Petition for Writ of Certiorari — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

Supreme Court briefJun 15, 2020

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No. 19-___

IN THE

Supreme Court of the Anited States

THOMAS E. Doss, M.D., M.P.H., IN HIS OFFICIAL

CAPACITY AS STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, ez al.,

Petitioners,

Vv.

JACKSON WOMEN’S HEALTH ORGANIZATION,

ON BEHALF OF ITSELF AND ITS PATIENTS, ef al.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

LYNN FITCH

Attorney General of Mississippi

WHITNEY LIPSCOMB

Deputy Attorney General

PAUL E. BARNES

Counsel of Record

WILSON MINOR

Special Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 220

Jackson, Mississippi 39205-0220

(601) 359-4072

pbarn@ago.ms.gov

Counsel for Petitioners

June 15, 2020

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether all pre-viability prohibitions on elective

abortions are unconstitutional.

2. Whether the validity of a pre-viability law that

protects women’s health, the dignity of unborn children,

and the integrity of the medical profession and society

should be analyzed under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens.

3. Whether abortion providers have third-party

standing to invalidate a law that protects women’s

health from the dangers of late-term abortions.

(i)

PARTIES TO THE PROCEEDING

Petitioners are Thomas Dobbs, M.D., M.P.H., in his

official capacity as State Health Officer of the

Mississippi Department of Health, and Kenneth

Cleveland, M.D., in his official capacity as Executive

Director of the Mississippi State Board of Medical

Licensure.

Respondents are Jackson Women’s Health Organization, on behalf of itself and its patients, and

Sacheen Carr-Ellis, M.D., on behalf of herself and her

patients.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Fifth Circuit, No. 18-

60868, Jackson Women’s Health Organization v.

Dobbs, judgment entered December 13, 2019.

U.S. District Court for the Southern District

Mississippi, No. 3:18-cv-171, Jackson Women’s Health

Organization v. Dobbs, final judgment entered

November 20, 2018.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ........... eee

PARTIES TO THE PROCEEDING ......00

LIST OF ALL PROCEEDINGS ........

TABLE OF AUTHORITIES. .......0... eee

DECISIONS BELOW... eee eeeeeeeeeeeees

STATEMENT OF JURISDICTION...........00000..

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS ............. eee

INTRODUCTION ....00..e ee eceeeesseeececeeeeeeeeeeenees

A. Mississippi HB 1510........ 0... eee eeeeeeee ones

B. District court proceedings ................0ccce00

C. Fifth Circuit ruling .............. cc ceecccceceeeeeeees

REASONS FOR GRANTING THE WRIT.....

I. The Court should grant certiorari and

clarify that the right to a pre-viability

abortion is not absolute .................ccccceeees

A. “Viability” is not an appropriate standard for assessing the constitutionality

of a law regulating abortion................

B. Courts should consider a_ state’s

legitimate interests when assessing

previability abortion regulation..........

1. Maternal health .........

TABLE OF CONTENTS—Continued

2. Concern for the growing baby........

3. Protection of the medical profession and SOCICtY..............ccssecccnees

4. The standard for assessing a

state’s legitimate interests ............

II. The Court should grant certiorari to

decide whether abortion providers have

standing to challenge laws enacted to

protect their clients’ health ......................

A. The third-party-standing question is

properly before this Court...................

1. Third-party standing is an Article

TID issue... eeeeeseeeeeeceeeceeeeeeees

2. This Court should resolve the thirdparty-standing issue regardless ....

B. Litigants lack third-party standing

when their interests conflict with

third parties’ interests.............c.csseeeeee

III. This case is an ideal vehicle to resolve the

questions presented ..............ccccessscceeeeeceees

CONCLUSION ...... eee ceceeeessseeeeeeeeeeeeseeseeenees

APPENDIX

APPENDIX A: OPINION, Fifth Circuit

Court of Appeals (December 138, 2019)..........

APPENDIX B: ON PETITION FOR

REHEARING EN BANC, Fifth Circuit

Court of Appeals (January 17, 2020).............

TABLE OF CONTENTS—Continued

APPENDIX C: ORDER GRANTING PER-

MANENT INJUNCTION, District Court,

Southern District of Mississippi (November

20, 2018) ......ceeceesessesssssssssseseeesseeeesceeeceeeeeees

APPENDIX D: ORDER, District Court, Southern District of Mississippi (August 15, 2018)....

APPENDIX E: ORDER ON DISCOVERY,

District Court, Southern District of Mississippi

(May 15, 2018)................cccccssseceeeeceeeeeeceeeeeeeees

APPENDIX F: TEMPORARY RESTRAIN-

ING ORDER, District Court, Southern

District of Mississippi (March 20, 2018).......

APPENDIX G: Miss. Code Ann. § 41-41-191

Gestational Age ACt ...........cccccceseccceseecceeneseenes

APPENDIX H: DECLARATION OF

MAUREEN L. CONDIC, Ph.D., District

Court, Southern District of Mississippi

(August 3, 2018) ..............cccscssssssssesssssssnenaneees

Page

40a

56a

58a

62a

65a

TABLE OF AUTHORITIES

CASES Page(s)

Allen v. Wright,

468 U.S. 787 (1984)... eeeeeeeeeeeees 30

Bellotti v. Baird,

443 U.S. 622 (1979)... ceccccccsessesceeeeeeee 26

Bryant v. Woodall,

2017 WL 1292378

(M.D.N.C. Apr. 7, 2017) ..............ccccceceeeeees 4

Canfield Aviation, Inc. v. Natl

Transp. Safety Bd..,

854 F.2d 745 (5th Cir. 1988)................0008 32

City of Akron v. Akron Center for

Reproductive Health,

462 U.S. 416 (1988)... eeeeecsteesteeeseeeseees 3, 16

DaimlerChrysler Corp. v. Cuno,

547 U.S. 8382 (2006)...............:..:ceeeeeeeeeeeeees 29

Doe v. Bolton,

410 U.S. 179 (1978)... ceesssscescecceeeeeeeenees 15

Elk Grove Unified School District v. Newdow,

542 U.S. 1 (2004)... eeeeseeeeeees 31, 32, 33

Gonzales v. Carhart,

550 U.S. 124 (2007)... eecccccceeeeeeeeeees passim

Hamilton v. Scott,

97 So. 3d 728 (Ala. 2012)... 4,17, 18

Hormel v. Helvering,

312 U.S. 552 (1941)... ee eccccccceeeeeeeeenees 30

Hudak v. Gregory,

634 A.2d 600 (Pa. 19938)..............cccccceeeeeees 17

Vii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Majestic Star Casino, LLC,

716 F.3d 736 (3d Cir. 2013)... eee 32

Jackson Women’s Health Org. v. Currier,

349 F.Supp.3d 536 (S.D. Miss. 2018)....... 1

Jackson Women’s Health Org. v. Dobbs,

945 F.3d 265 (5th Cir. 2019).................006 1

June Medical Services, LLC, et al. v. Gee,

NO. 18-1328 .........cccccccccecessseeeeececceceeeeeeeseees 27, 28

Kowalski v. Tesmer,

543 U.S. 125 (2004)... eeesseeeeceeeeeees 28, 30

Lepelletier v. FDIC,

164 F.3d 37 (D.C. Cir. 1999)...............000. 32

Lexmark International, Inc. v. Static

Control Components, Inc.,

572 U.S. 118 (2014)... eececceceees 28, 29, 30

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992)... csscesessseereeseeeesens 29

McCorvey v. Hill,

385 F.3d 846 (5th Cir. 2004)............. eee 4

MKB Mgmt. Corp. v. Stenehjem,

795 F.3d 768 (8th Cir. 2015)... 3, 4, 18

New Orleans Depot Servs., Inc. v. Dir.,

Office of Worker's Comp. Programs,

718 F.3d 384 (5th Cir. 2013)........... ee 31

Planned Parenthood of Ind. & Ky., Inc.

v. Adams,

937 F.3d 973 (7th Cir. 2019)... ee 26

Vili

TABLE OF AUTHORITIES—Continued

Page(s)

Planned Parenthood of Ind. & Ky., Inc.

v. Box,

949 F.3d 997 (7th Cir. 2019)... 27

Planned Parenthood of Se. Pa. v. Casey,

BOS U.S. 833 (1992)... eecsseeeeeeeceeeeees passim

Roe v. Wade,

410 U.S. 118 (1978) oe ccceessnteeeeessees passim

Singleton v. Wulff,

428 U.S. 106 (1976)................0000008 27, 30, 32, 33

Smith v. Allwright,

321 U.S. 649 (1944)... eeeeseeseeeeeeeeees 6

Thornburgh v. American College of

Obstetricians and Gynecologists,

A476 U.S. 747 (1986)......... ccc cccecceeeceeeceeeeeeees 16

Tyler v. Judges of Court of Registration,

179 U.S. 405 (1900).............ccceseseseeeeeees 30

United States v. Brunner,

726 F.3d 299 (2d Cir. 2013)... eee 31

Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc.,

A454 U.S. 464 (1982)... ccc eeeeeseeeeeees 29, 31

Warth v. Seldin,

422 U.S. 490 (1975).......ccccesssscescecceeeeeeeenees 29

Webster v. Reproductive Health Servs.,

492 U.S. 490 (1989)... eeeeeeeee 4-5, 14, 16, 33

Whole Women’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016)... eeeeccceeeeee passim

Wiersma v. Maple Leaf Farms,

543 N.W.2d 787 (S.D. 1996) ................00605 17

TABLE OF AUTHORITIES—Continued

CONSTITUTION Page(s)

U.S. Const. art. IIT... eee 27, 28, 29, 30

U.S. Const. amend. XIV, § 1 .......... eee 1, 28

U.S. Const. amend. XIX ............eeeeeeeeeees 12

STATUTES

28 U.S.C. § 125401)... eeeeeeeesseseseeeeeeees 1

28 U.S.C. § 1292(a)(1)...... ee eeeeeeeeeeeeeeeeeees 1

28 U.S.C. $1381 oo. eeeesseeeeseessseeeeeeeeees 1

28 U.S.C. § 1848(a)(3).............cccsssesseseeeeeeeeees 1

Gestational Age Act (H.B. 1510), Miss.

Gen. Laws 2018, ch. 393 ..............ccccccceeees passim

Miss. Code Ann. 41-41-141 ..... ee 17

Miss. Code Ann. 41-41-1911 0.0... eee 6

OTHER AUTHORITIES

Brian D. Wassom, The Exception That Swallowed the Rule?: Women’s Professional

Corp. v. Voinovich and the Mental Health

Exception to Post-Viability Abortion Bans,

49 Case W. Res. L. Rev. 799 (1999).......... 23

C. Hammond, Recent advances in second

trimester abortion: an _ evidence-based

review, 200 Am. J. Obstet. Gynecol. 347... 22

D.M. Fergusson et al., Abortion in Young

Women and Subsequent Mental Health,

47 J. Child Psychology & Psychiatry 16

(QOOG).........cccccccessesssssseecececcseeeseeesecesesseeeens 23

».«

TABLE OF AUTHORITIES—Continued

Page(s)

E.M. Johnson, The Reality of Late-Term

Abortion Procedures, Charlotte Lozier

Institute (Jan. 20, 2015)... eee eens

J. Diedrich et al., Complications of Surgical

Abortion, 52 Clin. Obstet. Gynecol. 205

(C100)

J.M. Barrett, Induced Abortion: A Risk

Factor for Placenta Previa, 141 Am. J.

Obstet. & Gynecol. 769 (1981)..................

J.M. Thorp et al., Long-Term Physical and

Psychological Health Consequences of

Induced Abortion: Review of the Evidence,

58, Obstet. & Gynecol. Survey 67 (2003)....

J.R. Cougle et al., Depression Associated

with Abortion and Childbirth: A Long-

Term Analysis of the NLSY Cohort, 9

Med. Sci. Monitor 157 (2008) ...............c08

Khiara M. Bridges, Capturing the Judiciary:

Carhart and the Undue Burden

Standard, 67 Wash. & Lee L. Rev. 915

S. Singh, et al., Abortion Worldwide 2017:

Uneven Progress and Unequal Access,

Guttmacher Institute (2018), available at

https://(www.guttmacher.org/report/abort

1on-worldwide-2017F ..............ssseesssssessseeeees

H.M. Swingle et al., Abortion and the Risk

of Subsequent Preterm Birth: A System-

atic Review and Meta-Analysis, 54, J.

Reprod. Med. 95 (2009)..............ssseseceeeeeees

TABLE OF AUTHORITIES—Continued

Page(s)

Linda Bartlett, et al., Risk Factors for Legal

Induced Abortion-Related Mortality in

the United States, 103 Ob. & Gyn. 729

(QOO4). 0... cesessseeececceeeeensssseeeeers 8, 16, 21, 22

Maureen L. Condic, When Does Human Life

Begin? The Scientific Evidence and the

Term-inology Revisited, 8 U. St. Thomas

J. L. & Pub. Pol’y 44 (2018)........ 18

Mayo Clinic, Anaphylaxis (Sept. 14, 2019),

https://mayocl.in/2GYVJoOL ...............ceeeeees 23

P.K. Coleman, Abortion and Mental Health:

Quantitative Synthesis and Analysis of

Research Published 1995-2009, 199 Brit.

J. Of Psychiatry 180 (2011)... 20

P. Shah et al., Induced termination of

pregnancy and low birth weight and

preterm birth: a systematic review and

meta-analysis, 116 B.J.0.G. 1425 (2009).. 20-21

Paul Benjamin Linton, The Legal Status of

the Unborn Child under State Law, 6 U.

St. Thomas J. Law & Pub. Pol’y 141

(C10) 9) Be 17

R.H. van Oppenraaij et al., Predicting

adverse obstetric outcome after early

pregnancy events and complications: a

review, 15 Human Reprod. Update

Advance Access 409 (2009).............::sse0e08 21

Randy Beck, Gonzales, Casey, and the

Viability Rule, 103 Nw. U. L. Rev. 249

TABLE OF AUTHORITIES—Continued

Page(s)

Randy Beck, Self-Conscious Dicta: The

Origins of Roe v. Wade’s Trimester

Framework, 51 Am. J. Legal Hist. 505

(QOL)... eecccccccsstesstssssssssssssssesseeeeeeeeeeers

Stuart W.G. Derbyshire, Can Fetuses Feel

Pain?, 332 Controversy 909 (2006)...........

Testimony of Anthony Levatino, M.D.,

Hearing on District of Columbia Pain-

Capable Unborn Child Protection Act, H.R.

1797, before the Subcomm. on _ the

Constitution and Civil Justice, H. Comm.

on the Judiciary, 113th Cong. (May 23,

2018) oo... cecccccccssssssssceeecceecceeeesseeeeeceseeeeeeasees

24-25

DECISIONS BELOW

The district court’s decision granting Respondents’

motion for summary judgment is reported at Jackson

Women’s Health Org. v. Currier, 349 F.Supp.3d 536

(S.D. Miss. 2018) and reprinted at Pet. App.4a-55a. The

district court’s orders granting Respondents’ motions for

temporary restraining order and to limit discovery,

Pet.App.58a-63a, are not reported.

The Fifth Circuit’s ruling is reported at Jackson

Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir.

2019) and reprinted at Pet.App.la-37a. The Fifth

Circuit’s order denying Mississippi’s petition for

rehearing en banc, Pet.App.38a-39a, is not reported.

STATEMENT OF JURISDICTION

On December 138, 2019, the Fifth Circuit issued its

opinion affirming the district court’s grant of summary

judgment to Respondents, and on January 17, 2020, the

Fifth Circuit denied rehearing en banc. The district court

had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3)

and the Fifth Circuit under 28 U.S.C. § 1292(a)(1). On

March 19, 2020, Justice Alito extended the time to file

a petition for a writ of certiorari to June 15, 2020. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

This case involves United States Constitution amendment XIV, § 1, and Mississippi’s House Bill 1510,

Pet.App.65a-74a.

INTRODUCTION

In 2018, Mississippi enacted the Gestational Age

Act. The law protects the health of mothers, the dignity

of unborn children, and the integrity of the medical

profession and society by allowing abortions after

15 weeks’ gestational age only in medical emergencies

or for severe fetal abnormality. These interests are

well supported by medical science:

Any surgical abortion taking place after 15 weeks

gestation carries inherent medical threats to

the mother. The risk of a mother’s death from

abortion at 16 to 20 weeks’ gestation is 35 times

more likely than at eight weeks, and the relative

risk of mortality increases by 38% for each additional week at higher gestations.

It is undisputed in the medical literature that a

human fetus develops neural circuitry capable

of detecting and responding to pain by 10-12

weeks after the last menstrual period (LMP). At

14-20 weeks, spinothalamic circuitry develops

that can support a conscious awareness of pain.

Accordingly, during the time the Act covers, the

human fetus is likely capable of conscious pain

perception in a manner that becomes increasingly complex over time.

The Act appropriately regulates inhumane

procedures. It prohibits abortions six weeks

after a fetus’s basic physiological functions are

all present, five weeks after the child’s vital

organs begin to function, and three weeks after

the child can open and close his or her fingers,

make sucking motions, and sense stimuli from

outside the womb.

Given these important interests, Mlississippi’s

Gestational Age Act brings into sharp focus the conflict

between this Court’s suggestion that states cannot

prohibit pre-viability abortions, Roe v. Wade, 410 U.S.

113, 163—65 (1973), and the Court’s repeated admonition

that states have legitimate interests “from the outset

of the pregnancy in protecting [1] the health of the

mother and [2] the life of the fetus that may become a

child,” Gonzales v. Carhart, 550 U.S. 124, 145 (2007)

(citing Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 846 (1992) (emphasis added)), and [8] avoiding “coarsen[ing] society to the humanity of not only

newborns, but all vulnerable and innocent life,” id. at

157 (cleaned up). Because of that conflict, “good reasons

exist for the Court to reevaluate its jurisprudence.”

MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773

(8th Cir. 2015).

First, “the Court’s viability standard has proven

unsatisfactory.” Id. at 774. As Justice O’Connor explained,

“potential life is no less potential in the first weeks of

pregnancy than it is at viability or afterward. ... The

choice of viability as the point at which the state

interest in potential life becomes compelling is no less

arbitrary than choosing any point before viability

or any point afterward. . . . [T]he State’s interest

in protecting potential human life exists throughout

the pregnancy.” City of Akron v. Akron Center for

Reproductive Health, 462 U.S. 416, 461 (1983) (O’Connor,

J., dissenting). See also id. at 458 (viability rule is “on

a collision course with itself”).

Second, a strict viability line ties “a state’s interest

in unborn children to developments in obstetrics, not

to developments in the unborn. This leads to troubling

consequences for states seeking to protect unborn

children.” MKB Mgmt., 795 F.3d at 774.

For example, in the 1970s, Mississippi could not

have prohibited abortion of a 24-week-old fetus because

that fetus would not have been viable. Today, Mississippi

could enact such a law. Tomorrow, development of an

artificial womb will inevitably move the “viability” line

to the moment of conception. “How it is consistent with

a state’s interest in protecting unborn children that

the same fetus would be deserving of state protection

in one year but undeserving of state protection in

another is not clear.” Ibid.

Third, imposing an inflexible viability standard

eviscerates “the states’ ability to account for ‘advances

in medical and scientific technology [that] have greatly

expanded our knowledge of prenatal life.” Ibid. (quoting

Hamilton v. Scott, 97 So. 3d 728, 742 (Ala. 2012)

(Parker, J., concurring specially)). These advances include

new knowledge that “a baby develops sensitivity to

external stimuli and to pain much earlier than was”

believed at the time of Roe. McCorvey v. Hill, 385 F.3d

846, 852 (5th Cir. 2004) (Jones, J., concurring). See

also Bryant v. Woodall, 2017 WL 1292378, at *7

(M.D.N.C. Apr. 7, 2017) (allowing discovery to “show

that an infant in utero begins to feel pain quite

probably by the twenty-week gestational age point”)

(cleaned up).

Mississippi attempted to introduce these advances

below. But the district court disregarded them as

irrelevant considering the viability standard. Yet “if

courts were to delve into the facts underlying Roe...

with present-day knowledge, they might conclude

that the woman’s ‘choice’ is far more risky and less

beneficial, and the child’s sentience far more advanced,

than the Roe Court knew.” McCorvey, 385 F.3d at 852

(Jones, J., concurring).

In light of all the foregoing, this Court was right

when it acknowledged three decades ago that it could

“not see why the State’s interest in protecting human

life should come into existence only at the point of

viability, and that there should therefore be a rigid

line allowing state regulation after viability but

prohibiting it before viability.” Webster v. Reproductive

Health Servs., 492 U.S. 490, 518 (1989). This case is an

ideal vehicle to make that acknowledgment a holding

and reconsider the bright-line viability rule.

This case also presents an opportunity to reconcile

Casey and Whole Women’s Health v. Hellerstedt, 136 S.

Ct. 2292 (2016), specifically, this Court’s conflicting

statements regarding the test to apply when analyzing

the validity of a pre-viability law that protects women’s

health, the dignity of unborn children, and the integrity

of the medical profession and society.

In Casey, the Court said such a law must yield when

it imposes an “undue burden,” i.e., “a substantial

obstacle in the path of a woman seeking an abortion

before the fetus attains viability.” 505 U.S. at 878. In

Hellerstedt—without overruling Casey—the Court did

not consider whether the burden of “increased driving

distances” was a substantial obstacle but instead

weighed that burden against the law’s benefits. 136 S.

Ct. at 2313. What’s more, the Court required the state

to prove those benefits. E.g., id. at 2314. As a result,

the Hellerstedt analysis was akin to strict scrutiny, a

standard that Casey rejected in favor of the undueburden standard because states have significant, legitimate reasons for regulating abortion. Casey, 505 U.S.

873-79. As with the Court’s conflicting statements

regarding viability, this case is an ideal opportunity to

resolve the confusion.

To be clear, the questions presented in this petition

do not require the Court to overturn Roe or Casey.

They merely asks the Court to reconcile a conflict in

its own precedents.' “It is troubling enough to many

1Tf the Court determines that it cannot reconcile Roe and Casey

with other precedents or scientific advancements showing a

compelling state interest in fetal life far earlier in pregnancy than

Americans of good faith that federal courts, without

any basis in constitutional text or original meaning,

restrict the ability of states to regulate in the area of

abortion.” Pet.App.37a (Ho., J., concurring). But it is

downright demeaning to states and their role in the

federalist system to not know in advance how courts

will evaluate the validity of their laws protecting

mothers, unborn infants, and the medical community

and society.

Finally, this case provides the Court with yet

another opportunity to clarify its third-party standing

doctrine in the abortion context. Abortion clinics and

providers should not be excluded from having to

satisfy the same rigorous third-party standing requirements as litigants in any other matter.

For all these reasons, Mississippi respectfully requests

that the Court grant the petition.

STATEMENT OF THE CASE

A. Mississippi HB 1510

In 2018, the Mississippi Legislature passed House

Bill 1510, the “Gestational Age Act.” Miss. Gen. Laws

2018, ch. 393 (codified at Miss. Code Ann. 41-41-191).

The law protects the health of the mother, the dignity

of the unborn child, and the integrity of the medical

profession by allowing abortions after 15 weeks’ gestational age only in medical emergencies or severe fetal

abnormality. Pet.App.65a-74a. Governor Phil Bryant

signed the bill into law on March 19, 2018, and it took

effect immediately.

those cases contemplate, the Court should not retain erroneous

precedent. Smith v. Allwright, 321 U.S. 649, 665 (1944).

H.B. 1510 contains detailed factual findings about

fetal development based on medical and other

authorities. These findings include:

“Between five (5) and six (6) weeks’ gestation,

an unborn human being’s heart begins beating.”

“An unborn human being begins to move about

in the womb at approximately eight (8) weeks’

gestation.”

“At nine (9) weeks’ gestation, all basic physiological functions are present. Teeth and eyes

are present, as well as external genitalia.”

“An unborn human being’s vital organs begin

to function at ten (10) weeks’ gestation. Hair,

fingernails, and toenails also begin to form.”

“At eleven (11) weeks’ gestation, an unborn

human being’s diaphragm is developing, and he

or she may even hiccup. He or she is beginning

to move about freely in the womb.”

“At twelve (12) weeks’ gestation, an unborn

human being can open and close his or her

fingers, starts to make sucking motions, and

senses stimulation from the world outside the

womb. Importantly, he or she has taken on “the

human form” in all relevant aspects. Gonzales

v. Carhart, 550 U.S. 124, 160 (2007).”

“The majority of abortion procedures performed

after fifteen (15) weeks’ gestation are dilation

and evacuation procedures which involve the

use of surgical instruments to crush and tear

the unborn child apart before removing the

pieces of the dead child from the womb. The

Legislature finds that the intentional commitment of such acts for nontherapeutic or elective

reasons is a barbaric practice, dangerous for the

maternal patient, and demeaning to the

medical profession.”

“Most obstetricians and gynecologists practicing in the State of Mississippi do not offer or

perform nontherapeutic or elective abortions.

Even fewer offer or perform the dilation and

evacuation abortion procedure even though it is

within their scope of practice.”

“Abortion carries significant physical and psychological risks to the maternal patient, and these

physical and psychological risks increase with

gestational age. Specifically, in abortions performed after eight (8) weeks’ gestation, the relative

physical and psychological risks escalate exponentially as gestational age increases. L. Bartlett

et al., Risk factors for legal induced abortion

mortality in the United States, Obstetrics and

Gynecology 103(4):729 (2004).”

“[A]s the second trimester progresses, in the

vast majority of uncomplicated pregnancies, the

maternal health risks of undergoing an abortion

are greater than the risks of carrying a pregnancy to term.”

“Medical complications from dilation and evacuation abortions include, but are not limited to:

pelvic infection; incomplete abortions (retained

tissue); blood clots; heavy bleeding or hemorrhage; laceration, tear, or other injury to the

cervix; puncture, laceration, tear, or other injury

to the uterus; injury to the bowel or bladder;

depression; anxiety; substance abuse; and other

emotional or psychological problems. Further,

in abortions performed after fifteen (15) weeks’

gestation, there is a higher risk of requiring a

hysterectomy, other reparative surgery, or

blood transfusion.”

e “The United States is one (1) of only seven (7)

nations in the world that permits nontherapeutic

or elective abortion-on-demand after the twentieth

week of gestation. In fact, fully seventy-five percent (75%) of all nations do not permit abortion

after twelve (12) weeks’ gestation, except (in

most instances) to save the life and to preserve

the physical health of the mother.” Pet.App.65a-

74a,

Based on these findings, the law requires a physician to determine a baby’s probable gestational age

before performing an abortion. Pet.App.70a. And it

prohibits someone from intentionally or knowingly

performing, inducing, or attempting to perform or

induce an abortion if the probable gestational age is

greater than 15 weeks. Id.

B. District court proceedings

Respondents—Jackson Women’s Health Organization,

Mississippi’s only abortion clinic and one of its providers, Dr. Sacheen Carr-Ellis—filed suit in federal

court to challenge H.B. 1510 the day the law took

effect. Respondents only provide abortions up to 16

weeks’ gestation. Pet.App.19a. They did not allege

that the law violates their own constitutional rights

but rather that the law bans pre-viability abortions in

violation of their clients’ rights. They requested a

temporary restraining order that the district court

granted the very next day. Pet.App.62a-64a.

Respondents later amended their complaint to add

claims attacking the constitutionality of virtually every

Mississippi abortion law and regulation in existence.

The district court bifurcated the case, sua sponte, severing the challenge to the 15-week law.

Over Mississippi's objections, the district court

adopted Respondents’ proposed discovery schedule for

the 15-week-law portion of the case and limited discovery to only one issue: “whether the 15-week mark is

before or after viability. ” Pet.App.60a. pecording t to the

district court, “evidence about any other issue .. . is

irrelevant.” Id.

Accordingly, the district court refused to consider

any of Mississippi’s interests advanced by the 15-week

law. This ignored the law’s three explicit justifications,

all set forth in the statutory text: Mississippi's “interest in protecting the life of the unborn;” in safeguarding

and regulating the medical profession, including prevention of “barbaric practice[s], [that are] dangerous

for the maternal patient, and demeaning to the medical

profession; and “protecting the health of women.”

Pet.App.66a-67a.

In support of the State’s interest in protecting

unborn life, Petitioners proffered Dr. Maureen Condic,

an expert in neurobiology, anatomy, and embryology,

to opine on the ability of a fetus to experience pain. Dr.

Condic explained that:

e “The scientific evidence regarding the development of human brain structures is entirely

uncontested in the literature and unambiguously

indicates that by [10-12 weeks LMP], a human

fetus develops neural circuitry capable of detecting

and responding to pain.” Pet.App.75a at { 3.

e “During the period from [14-20 weeks LMP],

spinothalamic circuitry develops that is capable

of supporting a conscious awareness of pain.”

Id.

e “During the time period covered by the Gestational Age Act, the human fetus is producing

neural structures that enable a conscious

perception of pain, with development of these

structures being substantially complete by the”

20th week LMP. Pet.App.77a at J 6. “Thus,

during the time period covered by the Gestational

Age Act, the human fetus is likely to be capable

of conscious pain perception in a manner that

becomes increasingly complex over time.” Id. { 7.

e “(The scientific evidence regarding development

of pain circuitry is entirely undisputed, and has

been reported in every modern review of fetal

pain.” Pet.App.78a-79a at {[ 11 (citations omitted).

e “The neural circuitry responsible for the most

primitive response to pain, the spinal reflex, is

in place by” 10 weeks LMP. “This is the earliest

point at which the fetus is capable of detecting

and reacting to painful stimuli in any capacity.

And a fetus responds just as humans at later

stages of development respond[:] by actively withdrawing from the painful stimulus.” Pet.App.80a-

8la at { 15.

e And the “rapid improvement in survival of

human infants born at increasingly younger

ages strongly suggests that in the relatively

near future, infants born prior to the 19th week

of development may prove to be ‘viable,’ due to

technical advances.” Pet.App.81a-83 at { 17.

The district court ruled Dr. Condic’s expert medical

and scientific opinions irrelevant and inadmissible.

Pet.App.56a-57a.

Following very limited discovery, the district court

granted summary judgment to Respondents and perma-

nently enjoined Mississippi’s 15-week law. Pet.App.58a-

6la. The district court held that under controlling

precedent, the 15-week law is unconstitutional because

it would “ban” pre-viability abortions. Pet.App.55a.

The district court did not apply the undue burden test,

and it refused to consider any of the legitimate

government interests furthered by the 15-week law.

Instead, the district court disparaged Mississippi’s

acknowledged interest in women’s health as “pure

gaslighting” and criticized Mississippi for following

the lead of many states who declined to expand Medicaid following enactment of the federal Affordable

Care Act. Pet.App.46a.

The district court’s diatribe did not stop there. The

court accused the State’s political leaders of being

“proud to challenge Roe” while choosing “not to lift a

finger to address the tragedies lurking on the other

side of the delivery room.” Pet.App.46a. It compared

H.B. 1510 “to the old Mississippi—the Mississippi bent

on controlling women and minorities. The Mississippi

that, just a few decades ago, barred women from

serving on juries so they may continue their service as

mothers, wives, and homemakers.” Pet.App.47a (quotation omitted). “The Mississippi that, in Fannie Lou

Hamer’s reporting, sterilized six out of ten black

women in Sunflower County at the local hospital—

against their will.” Pet.App.47a(citation omitted).

“And the Mississippi that, in the early 1980s, was the

last State to ratify the 19th Amendment.” Pet.App.47a

(citation omitted). “The Mississippi Legislature,” the

court proclaimed, “has a history of disregarding the

constitutional right of its citizens.” Pet.App.50a.

C. Fifth Circuit ruling

The Fifth Circuit affirmed. It held that this Court’s

precedent creates a categorical right to a pre-viability

abortion, and the 15-week law infringes that right

because it is a “ban on certain pre-viability abortions[.]”

Pet.App.13a. Construing that right as inviolable, the

Fifth Circuit agreed that the district court was not

required to apply the undue burden test or consider

the strength of Mississippi’s interests that the law

served. Pet.App.12a. The court also affirmed the district

court’s discovery and evidentiary rulings, explaining

that this “result . . . flows from our holding that the

Act unconstitutionally bans pre-viability abortions.”

Pet.App.14a. And it rejected Mississippi’s standing

argument. Pet.App.15a.

Judge Ho concurred in affirming the judgment of the

district court because a “good faith reading” of this

Court’s precedents required it. Pet.App.20a. But he

stated that he could not affirm the district court’s

opinion because he was “deeply troubled by how the

district court handled this case.” Pet.App.21la. The

district court’s opinion “displays an alarming disrespect

for the millions of Americans who believe that babies

deserve legal protection during pregnancy as well as

after birth, and that abortion is the immoral, tragic,

and violent taking of innocent human life.” Pet.App.21a.

“Instead of respecting all sides,” Judge Ho continued,

“the district court opinion disparages the Mississippi

legislation,” “equates a belief in the sanctity of life

with sexism,” and “smears Mississippi legislators by

linking House Bill 1510 to the state’s tragic history of

race relations, while ignoring abortion’s own checkered

racial past.” Pet.App.21a. “It is troubling,” Judge Ho

concluded, “that federal courts, without any basis in

constitutional text or original meaning, restrict the

ability of states to regulate in the area of abortion.”

Pet.App.37a.

REASONS FOR GRANTING THE WRIT

In Gonzales, this Court recognized that an unborn

child “is a living organism while within the womb,

whether or not it is viable outside the womb.” 550 U.S.

at 147. As a result, that child is entitled to “respect for

the dignity of [its] human life.” Id. at 157.

Conversely, Roe’s viability line is arbitrary, constantly moves as medical knowledge increases, and

fails to honor the reality that states have substantial

interests of their own beginning “from the outset of the

pregnancy.” Id. at 145. Indeed, by 15 weeks, a baby’s

development is so great—and the likelihood of her

eventual live and healthy birth so high—that it makes

little sense to say a state has no interest in protecting

the infant’s life, not to mention the state’s substantial

interests in the mother’s life and safety, the baby’s

pain and suffering, and the “coarsenl[ing of] society to

the humanity of . . . all vulnerable and innocent

human life.” Id. at 157 (cleaned up).

Given the conflict in this Court’s precedents and the

advances in medical and scientific knowledge, certiorari

is warranted to clarify whether abortion prohibitions

before viability are always unconstitutional. The Court

should grant the petition, hold that it is illogical to

impose a “rigid line allowing state regulation after

viability but prohibiting it before viability,” Webster,

492 U.S. at 518, and uphold the Gestational Age Act.

In so doing, the Court should clarify whether the Casey

undue-burden test or the Hellerstedt balancing framework should be applied. And the Court should hold

that abortion clinics and doctors lack third-party

standing to assert the rights of their clients, bringing

standing in abortion cases into conformance with all

other areas of the law.

I. The Court should grant certiorari and

clarify that the right to a pre-viability

abortion is not absolute.

The only legal and factual issue the district court

considered was whether a baby is viable at 15 weeks.

Pet.App.40a-55a. This was error and conflicts with

this Court’s nuanced and evolving abortion jurisprudence. Just as this Court rejected Roe’s trimester

framework in Casey, the Court should grant review

and reject “viability” as the bright line for determining

when a state may legislate to advance its substantial

interests in health, safety, and dignity.

A. “Viability” is not an appropriate standard for assessing the constitutionality

of a law regulating abortion.

The Court has already held that states have legitimate interests in protecting the health of the mother,

the life and dignity of the developing baby, and

society's sensitivity to the importance of all human

life. Gonzales, 550 U.S. at 145, 157. The Court also

recognizes these interests exist “from the outset of the

pregnancy.” Jd. at 145 (citing Casey, 505 U.S. at 846).

But that recognition conflicts with Roe’s suggestion

that a mother has a right to terminate her baby’s life

up to viability. Roe, 410 U.S. at 163-65. There are

many reasons to revisit the bright-line viability rule.

1. Neither the Texas statute challenged in Roe nor

the Georgia statute at issue in Doe v. Bolton, 410 U.S.

179 (1973), included a gestational age limit. So, the

lower courts did not rule on viability in either case,

and no party or amicus asked the Court to adopt a

bright-line viability rule—or even to extend the

abortion right to viability.

As such, basing its holding on fetal viability was

“self-conscious dictum” from the get-go. Randy Beck,

Self-Conscious Dicta: The Origins of Roe v. Wade’s

Trimester Framework, 51 Am. J. Legal Hist. 505

(2011). And members of the Court have commented on

the arbitrariness of using viability as the marker to

evaluate the strength of state interests. Justice O'Connor

explained in Akron that the “choice of viability as the

point at which the state interest in potential life

becomes compelling is no less arbitrary than choosing

any point before viability or any point afterward.” 462

U.S. at 461. And the Court in Webster saw no reason

“why the State’s interest in protecting potential

human life should come into existence only at the point

of viability, and that there should therefore be a rigid

line allowing state regulation after viability but

prohibiting it before viability.” 492 U.S. at 519.

Webster cited favorably to the dissent in Thornburgh

v. American College of Obstetricians and Gynecologists,

476 U.S. 747 (1986), noting that a state’s “compelling

interest’ in protecting human life throughout pregnancy,”

if “compelling after viability, is equally compelling

before viability.” Id. (quoting Thornburgh, 476 U.S. at

795 (White, J., dissenting)). Accord Thornburgh, 476

U.S. at 778 (Stevens, J., concurring) (state’s interest

increases with the baby’s “capacity to feel pain”).

2. When adopting the viability rule, the Roe opinion

did not grapple with its implications for maternal

health, nor could it; since the issue had not been

briefed or argued, the Court lacked a record to consider

those implications. With the benefit of additional

experience and study, it is now apparent that allowing

abortion until viability risks the mother’s health in

multiple ways. Linda Bartlett, et al., Risk Factors

for Legal Induced Abortion-Related Mortality in the

United States, 103 Ob. & Gyn. 729 (2004) (“Compared

with women whose abortions were performed at or

before 8 weeks of gestation, women whose abortions

were performed in the second trimester were significantly more likely to die of abortion-related

causes.”). More on this below. The point here is that

it is difficult to reconcile a bright-line viability rule

and the state’s interest in protecting maternal

health. That explains why Mississippi has an existing

20-weeks law that is still in effect, Miss. Code Ann. 41-

41-141, and why, as of January 1, 2020, 17 states—

Alabama, Arkansas, Georgia, Indiana, Iowa, Kansas,

Kentucky, Louisiana, Nebraska, North Dakota, Ohio,

Oklahoma, South Carolina, South Dakota, Texas,

West Virginia, and Wisconsin—are enforcing 22-

weeks laws.

3. Roe’s viability rule is outdated. Most states reject

viability as the rule for determining when prenatal

injuries are actionable. Paul Benjamin Linton, The

Legal Status of the Unborn Child under State Law,

6 U. St. Thomas J. Law & Pub. Pol’y 141, 146-48

(2012) (Linton). Courts and legislatures routinely

reject viability as the standard for wrongful-death

actions. E.g., Hudak v. Gregory, 634 A.2d 600, 602 (Pa.

1993) (“[N]o jurisdiction accepts the . . . assertion that

a child must be viable at the time of birth in order to

maintain an action in wrongful death.”); Hamilton v.

Scott, 97 So.8d 728, 735 (Ala. 2012) (“Alabama’s

wrongful-death statute allows an action to be brought

for the wrongful death of any unborn child, even when

the child dies before reaching viability.”) And states

reject the rule for fetal homicides. Linton 143—46.

Outside abortion, “viability is purely an arbitrary milestone from which to reckon a child’s legal existence.”

Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 792

(S.D. 1996).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.