于法院的合法性——法院向外看，我认为凯西案在这方面是不寻常的。

Think what emphasize, and just to make sure, on the kind of legitimacy, the court looking outward, I think Casey was unusual in that regard.

我认为这是一个错误，而且这种做法与本法院作为独立分支的结构和方法相冲突，因为我们应着眼于宪法，而不是外部因素。

I think it was a mistake, and I think it's something that is kind of in conflict with this court's structure and approach as an independent branch, looking to the Constitution rather than looking without.

我认为这也是为什么传统上，法院在一些最重要的推翻判例时，并不关注外部因素的原因。

And I think that's one reason why traditionally the court is, in some of its greatest overrulings, it's not looking without.

它只是说：这个判决是错误的。

It's saying this was wrong.

它在作出之日就是错误的。

It was wrong the day it was decided.

我们知道它今天是错误的，并且已经导致了所有这些可怕的后果。

We know it's wrong today, and it's led to all these terrible consequences.

我们应该把它废除。

We should get we should get rid of it.

所以我认为这是一个不幸的偏离，我认为即使法院仍然考虑合法性问题，巴雷特大法官，法院也可以非常有力地指出：我们的合法性真正源于我们愿意在任何情况下都坚定立场，坚持宪法原则，并遵循我们传统的遵循先例因素，在适当时予以推翻。

I so I I think that that was an unfortunate break, and I think the court, even if the court were to still look at legitimacy though, Justice Barrett, I think the court could very, very powerfully say, look, our legitimacy really derives from our willingness to stand strong and stand firm in the face of, whatever is going on and stand for constitutional principle and follow, our traditional stare decisis factors to overrule when it's appropriate.

谢谢，法官大人。

Thank you, your honor.

谢谢，律师。

Thank you, counsel.

谢谢，首席大法官。

Thank you, mister chief justice.

里克尔曼女士？

Miss Rickelman?

首席大法官，各位法官，您好。

Mister chief justice, and may it please the court.

密西西比州在胎儿具备存活能力前两个月禁止堕胎，明显违反了数十年来的判例。

Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent.

密西西比州要求法院推翻这一判例，允许各州强迫女性继续怀孕并生育，违背她们的意愿。

Mississippi asks of the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.

法院应当拒绝这样做，至少有三个理由。

The court should refuse to do so for at least three reasons.

第一，遵循先例原则在此处设定了极高的门槛。

First, stare decisis presents an especially high bar here.

在凯西案中，本院仔细审查并驳回了每一个推翻罗伊案的可能理由，认定女性在胎儿具备存活能力前终止妊娠的权利是一项法律规则，是自由不可放弃的组成部分。

In Casey this court carefully examined and rejected every possible reason for overruling Roe, holding that a woman's right to end a pregnancy before viability was a rule of law and a component of liberty it could not renounce.

那么问题不在于罗伊案是否应被推翻，而在于凯西案坚持罗伊案核心立场是否明显错误。

The question then is not whether Roe should be overturned, but whether Casey was egregiously wrong to adhere to Roe's central holding.

第二，凯西案和罗伊案的判决是正确的。

Second, Casey and Roe were correct.

国家若掌控女性的身体，强迫她经历怀孕和分娩，以及随之而来的所有身体风险和改变人生的结果，就是对她自由的根本剥夺。

For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life altering consequences that brings is a fundamental deprivation of her liberty.

在胎儿可存活之前保留女性做出这一决定的权利，既能保护她的自由，又能合乎逻辑地平衡其他相关利益。

Preserving a woman's right to make this decision until viability protects her liberty while logically balancing the other interests at stake.

第三，取消或削弱堕胎权将使女性倒退。

Third, eliminating or reducing the right to abortion will propel women backwards.

两代人已经依赖这一权利，每四位女性中就有一位选择终止妊娠。

Two generations have now relied on this right, and one out of every four women makes the decision to end a pregnancy.

密西西比州的禁令将特别伤害那些在怀孕期间经历重大健康或生活变化的女性。

Mississippi's ban would particularly hurt women with a major health or life change during the course of a pregnancy.

贫困女性获得医疗服务的延迟可能性是两倍，年轻人或使用避孕措施者则需要更长时间才能发现怀孕。

Poor women who are twice as likely to be delayed in accessing care, and young people or those in contraception who take longer to recognize a pregnancy.

为避免对女性的自由、平等和法治造成深远损害，法院应当予以维持。

To avoid profound damage to women's liberty, equality, and the rule of law, the court should affirm.

律师，我只有一个问题。

Counsel, I just have one question.

我假设，根据你的简报，你依赖的是自主权理论。

I assume you, from your brief, you're relying on, an autonomy theory.

两者都涉及身体完整性和与家庭、婚姻及生育相关的决策权，法官大人？

Both, bodily integrity and the ability to make decisions related to family, marriage, and childbearing, your honor?

在我们作出凯西案判决后不久，我们审理了一起来自南卡罗来纳州的案件，我认为，该案涉及一名女子因怀孕期间吸食可卡因而被定罪为刑事疏忽虐待儿童。

Shortly some years after we decided Casey, we had a case out of South Carolina, I believe, involved a woman who had been convicted of criminal child neglect because she ingested cocaine during pregnancy.

在她的案件中，胎儿已经存活，因此与本案的事实不符。

In her case, was post viability, So it doesn't fit in the facts of this case.

如果她在胎儿存活前吸食可卡因，并对胎儿造成同样的负面后果，您认为州政府是否有权对此类法律对她进行强制执行？

If she had ingested cocaine pre viability and had the same negative consequences to her child, Do you think the state had an interest in enforcing that law against her?

州政府或许有权，法官大人。

The state may have, your honor.

州政府当然可以进行监管，以实现其对胎儿生命和妇女健康的利益保护。

The state can certainly regulate to serve its interests in fetal life and in women's health.

这些特定法律往往会削弱这两项利益，因为它们使妇女不敢寻求产前护理，这反而对她们的健康有害。

Those particular laws tend to undermine both of those interests because they deter women from seeking prenatal care, which is counterproductive to both their health.

但无论是胎儿存活前还是存活后。

But the pre viability as well as post viability.

不，法官大人。

No, your honor.

法院一直明确表示，在胎儿可存活之后，各州可以禁止堕胎，除非是为了挽救生命。

The the court has been clear that after viability, states can prohibit abortion except to save No.

我的意思是，在我举的刑事儿童忽视的例子中。

I mean, the the in my example of criminal child neglect.

我明白您的论点是关于堕胎的。

I understand you your argument is about abortion.

我试图探讨身体自主权的问题，以及当她摄入非法物质并伤害可存活前的胎儿时，她是否也拥有身体自主权？

I am trying to look at the issue of bodily autonomy and whether or not she has a right also to bodily autonomy in the case of ingesting an illegal substance and causing harm to a pre viability fetus?

法官大人，当然，这些问题在本案中并未提出。

Your honor, of course those issues aren't posed in this case.

而且，我再次强调，各州可以在整个孕期，无论是可存活前还是可存活后，为保护胎儿生命和维护女性健康进行监管。

And again, I would say that the states can certainly regulate throughout pregnancy, both before and after viability, to preserve fetal life and to preserve the woman's health.

然而，法院指出，还存在其他宪法问题，例如在Ferguson案中，各州仍不得侵犯女性的第四修正案权利。

The court has said however there are other constitutional issues at stake, for instance in the Ferguson case that states still can't violate women's Fourth Amendment rights.

但再次强调，本案与此无关。

But again, that's not what this case is about.

本案涉及的是一个州承认在胎儿存活前数周就禁止堕胎的法规，而法院在过去五十年中一直明确指出，州政府绝对不能在胎儿存活前完全剥夺女性的决定权。

This case is about a ban on abortion that the state concedes is weeks before viability, and the court has been clear for fifty years that the one thing that states cannot do is to take the decision completely away from the woman until viability.

在那之前，这是她的决定，因为怀孕具有独特的生理负担，以及怀孕和生育对孩子带来的改变人生的影响。

That until that point it is her decision to make, given the unique physical demands of pregnancy and the life altering consequences of pregnancy and having a child.

谢谢。

Thank you.

您关于女性及其在社会中地位影响的观点，这些在罗伊案中也确实被提出过。

You the point you made about the impact on on women and their place in society, those were certainly made in Roe as well.

然而，我们面前的是一个十五周的标准。

What we have before us, though, is a fifteen week standard.

您是否暗示，十五周与胎儿存活点之间的差异，会像您之前所谈或我们在罗伊案中讨论的那样产生同样的影响？

Are are you suggesting that the difference between fifteen weeks and viability are going to have the same sort of impacts as you were talking about or as we were talking about in Roe?

是的，法官大人。

Yes, your honor.

我相信会这样，因为需要在十五周后进行堕胎的人往往处于最艰难的境况中。

I believe they would because people who need abortion after fifteen weeks are often in the most challenging circumstances.

正如我所提到的，有些人可能经历了重大的健康或生活变故，比如家庭成员患病、失业、分手，或是年轻人、使用避孕措施者或首次怀孕者，他们延迟察觉到怀孕的迹象；还有贫困女性，她们在获取医疗服务时往往面临更多困难。

As I mentioned, there are people who have may perhaps had a major health or life change, a family illness, a job loss, a separation, young people or people who are on contraception or pregnant for the first time and who are delayed in recognizing the signs of pregnancy, or poor women who often have much more trouble navigating access to care.

如果因为十五周后的禁令而被剥夺做出这一决定的权利，她们将承受法院过去所讨论过的所有后果。

And if they're denied the ability to make this decision because there's a ban after fifteen weeks, they will suffer all of the consequences that the court has talked about in the past.

事实上，过去五十年的数据非常明确地表明，堕胎对女性平等参与社会至关重要。

And in fact, the data has been very clear over the last fifty years that abortion has been critical to women's equal participation in society.

它对她们的健康、生命以及她们能够

It's been critical to their health, to their lives, their ability to

追求，抱歉。

pursue sorry.

这些数据具体是指什么？

What what kind of data is that?

我建议法院参阅本案经济学家提交的简报，法官大人，其中汇编了基于因果推断的研究数据，表明正是堕胎合法化，而非其他变化，才为女性在社会中带来了这些益处。

I would refer refer refer the court to the brief of the economists in this case, your honor, and it compiles data showing studies based actually on causal inference, showing that it's the legalization of abortion and not other changes that have had these benefits for women in society.

而且，这些好处在教育、追求职业等方面都十分明显。

And, again, those benefits are clear for education, for the ability to pursue a profession, for the ability to

嗯，

have Well,

撇开这些数据不说，如果你认为问题在于选择权，即女性应该有权终止妊娠，那就意味着她们应当有足够公平的机会来做出选择。

putting that data aside, 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, opportunity to choice.

为什么十五周会是一个不恰当的界限呢？

And why would fifteen weeks be an inappropriate line?

所以，在我看来，胎儿成活能力与选择权无关。

So a viability, it seems to me, doesn't have anything to do with choice.

但如果这真的关乎选择权，为什么十五周的时间还不够呢？

But if it really is an issue about choice, why is fifteen weeks not enough time?

法官大人，原因有几点。

For for a few reasons, your honor.

首先，州政府已承认，有些女性无法在十五周前获得堕胎服务，而这项法律将阻止她们这样做。

First, the state has conceded that some women will not be able to obtain an abortion before fifteen weeks, and this law will bar them from doing so.

而合理的可能性标准对法院来说将完全不可行。

And a reasonable possibility standard would be completely unworkable for the courts.

它将比胎动标准更缺乏原则性，也更不可行，原因之一是，如果没有胎动标准，就没有任何停止点。

It would be both less principled and less workable than viability, and some of the reasons for that are without viability there will be no stopping point.

各州将急于在怀孕的任何阶段禁止堕胎。

States will rush to ban abortion at virtually any point in pregnancy.

密西西比州本身正在为一项六周禁令辩护，其论点与为十五周禁令辩护时非常相似，还有一些州已实施禁令。

Mississippi itself has a six week ban that it's defending with very similar arguments as it's using to defend the fifteen week ban, and there are states that have bans

我知道，但我希望聚焦于十五周禁令，因为它并未对胎动标准造成巨大偏离。

Well, I know, but I'd like to focus on the fifteen week ban because that's not a dramatic departure from, viability.

这是绝大多数其他国家所采用的标准。

It is the standard that the vast majority of other countries have.

当你谈到胎动标准时，我们与中国和朝鲜共享这一标准。

When you get to the viability standard, we share that standard with the People's Republic Of China and North Korea.

我不认为你必须支持援引国际法来设定我们的宪法标准，才会对与这些国家共享这一时间段感到担忧。

And I don't think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your share that particular time period?

我认为这里有两个问题，尊敬的法官，容我说明。

I think there's two questions there, your honor, if I may.

首先，关于国际法的说法是不正确的。

First, that is not correct about international law.

事实上，大多数允许合法堕胎的国家，都允许在胎儿具备存活能力之前随时进行堕胎，即使它们设定了名义上的早期限制线。

In fact, the majority of countries that permit legal access to abortion allow access right up until viability even if they have nominal lines earlier.

例如，加拿大、英国和大多数欧洲国家都允许在胎儿具备存活能力之前随时进行堕胎，而且它们也没有我们这里存在的相同障碍。

So for example, Canada, Great Britain, and most of Europe allows access to abortion right up until viability, and it also doesn't have the same barriers in place.

您说‘即使它们设定了名义上的早期限制线’是什么意思？

What do you mean even if they have nominal lines earlier?

一些国家，尊敬的法官，设定了十二周或十八周的名义限制线，但它们仍允许基于广泛的社会原因、健康原因或社会经济原因在之后进行合法堕胎。

Some countries, your honor, have a nominal line of twelve weeks or eighteen weeks, but they permit legal access to abortion after that point for broad social reasons, health reasons, socioeconomic reasons.

因此，它们的制度实际上并不具有可比性，而且它们也没有我们这里存在的那种障碍。

So their regimes really aren't comparable, and they also don't have the same type types of barriers that we have here.

如果法院大幅提前时间线，而十五周比胎儿具备存活能力的时间早了九周，尊敬的法官，这确实大幅提前了，那么法院可能需要重新审视有关监管的规定，因为如果将获得堕胎的时间大致缩短一半，这些障碍的重要性就会大大增加。

So if the court were to move the line substantially backwards and fifteen weeks is nine weeks before viability, your honor, it's quite a bit backwards, It may need to reconsider the rules around regulations because if it's cutting the time period to obtain an abortion roughly in half, then those barriers are gonna be much more important.

谢谢。

Thank you.

里克勒曼女士，我有一个关于安全港法律的问题。

Miss Rickleman, I have a question about the safe haven laws.

因此，原告指出，在全部50个州，人们都可以通过放弃孩子来终止父母权利，而我认为最短的期限可能是48小时，如果我没记错的话。

So petitioner points out that in all 50 states, can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been forty eight hours if I'm remembering the data correctly.

因此，在这种视角下，罗伊案和凯西案都强调了为人父母的负担。

So it it seems to me seen in that light, both Roe and Casey emphasized the burdens of parenting.

而您和许多您的法庭之友所关注的，是强制为人父母、强制成为母亲如何阻碍女性获得工作机会和平等机会。

And in so far as you and many of your Amiki focus on the ways in which the forced parenting, forced motherhood would hinder women's access to the workplace and to equal opportunities.

这也聚焦于怀孕所带来的为人父母的后果和母亲义务。

It's also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.

那么，安全港法律为何不能解决这个问题呢？

Why don't the safe haven laws take care of that problem?

在我看来，这似乎将负担更加集中地限定在了特定范围内。

It seems to me that it focuses the burden much more narrowly.

毫无疑问，这侵犯了身体自主权，就像我们在疫苗等其他情境中所看到的那样。

There is without question an infringement on bodily autonomy, you know, which we have another context like vaccines.

然而，在我看来，怀孕和随后的为人父母并不构成同一种负担。

However, it doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden.

因此，在我看来，更聚焦的选择是：在二十三周时获得堕胎的权利，还是由国家要求女性再继续妊娠十五到十六周，然后在分娩后终止亲权。

And so it seems to me that the choice more focused would be between, say, the ability to get an abortion at twenty three weeks or the state requiring the woman to go fifteen, sixteen weeks more and then terminate parental rights at the conclusion.

您为什么没有讨论收养法？为什么它们不重要？

Why why didn't you address the safe haven laws, and why don't they matter?

我认为它们不重要，原因有几点，法官大人。

I I think they don't matter for a couple of reasons, your honor.

首先，即使这些法律中有些是在凯西案之后才出现的，但女性可以将孩子送养这一事实，自罗伊案以来就一直存在。

First, even if some of those laws are new since Casey, the idea that a woman could place a child up for adoption has, of course, been true since Roe.

因此，这是法院在审理这些案件并坚持胎动标准时已经考虑过的问题。

So it's a consideration that the court already had before it when it decided those cases and adhered to the viability line.

但此外，我们关注的不仅仅是为人父母的负担，罗伊案和凯西案也没有仅限于此。

But in addition, we don't just focus on the burdens of parenting, and neither did Roe and Casey.

相反，怀孕本身是独特的。

Instead, pregnancy itself is unique.

它给女性带来了独特的身体负担和风险，实际上影响了她们生活的方方面面，包括照顾其他孩子和其他家庭成员的能力，以及工作的能力。

It imposes unique physical demands and risk on women, and in fact has impact on all of their lives and their ability to care for other children, other family members, on their ability to work.

特别是在密西西比州，这些风险高得令人担忧。

And in particular in Mississippi those risks are alarmingly high.

在密西西比州，分娩的危险性是孕前堕胎的75倍，而这些风险对有色人种女性的生命构成了不成比例的威胁。

It's 75 times more dangerous to give birth in Mississippi than it than it is to have a pre viability abortion, and those risks are disproportionately threatening the lives of women of color.

所以您的意思是，据我理解，罗伊案和凯西案并没有太多谈及收养问题。

So are you saying I I mean, actually, as I read Roe and Casey, they don't talk very much about adoption.

它只是顺带提及，意味着免除为人父母的义务。

It's a passing reference that that means out of the obligations of parenthood.

但根据我听到的回答，您是否在说，您所理解的这项权利主要基于生育和怀孕的过程，而不是更多地着眼于对职业机会和工作生活造成的后续影响？

But as I hear this answer, then are you saying that it the right as you conceive of it is grounded primarily in the bearing of the child and the carrying of pregnancy and not so much looking forward into the consequences on professional opportunities and work life and

经济负担？

economic burdens?

不，法官大人。

No, your honor.

我认为两者都是，这正是凯西案所表述的方式。

I believe it's both, and and that is exactly how Casey talked about it.

它提到了支持这一权利的两类案例。

It talked about the two strands of cases that supported the right.

一类是支持身体完整性的案例，引用了克鲁赞案和里格斯诉内华达州案。

One was the strand of cases supporting bodily integrity, and it cited to cases like Cruzan and Riggins versus Nevada.

另一类是支持决策自主权的案例，特别是涉及生育、婚姻和生育决定的案例，如格里斯沃尔德案和洛文案。

And the second was the strand of cases supporting decisional autonomy and specifically decisions related to childbearing, marriage, and procreation decisions like Griswold loving.

因此，我们在这里所依赖的正是这两类法理。

And so it's really both strands that we're relying on here.

法官大人，我可以问您一个关于遵循先例的问题吗？

May I ask you a question about stare decisis, counsel?

您的对方律师强调，凯西案否定了罗伊案的 trimester 框架，代之以不当负担标准。

Your your colleagues on the other side have emphasized that Casey rejected Roe's trimester framework and replaced it with an undue burden standard.

他们认为，在此之前，不当负担标准在法律中并不为人所熟知。

They argue that the undue burden standard was not well known to the law before that.

然后他们辩称，不当负担标准随着时间的推移也发生了变化，法院在这一点上难以达成一致。

And and then they argue that the undue burden standard has evolved over time too in ways that the court has found difficult to agree upon.

例如，在Hellerstedt案中，他们在其简报中指出，法院似乎暗示法院应当同时考虑拟议限制所带来的益处和负担。

In Hellerstedt, for example, they they point out in their briefs that, the court seemed to suggest that a court should consider both the benefits and the burdens associated with the, proposed restriction.

在最近的June Medical案中，法院在这一相同问题上出现了分歧，即是否可以考虑益处，还是只能考虑负担。

In June Medical, more recently, the court splintered on on on that same question, whether benefits could be considered or only burdens.

因此，他们的论点是，抛开本案中其他显然困难的问题不谈，这一标准本身在适用上已被证明存在困难，这一点与遵循先例的分析相关。

And so the argument goes that this has proved to be, putting aside all the other, obviously difficult questions in the case, that that that the standard itself has proved difficult to administer and that that is relevant to the staur de cisis analysis.

我只是想给您一个机会作出回应。

And I just wanted to give you an opportunity to respond.

是的，法官大人。

Yes, your honor.

我想提出的第一个观点是，不当负担标准在本案中并未成为争议焦点。

The first point I'd like to make is the undue burden test is not at issue in this case.

这是适用于法规而非禁令的测试标准，而州政府已承认这是一项禁令。

That is the test that applies to regulations, not prohibitions, and the state has conceded that this is a prohibition.

事实上，这项法律的标题就是《禁止15周后堕胎法案》。

In fact, that's the title of this law is an act to prohibit abortion after fifteen weeks.

本案唯一争议点是胎儿存活能力界限，而这条界限一直具有持久的可操作性。

And the only thing that's at issue in this case is the viability line, and the viability line has been enduringly workable.

联邦下级法院五十年来始终如一地统一适用该标准，第五巡回法院在此案中毫无困难地以3比0全票否决了这项法律。

The lower federal courts have applied it consistently and uniformly for fifty years, and the fifth circuit here below had no difficulty striking down this law unanimously three zero.

因此，这是一个极其可行的标准。

So it's been an exceedingly workable standard.

首席大法官，请允许我回到您的问题，合理可能性标准将是不可行的。

And if I may return to your question, chief justice, a reasonable possibility standard would not be workable.

这最终会演变成一种论点，即各州可以禁止某一类女性行使宪法权利，仅仅因为该类别人数众多，但这绝非宪法权利的运作方式。

It would ultimately boil down to an argument that states can prohibit a category of women from exercising a constitutional right merely because of the number of people in the category, and that's just not how constitutional rights work.

例如，一个州绝不会声称可以禁止周三晚上的宗教仪式，仅仅因为大多数人可以在本周其他晚上参加宗教活动。

A state would never say that it could ban religious services on a Wednesday evening, for example, simply because most people could attend religious services on another night of the week.

所以，我其实只是想说，这很有帮助，我认为。

So I I actually just wanted to that that that's helpful, I think.

我只是想确认我理解正确了，律师，如果法院在本案中越过胎动线，将不当负担标准应用于胎动前的监管措施，您会同意对方的观点，我认为，这并不是一个可行的标准。

I just wanna make sure I understand what you're telling me, counsel, that that if the court were to, in this case, step past viability and apply undue burden, the undue burden test to, regulations prior to viability, you would agree with the other side, I I think, that that's not a workable standard.

这是您对法院所表达观点的公正理解吗？

Is is that is that a fair understanding of what you're you're telling the court?

不，法官大人。

No, your honor.

我认为

I I believe

您认为这会可行吗？

Do think that would be workable?

我认为，如果允许我澄清一下，我认为不当负担标准对于监管措施是可行的，

I believe if I may clarify, I believe the undue burden test has been workable for regulations that

它是

it was

我明白这一点。

I I understand that.

如果法院要适用——我认为您是在回应首席大法官时表达这个意思，但也许我理解错了。

If it were to apply, if the court were to and I thought this is what you were saying in response to the chief justice, but maybe I'm mistaken.

如果我理解错了，请纠正我。

Please correct me if I am.

但您反对在胎儿具备存活能力之前适用不当负担标准的理由是什么？

But what is your argument against applying the undue burden standard prior to viability?

如果按照本院在凯西案中确立的不当负担标准，该标准包含了存活能力线——不。

If the undue burden standard as this court laid out in Casey, which includes the viability line No.

不。

No.

我问的是——我知道我们现在是在讨论一个假设性问题，律师。

I'm asking I know I know we're we're fighting the hypothetical here, counsel.

明白了吗？

Alright?

接受这个假设。

Accept the hypothetical.

假设法院将不当负担标准扩展至妊娠存活前的监管措施。

Hypothetically, the court were to extend the undue burden standard to regulations prior to viability.

在您看来，这是否可行，还是不可行？

Would that be workable, or would that not be workable in your view?

如果没有存活标准，那就不可行，法官大人，因为这最终仍会归结为一种主张，即各州仅因某类人群的数量而禁止他们行使这项权利。

Without viability, would not be workable, your honor, because it would ultimately, again, always come down to a claim that states can bar a certain category of people from exercising this right simply because of the number of people in the category.

这不是一个可行的标准，也不是一项宪法性的标准。

And that's not a workable standard, and it's not a a constitutional

感谢您的澄清。

I appreciate that clarification.

谢谢。

Thank you.

就此进一步跟进一下。

Just to follow-up on that.

我阅读了你们的简报，理解为我们的唯一真正选择是维持罗伊案和凯西案的现状，或者彻底推翻它们。

I read your briefs your brief to say that the only real options we have are to reaffirm Roe and Casey as they stand or to overrule them in their entirety.

你们说，‘这里没有折中方案。’

You say that, quote, there are no half measures here.

这是对你们简报的正确理解吗？

Is that a correct understanding of your brief?

大法官，我们回应的确实是州方提出的论点，即州方的所有论点，包括它们的替代方案——即在没有胎龄标准下的不当负担——都等同于推翻凯西案和罗伊案，因为胎龄界限是这两个案件的核心判决。

Your honor, it's certainly, the arguments that the state has presented is what we're responding to there, which is that all of the state's arguments, including their alternatives, which are undue burden without viability, would be the equivalent of overruling Casey and Roe because the viability line is the central holding of those cases.

凯西案中至少提到了19次胎龄界限，而最高法院在一年前的《六月医疗案》中也确认，胎龄界限是凯西案和罗伊案的核心所在。

Casey mentioned it no fewer than 19 times, and and the court in June Medical just a year ago affirmed that the viability line is the central holding of both Casey and Roe.

但你们确实强调，法院在罗伊案中划定了胎龄界限，并在凯西案中重申了这一点，这确实是我们必须认真考虑的重要因素。

But you you do emphasize that the court drew the line at viability Roe and reaffirmed that in Casey, and that is certainly something that we have to take very seriously into consideration.

但假设我们现在首次考虑这个问题。

But suppose we were considering that question now for the first time.

我相信，关于胎龄界限的论点，您比我更了解，甚至可能比我更透彻。

I'm sure you know the arguments about the viability line as well as I do probably better than I do.

您会如何为这条界限辩护？

What would you say in defense of that line?

您会如何回应那些多次被支持堕胎和反对堕胎的人提出的论点，即这条界限根本没有意义，正如布莱克曼大法官自己所描述的那样，它是任意的？

What would you say to the argument that has been made many times by people who are pro choice and pro life that the line really doesn't make any sense, that it is, as justice Blackman himself described it, arbitrary.

如果一位女性希望摆脱怀孕的负担，这种利益并不会在 viability 界限被跨越的那一刻消失。

The the woman's if a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed.

这难道不是事实吗？

Isn't that right?

不是的，法官大人。

No, your honor.

如果允许我针对您的问题提出几点看法。

And if I may make a few points to answer your question.

首先，我认为州政府将 viability 视为任意的，因为它完全忽视了女性的利益。

First, I think the state views viability as arbitrary because it completely discounts the woman's interest.

但 viability

But viability

但当女性达到胎龄可存活点时，她难道没有和之前相同的、摆脱她不再想要的妊娠的权益吗？

But does a woman have does upon reaching the point of viability, does not the woman have the same interest that she had before viability in being free of this pregnancy that she no longer wants to continue?

胎龄可存活点是一个有原则的界限，法官大人，因为在安排

Viability is a principled line, your honor, because in ordering the

以判断它是否是一个有原则的界限。

insurance to see whether it is a principled line.

至少在这一点上，您同意我的观点：即使在胎龄可存活点之后，女性仍然拥有终止妊娠的相同权益吗？

You agree with me at least on that point that a woman still has the same interest in terminating her pregnancy after the viability line has been crossed?

是的，法官大人。

Yes, your honor.

但法院权衡了这一权益。

But the court balanced the interest.

并在安排权益权益

And in ordering the interest interest

在另一方。

on on the other side.

胎儿有生存的利益，这种利益从孕早期到具备存活能力后并不会改变，对吧？

The the fetus has an interest in having a life, and that doesn't change, does it, from the point before viability to the point after viability?

在某些人看来，确实如此，大法官，但法院认为，这些哲学上的分歧无法在

In some people's view, it doesn't, your honor, but what the court said is that those philosophical differences couldn't be resolved in

一种方式

a way

我正是这个意思。

that what I'm that's what I'm getting at.

哲学论点是什么？

What is the philosophical argument?

支持这一界限是恰当的世俗哲学论据是什么？

The secular philosophical argument for saying this is the appropriate line.

有些人认为，人格权应当在胎儿具备某些独立特征时确立，但存活能力取决于医疗技术和医疗实践。

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.

它已经改变了。

It has changed.

它可能还会继续变化。

It may continue to change.

不，

No,

大法官。

your honor.

这是有原则的，因为法院在权衡所涉利益时，必须在受孕和出生之间划定一条界限，而它合乎逻辑地将胎儿能否独立生存作为法律界限，因为这一标准是客观可验证的，无需法院解决所涉的哲学问题。

It is principled because in ordering the interest 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.

我想稍微聚焦一下遵循先例。

I just wanna focus on stare decisis for a little bit.

我发现我的同事布雷耶大法官的评论非常有说服力。

I found my colleague, justice Breyer's, comments, quite compelling.

我不太确定这些观点在‘凯西案’中是如何体现的。

I'm not quite sure how they're they play out, in in Casey.

我们确实不能根据公众是否支持来做出我们的判决。

It is certainly true that we cannot base our decisions on whether they're popular or not, with the people.

Casey案似乎表明，我们不仅不应基于是否受欢迎来做决定，还应考虑判决是否看起来受欢迎。

Casey seemed to say we shouldn't base our decisions not only on that, but whether they're going to whether they're gonna seem popular.

这在我看来得出了一个悖论性的结论：判决越不受欢迎，法院就越应坚定地不偏离先前的判例。

It and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the court should be in not departing, from prior precedent.

这简直是一种超级判例原则。

It's sort of a super decisis.

但这种超级遵循先例原则，却适用于那些被许多人视为最错误的判决。

But it's super stare decisis for what are regarded as, by many, as the most erroneous decisions.

您认为存在这样的类别吗？

Do you think there is that category?

是存在这样的类别，还是只是普通的遵循先例？

Is there or is it just normal stare decisis?

我认为这是前所未有的先例，法官大人，因为Casey案已经对Roe案进行了遵循先例的分析。

I think it is precedent unprecedented, your honor, because Casey did the stare decisis analysis for Roe.

因此，本法院面前的问题是，该遵循先例的分析是否明显错误。

So the question before this court is whether that stare decisis analysis was egregiously wrong.

如果我可以回答您之前关于妊娠存活能力是否在凯西案中明确成为争议点的问题，答案是明确的，法官大人，它确实是。

And if I may answer your earlier question about whether viability was squarely at issue in Casey, it clearly was, your honor.

在第869至871页，法院明确讨论了妊娠存活能力，因为政府曾提出论点认为妊娠存活能力

At pages eight sixty nine to eight seventy one, the court squarely addressed viability because the government had made the argument that viability

这是一种仲裁。

is an arbitration.

凯西案确实涉及了这一点，但这与说它是一个争议点是不同的。

That Casey addressed it, but that's different than saying it was an issue.

它指出，妊娠存活能力是罗伊案的核心原则，因为在其处理完其他所有问题后，这几乎是唯一剩下的内容。

It said it was the central central principle of Roe because it was pretty much all that was left after they were done dealing with the rest of it.

而凯西案中的监管措施，其适用性并不取决于妊娠存活能力的具体位置。

And the regulations in Casey, had had no applicability or not depending upon where viability was.

它们在整个阶段都适用，仅此而已。

They applied throughout the whole range, period.

因此，如果他们对妊娠存活能力没有发表任何意见，就像布莱克曼大法官在与同事讨论时所说的那样——过早发布意见书的一个充分理由是，他们在罗伊案中根本不必处理界限划分问题，在凯西案中也同样不必处理。

So if they didn't say anything about viability, it's like what justice Blackman said in when discussing among his colleagues, which is a good reason not to have papers out that that early, is that, they don't have to address the line drawing at all in Roe, and they didn't have to address the line drawing at all, in Casey.

我不同意您的观点，法官大人，因为不当负担测试包含了胎儿存活能力这一界限。

I disagree with that, your honor, because the undue burden test incorporates the viability line.

法院当时正是以此为标准来评估这些规定是否在胎儿存活能力之前对女性造成了重大障碍。

That was what the court was assessing the regulations against whether they imposed a substantial obstacle in the path of a woman before viability.

如果像这项法律这样的禁令都不构成重大障碍，那就没有什么能算得上了。

And if a prohibition like this law isn't a substantial obstacle, then nothing would be.

因此，这个问题明确地摆在了法院面前。

So the issue was squarely before the court.

事实上，法院在第879页指出，在采用不当负担测试时，并未动摇胎儿存活能力的界限。

And in fact, the court said at page eight seventy nine that in adopting the undue burden test, it was not disturbing the viability line.

这是一个非常有趣的问题，我认为巴雷特大法官也提到了。

Well, it's a very interesting question that I think justice Barrett raised too.

这通常只是哲学层面的讨论，但我认为在这里它具有实际意义。

It's usually just philosophical, but I think it has bite here.

当我阅读凯西案时，它并不是简单的‘一对一’关系，你知道的，‘二大于一’。

When I read Casey, it's not just one on one, you know, two is greater than one.

是的。

Yeah.

凯西案加上罗伊案大于。

Casey plus Roe is greater than.

他们想表达的是，我们作为一个机构，可能比上诉法院或地区法院更为重要。

It it's they're making a point that that that we're an institution perhaps more than a court of appeals or a district court.

这是汉密尔顿的观点。

It's Hamilton's point.

没有财政权。

No purse.

没有武力。

No sword.

然而，我们必须获得公众的支持。

And yet we have to have public support.

而凯西案指出，这种支持主要来自。

And that comes primarily, says Casey.

我不知道是不是奥康纳写的这段话。

I wonder if it was O'Connor who wrote that.

我不知道。

I don't know.

但这种支持主要来自于人们相信我们尽职尽责。

But it comes primarily from people believing that we do our job.

我们运用理性。

We use reason.

我们不只看什么流行，而这正是你的矛盾之处。

We don't look to just what's popular, and that's where you're the paradox.

但关于我们刚才提到的三个超级案件，这类超级案件的问题在于——那些罕见的、具有里程碑意义的案件，双方都激烈对立、激烈争斗——人们会立刻说：不，你们只是政治性的。

But the problem with the super case of which we've heard three mentioned, the problem with the super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they're gonna be ready to say, no, you're just political.

你们只是政客。

You're just politicians.

而这正是摧毁我们作为美国制度的根本原因。

And that's what kills us as an American institution.

这就是他们所说的。

That's what they're saying.

所以我们正在从这个角度审视，但我们也正在关注。

So we're looking at it for that, but we are looking to.

而他们说，这就是原因。

And that, they say, is a reason why.

当遇到这样的案件时，你必须非常确定，遵循先例的原则——即稳定性和可预测性——确实充分存在，甚至加倍、三倍、四倍，然后他们才会去证明这些条件并不存在。

A reason why when you get a case like that, you better be damn sure that the normal starry considerations, starry decisis overruling is, are really there in spades, double, triple, quadruple, and then they go through and show they're not.

明白吗？

Okay?

悖论是什么？

What's the paradox?

也许你觉得我刚才只是在论证根本不存在什么悖论，但事实上，我心里并不确定。

Maybe you think I've just made an argument that there isn't one, but really, in my head, I'm thinking I'm not sure.

可能确实存在一个悖论。

There may be one.

我不确定你是否曾经思考过这一点。

And I don't know if you've ever thought about this.

我不确定你是否曾经想过，当这种情况发生时，我不希望法院推翻凯西案中关于遵循先例的部分，你是这么说的。

I don't know if you've ever if when when when that occurred to you, I don't wanna overrule the starry I wouldn't want the court to overrule the starry decisive section of Casey, you say.

这正是被提出来的问题，也许我还没表达得更清楚，但我已经尽力了。

And that that's what that's what I think is being brought up, and maybe I haven't made it clearer, but I've tried to.

法官大人。

Your honor.

我认为法院的观点是，某些州即使在法院判例的反对下仍继续制定法律，这从来不足以成为推翻判例的理由，这一点适用于法院发布的多项判决。

I think the point that the court was making was that the fact that some states may continue to enact laws in the teeth of the court's precedent has never been enough of a reason to overrule, and that's true for a number of decisions that the court has issued.

有些人继续反对这些判决，并不能成为抛弃这些判例的理由。

The fact that some people continue to disagree with them is not a basis to discard that precedent.

托马斯大法官，还有其他问题吗？

Justice Thomas, anything further?

回到我最初的问题。

Back to my original question.

如果我问你，我知道你在这里关注的是堕胎问题。

If I were I know your interest here is in abortion.

我明白。

I understand that.

但如果我问你，保护堕胎权的宪法权利是什么？是隐私权吗？

But if I were to ask you what constitutional right protects the right to abortion, is it privacy?

是自主权吗？

Is it autonomy?

那到底是什么？

What would it be?

是自由，法官大人。

It's liberty, your honor.

这是第十四修正案中明确规定的保护，即国家不得在没有正当法律程序的情况下剥夺任何人的自由，而法院已将自由解释为包括做出家庭决策的权利和身体自主权，包括终止孕前胎儿的权利。

It's the textual protection in the fourteenth amendment that a state can't deprive a person of liberty without due process of law, and the court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre viability pregnancy.

所以是以上所有吗？

So it's all of the above?

嗯，法院一个多世纪以来一直这样解释自由条款，从迈耶案、格里斯沃尔德案、卡里案、洛文案到劳伦斯案都是如此。

Well, the court that's how the court has interpreted the liberty clause for over a hundred years in cases going back to Meyer, Griswold, Carrie, Loving, Lawrence.

是的。

Yeah.

但这些案例其实都源自洛克纳案。

But, I mean, all of those sort of just come out of Lochner.

所以我们已经舍弃了其中一部分。

The so it's the we we've dropped part of it.

我明白你的意思，但我想强调的是，如果我们能降低抽象程度，或者至少更具体一点的话。

So I understand what you're saying, but what I'm trying to focus on is if we is to lower the level of generality or at least be a little bit more specific.

过去，我们常说法院在正当程序条款中找到了隐私权。

In the old days, we used to say it was a right to privacy that the court found in the due process substantive due process clause.

明白吗？

Okay?

或者说是实质性的正当程序。

So or in substantive due process.

我正试图让你告诉我，我们现在依赖的是什么。

And I'm trying to get you to tell me what are we relying on now.

是隐私吗？

Is it privacy?

是自主权吗？

Is it autonomy?

到底是什么？

What is it?

我认为这仍然是自由，无论法院适用何种概括程度，这项权利都存在。

I think it continues to be liberty, and the right exists whatever level of generality the court applies.

几个世纪以来，普通法传统一直允许女性终止妊娠。

There was a tradition under the common law for centuries of women being able to end their pregnancies.

此外，当涉及家庭、婚姻和生育的决定时，法院一直以更高的概括程度进行分析，这是有道理的，因为否则宪法将强化对女性的历史性歧视。

But in addition, when it comes to decisions related to family marriage and childbearing, the court has done the analysis at a higher level of generality, and that makes sense because otherwise the constitution would reinforce the historical discrimination against women.

谢谢。

Thank you.

拜尔大法官？

Justice Byer?

阿利托大法官？

Justice Alito?

您刚刚提到了普通法。

Well, you just mentioned the common law.

那么，让我问您几个关于历史的问题。

So let me ask you a couple of questions about history.

在1868年第十四修正案通过时，有任何州宪法条款承认堕胎是一种权利、自由或豁免吗？

Did any state constitutional provision recognize that abortion was a right liberty or immunity in 1868 when the fourteenth amendment was adopted?

没有，法官大人。

No, your honor.

但多年来，堕胎在普通法下一直是被允许的。

But it had been allowed under the common law for many years.

当时或1868年之后不久，有任何司法判决承认堕胎是一种权利、自由或豁免吗？

Does any judicial decision at that time, or shortly or immediately after 1868 recognize that abortion was a right liberty or immunity.

在那之前不久，有一些州最高法院的判决，讨论了女性在胎动前终止妊娠的能力，大法官。

There were state high court decisions shortly before then, your honor, talking about the ability of women to end a pregnancy before quickening.

您最好的案例是什么？

What's your best case?

关于终止妊娠的权利，大法官？

For the right to end a pregnancy, your honor?

嗯。

Mhmm.

允许国家控制女性的身体，强迫她承受怀孕的生理负担、风险和改变人生的结果，是对她自由的根本剥夺。

Allowing a state to take control of a woman's body and force her to undergo the physical demands, risks, and life altering consequences of pregnancy is a fundamental deprivation of her liberty.

一旦法院承认这种自由利益值得加强保护，就必须划定一条可操作的界限，而胎龄界限在逻辑上平衡了所涉及的利益。

And once the court recognizes that that liberty interest deserves heightened protection, it does need to draw a workable line, and viability is a line that logically balances the interest at stake.

美国历史协会的简报指出，在第十四修正案通过时，37个州中有26个州在胎动前并不允许堕胎。

The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the fourteenth amendment was adopted.

这是正确的吗？

Is that correct?

是的，没错。

That is correct.

因为当时一些州已经开始摒弃普通法，原因是存在一种歧视性的观点，认为女性的适当角色是妻子和母亲，而这种观点如今已被宪法所否定，因此有必要在更高的概括层面上进行历史分析。

Because some of the states had started to discard the common law at that point because of a discriminatory view that a woman's proper role was as a wife and mother, a view that the constitution now rejects, and that's why it's appropriate to do the historical analysis at a higher level of generality.

对。

Right.

面对这种情况，还能说堕胎权深深植根于美国人民的历史和传统之中吗？

In the face of that, can it be said that the right to to abortion is deeply rooted in the history and traditions of the American people?

是的。

Yes.

可以的，法官大人。

It can, your honor.

同样，在建国时期，女性在普通法下有权终止妊娠。

Again, at the founding, women were able to end their pregnancy under the common law.

事实上，本院在格鲁克斯伯格案中明确将凯西案视为基于历史和传统作出的判决。

And in fact, this court in Glucksburg specifically decide discussed Casey as a decision based on history and tradition.

在注释19中特别指出并依赖了罗伊案的结论，即在建国时期及整个19世纪，女性有能力终止妊娠。

And at note 19 specifically called out and relied on Roe's conclusion that at the time of the founding and well into the eighteen hundreds, women had the ability to end a pregnancy.

罗伊案中法院进行历史分析所依赖的主要资料来源是什么？

What was the the principal source that the court relied on in Roe for its historical analysis?

那篇文章的作者是谁？

Who was the author of that that article?

对不起，法官大人。

I apologize, your honor.

我不记得作者是谁了。

I don't remember the author.

我知道法院在判决书中用了许多页篇幅进行了历史分析。

I know that the court spent many pages of the opinion doing a historical analysis.

此外，还有若干重要的美国历史学家协会提交的简报，详细梳理了这段历史，因为现在有更多证据支持罗伊案的法律结论。

There's also a brief on behalf of, several key American historian associations that go through that history in detail because there's even more information now that supports Roe's legal conclusions.

好的。

Alright.

谢谢。

Thank you.

我认为对方会说，这里的核心问题是，法院因你们所持的立场以及相关判例，被迫在美国家最富有争议的社会议题上选边站队，而法院自己也承认，宪法在堕胎问题上是中立的，宪法的文本和历史都表明它既不支持生命权，也不支持选择权。

I think the other side would say that the core problem here is that the court has been forced by the position you're taking and by the the cases to pick sides on, the most contentious social debate in American life and to do so in a situation where they say, that the constitution is neutral on the question of abortion, the text in history, that the constitution's neither pro life nor pro choice on the question of abortion.

他们会说，因此，这个问题应交由人民、各州或国会来决定。

And they would say, therefore, it should be left to the people, to the states, or or to congress.

我认为他们还会进一步指出，既然宪法是中立的，那么本院在堕胎问题上也应严格保持中立，既不支持选择权，也不支持生命权。

And I think they also then continue because the constitution is neutral that this court should be scrupulously neutral on the question of abortion, neither pro choice nor pro life.

但由于他们认为宪法并未赋予我们这一权力，我们应将此问题交由各州处理，并在这一问题上严格保持中立。

But because they say the constitution doesn't give us the authority, we should leave it to the states, and we should be scrupulously neutral on the question.

我认为他们在这里想表达的是，我们应当回归到对这一富有争议的社会议题保持中立的立场，而不是继续在这一问题上选边站队。

And that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.

所以，我认为从宏观层面来看，这就是他们的论点。

So I think that's, at a big picture level, their argument.

我想给你一个机会回应这一点。

I want to give you a chance to respond to that.

是的。

Yes.

法官大人，容我提出几点意见。

A few points, if I may, your honor.

首先，当然，这些相同的论点在凯西案中已经提出过，但法院驳回了它们，认为这种哲学上的分歧无法以剥夺女性选择权的方式来解决。

First, of course, those very same arguments were made in Casey, and the court rejected them saying that this philosophical disagreements can't be resolved in a way that a woman has no choice in the matter.

其次，我认为这并不是一个中立的立场。

And second, I don't think it would be a neutral position.

宪法保障了自由权。

The constitution provides a guarantee of liberty.

法院已将这种自由解释为包括与生育、婚姻和家庭相关的决策权。

The court has interpreted that liberty to include the ability to make decisions related to child childbearing, marriage, and family.

法官大人，女性在宪法下享有平等的自由权。

Women have an equal right to liberty under the constitution, your honor.

如果她们无法做出这一决定，如果各州可以掌控女性的身体，强迫她们经历数月的怀孕和分娩，那么她们将永远无法在宪法下获得平等地位。

And if they're not able to make this decision, if states can take control of women's bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the constitution.

我想问一个关于遵循先例的问题，并思考如何在这里处理这个问题，因为已经有很多问题围绕着巴雷特大法官和其他人的提问展开。

And I want to ask a question about stare decisis and to think about how to approach that here because there have been lots of questions picking up on Justice Barrett's questions and others.

历史是有帮助的。

And history helps.

请从我所理解的遵循先例以及法院适用遵循先例的历史角度来思考。

Think about stare decisis as I've looked at it and the history of how the courts applied stare decisis.

当你深入探究时，历史所揭示的故事，我认为，与人们通常所假设的有所不同。

And when you really dig into it, history tells a somewhat different story, I think, than is sometimes assumed.

想想那些在本院历史上最重要、最具影响力的案件。

Think about some of the most important cases, the most consequential cases in this court's history.

有一系列案件推翻了先前的判例。

There's a string of them where the cases overruled precedent.

布朗诉教育委员会案废除了‘隔离但平等’的政策。

Brown v board outlawed separate but equal.

贝克诉卡尔案为‘一人一票’原则奠定了基础。

Baker versus Carr, which set the stage for one person, one vote.

西海岸酒店案，确认了各州监管商业的权力。

West Coast Hotel, which recognized the state's authority to regulate business.

米兰达诉亚利桑那案，要求警方在对刑事拘留的嫌疑人进行讯问时，告知其保持沉默和获得律师协助的权利。

Miranda versus Arizona, which required police to give warnings when the right to about the right to remain silent and to have an attorney present to suspects in criminal custody.

劳伦斯诉德克萨斯案指出，州政府不得禁止同性性行为。

Lawrence v Texas said that the state may not prohibit same sex conduct.

马普诉俄亥俄案裁定，排除规则适用于州刑事诉讼，以排除违反第四修正案获得的证据。

MAP versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the fourth amendment.

吉迪恩诉温赖特案保障了刑事案件中获得律师帮助的权利。

Gideon versus rain Wainwright, which guaranteed the right to counsel in criminal cases.

奥贝格费尔案确认了同性婚姻的宪法权利。

Obergefell, which recognized the constitutional right to same sex marriage.

在每一个这些案件中——这还只是列举一部分，我还可以继续列举——这些是最高法院历史上最重要、最具影响力的案件之一，法院都推翻了先例。

In each of those cases, and that's a list, and I could go on, and those are some of the most consequential and important in the court's history, the court overruled precedent.

事实证明，如果最高法院在这些案件中听取并接受了当时提出的论点，坚持遵循先例，那么在布朗案中维持普莱西案，在西海岸酒店案中维持阿特金斯案，在洛赫纳案中维持原判。

And it turns out, if the court in those cases had had listened and they were presented in our with arguments in those cases, adhere to precedent in Brown v Board, adhere to Plessy on West Coast Hotel, adhere to Atkins, and adhere to Lochner.

如果法院当年在这些案件中这么做了，你知道，这个国家现在会是完全不同的样子。

And if the court had done that in those cases, you know, this the country would be a much different place.

所以我假设，你同意我列出的那些案件中，法院推翻先例的大多数——如果不是全部的话。

So I assume you agree with most, if not all, the cases I listed there where the court overruled the precedent.

所以，关于遵循先例的问题是：为什么——我知道你不同意我接下来要说的‘如果’。

So the question, on stardocisis is why if and I know you disagree with what I'm about saying the if.

如果我们认为之前的先例严重错误，那么，为什么这些案件中法院的实践历史没有告诉我们，正确的做法其实是回归中立立场，而不是像其他所有案件那样坚持这些先例呢？

If we think that the prior precedents are seriously wrong, if that, why then doesn't the history of this court's practice with respect to those cases tell us that the right answer is actually to return to the position of neutrality and and not stick with those precedents in the same way that all those other cases didn't?

法官大人，仅仅因为认为先前的先例是错误的，从来不足以让本院推翻它，而当存在五十年的先例时，更不应在此处足够。

Because of con the view that a previous precedent is wrong, your honor, has never been enough for this court to overrule, and it certainly shouldn't be enough here when there's fifty years of precedent.

相反，法院一直要求某种特殊的正当理由，而州政府并未提出任何特殊理由。

Instead, the court has required something else, a special justification, and the state doesn't come forward with any special justification.

它提出的论点与法院在Casey案的遵循先例分析中已经考虑并驳回的完全相同，事实上，没有任何不同。

It makes the same exact arguments the court already considered and rejected in its stare decisis analysis in Casey, In fact, there is nothing different.

今天，女性对自己身体、生活和健康做出这一根本性决定的需求，并不比三十年前或五十年前更少。

There is no less need today than thirty years ago or fifty years ago for women to be able to make this fundamental decision for themselves about their bodies, lives, and health.

谢谢。

Thank you.

巴雷特大法官？

Justice Barrett?

我想问你一个跟进的问题。

I wanna ask you a follow-up question.

你知道，首席大法官在询问关于存活能力线，以及这是否是划定权利的正确界限。

You know, the chief was asking about the viability line and if that was the right place if that's the right line to draw.

那么，让我们暂时抛开先例原则的问题，假设有一个州宪法与第十四修正案的正当程序条款完全相同，而该州最高法院必须根据州宪法法律来决定堕胎权的范围。

So let's take it out of the question of stare decisis and imagine that there's a state constitution that's identical to the fourteenth amendment due process clause, and a state supreme court has to decide as a matter of state constitutional law what the scope of an abortion right is.

而第二孕期在二十七周结束。

And the second trimester ends at twenty seven weeks.

因此，该州最高法院表示，我们认为这项权利是绝对存在的，州政府在二十七周之前不得剥夺这项权利，之后则采用不当负担标准。

And so that state supreme court says, we think that the right exists, you know, in a in a an absolute sense that the state cannot take away the right up to twenty seven weeks, and then after that adopts an undue burden standard.

从基本原则来看，这条界限在宪法法上是否可以接受？

As a matter of first principles, is that line acceptable as a matter of constitutional law?

大法官，也许确实如此，但我认为本案的问题在于，在遵循先例的背景下，是否存在一条明显比胎龄标准更具原则性或更可操作的分界线。

Your honor, it it may be, but I think that the question in this case is whether a line is obviously more principled or obviously more workable than viability because of the stare decisis context.

我的意思是，这基本上就是罗伊案的框架，即三阶段划分。

Why I mean, that's the Roe framework, basically, the trimester.

如果你选定一个节点，比如第二孕期结束的二十七周，为什么这不可行呢？

Why wouldn't that be workable if you pick a line and say the end of the second trimester, twenty seven weeks.

进入第三孕期，国家的利益增强。

Third trimester, state's interests increase.

我不明白为什么二十七周比二十四周更难操作。

I don't understand why twenty seven weeks is less workable than twenty four.

我并不是想暗示它更难操作，大法官。

I'm not trying to suggest it is, your honor.

我试图表达的是，胎龄标准是一条具有原则性且可操作的分界线。

And what I was trying to suggest is that the viability line is a principled and workable line.

因此，要改变它，就必须提出一条明显更具原则性且更可操作的新标准，而法院所确立的这条标准实际上

So to change it, there would have to be a new line that's obviously more principled and more workable, and and the line that the court has drawn actually

但这是遵循先例。

But that's stare decisis.

我从基本原则的角度提问。

I'm asking as a matter of first principles.

从基本原则来看，胎 viability 线是有道理的，因为如果州宪法

As a matter of first principle, the viability line makes sense because if the con the state constitution

这说的是审慎判断。

is saying prudential judgment.

从基本原则来看，这并不是宪法所要求的，因为事实上，我们完全可以决定在第二孕期的第二十七周提供更强的保护。

It's not constitutionally required as a matter of first principles because, in fact, we could decide to be more protective in, say, twenty seven weeks into the second trimester.

您可以，法官大人，但胎 viability 线在考虑到自由保护时是有道理的，因为它源于女性抵抗国家对其身体控制的自由利益。

You could, your honor, but the the viability line makes sense given the protection for liberty because it comes from the woman's liberty interest in resisting state control of her body.

一旦法院承认了这一利益，它就需要像在第四和第五修正案等其他宪法情境中那样划定一条界限。

And once the court recognizes that interest, it does need to draw a line as it does in many other constitutional contexts like the Fourth and Fifth Amendment.

正如我提到的，胎 viability 线是有道理的，因为它关注胎儿能否独立生存，这是一个恰当的法律界限，因为它具有客观可验证性，且不涉及关于生命何时开始的哲学问题。

And the viability line, as I mentioned, makes sense because it focuses on the fetus' ability to survive separately, which is an appropriate legal line because it's objectively verifiable and doesn't delve into philosophical questions about when life begins.

谢谢，律师。

Thank you, counsel.

普雷拉格先生。

General Prelager.

首席大法官阁下，各位大法官，您好。

Mister chief justice, and may it please the court.

半个世纪以来，本院正确地承认，宪法保护女性在胎儿具备存活能力之前决定是否终止妊娠的基本权利。

For a half century, this court has correctly recognized that the constitution protects a woman's fundamental right to decide whether to end a pregnancy before viability.

这一保障——即国家不得强迫女性继续妊娠并生育——已引发重大的个人和社会依赖。

That guarantee that the state cannot force a woman to carry a pregnancy to term and give birth has engendered substantial individual and societal reliance.

推翻罗伊案和凯西案的现实影响将是严重而迅速的。

The real world effects of overruling Roe and Casey would be severe and swift.

近一半的州已经或预计将全面禁止堕胎，其中许多没有为强奸或乱伦提供例外情况。

Nearly half of the states already have or expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest.

那些无法长途跋涉数百英里以获得合法堕胎服务的女性，将被迫继续妊娠并生育，这对她们的身体、健康和人生轨迹将产生深远影响。

Women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health, and the course of their lives.