Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

No. 19-1392

In the Supreme Court

of the United States

________________

THOMAS E. DOBBS, STATE HEALTH

OFFICER OF THE MISSISSIPPI DEPARTMENT

OF HEALTH, ET AL., PETITIONERS

v.

JACKSON WOMEN’S HEALTH

ORGANIZATION, ET AL., RESPONDENTS

_______________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

BRIEF OF AMICUS CURIAE DAVID BOYLE

IN SUPPORT OF PETITIONERS

_________________

David Boyle

Counsel of Record

P.O. Box 15143

Long Beach, CA 90815

dbo@boyleslaw.org

(734) 904-6132

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES…..………………………iii

AMICUS CURIAE STATEMENT OF INTEREST…1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT……………………………………………...4

I.

People May Call Abortion a Colossal Moral

Evil in Many Circumstances…………………...4

II.

A 15-Week Abortion Limit May Seem Highly

Reasonable, Given the Many Nations with

More Stringent Limits, and Given the Whole

First Trimester Allowed for Legal

Abortion.............................................................9

III. Not Every Abortion May Be in the Womb; or,

the Breadth of What “Pro-Life” May

Mean…………………………………………….14

IV.

Supply and Demand in the Abortion Debate:

Regulating Abortion Strongly, but Providing

Viable Alternatives, So That Fewer Women

Would Choose Abortion……………………….18

V.

The Court May Consider Whether Mississippi

Offers Sufficient Support to Pregnant

Women, in Considering the Legality of the

State’s Experiment with a 15-Week Ban…..21

VI.

Discussion of Prosecuting Abortions After

Coerced Sex (Rape, Incest, Etc.) May Be

ii

Necessary for Fair Consideration of

Abortion Law…………………………………...26

VII. Abortion Polls Are Disparate, But Many

Indicate Public Support for Serious Limits

on Legal Abortion……………………………...27

VIII. Respecting the Legacy of Justice Ginsburg,

in Considering the Instant Case…………….30

IX. An Extreme Ruling in Either Direction Could

Devastate the Credibility of the Court; or,

Avoiding the “Constitutional Bends”……….32

(ANTECONCLUSION)……………….………….….35

CONCLUSION……………………………………….37

iii

TABLE OF AUTHORITIES

CASES

California v. Texas, 593 U.S. ____ (2021)….………22

Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833 (1992)………………………………………..5, 33

Roe v. Wade, 410 U.S. 113 (1973)………24, 33, 34, 35

CONSTITUTION

U.S. Const. pmbl.………………………………..3, 36, 37

U.S. Const. amend. I.……………………………………4

STATUTES

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

2018, ch. 393 (codified at Miss. Code Ann. 41-41191)..………………………….…………….3, passim

Miss. Code Ann. § 43-15-201 (2001) (amended

2020).………………………………..………………25

Patient Protection and Affordable Care Act (Pub. L.

111-148, 124 Stat. 119 (2010), as amended by

the Health Care and Educ. Reconciliation Act of

2010, Pub. L. 111-152, 124 Stat. 1029 (2010) and

the Tax Cuts and Jobs Act of 2017, Pub. L. 115–

97, 131 Stat. 2054 (2017))………………………..22

iv

RULES

S. Ct. R. 37………………………………..………….1 n.1

OTHER AUTHORITIES

(The Internet links below were last visited July 17,

2021.)

Abortion Photograph, courtesy of LifeSiteNews,

available at https://lifesite-cache.s3.amazon

aws.com/images/made/images/blog/D-and-Eabortion_645_430_55.jpg)……………………….8-9

David Agren (Cath. News Service), Argentina

legalizes abortion despite strong Catholic

opposition in Pope Francis’ homeland, America,

Dec. 30, 2020, https://www.americamagazine.

org/politics-society/2020/12/30/abortionargentina-pope-francis-catholic-pro-life239626………………………………………………11

Margaret Atwood, The Handmaid’s Tale (1985)

(Hulu/MGM Television 2017-present)……..15-16

Photograph of Aunt Lydia (Ann Dowd) and June

Osborne/“Offred” (Elisabeth Moss), courtesy of

SBS Australia, available at https://www.sbs.

com.au/topics/sites/sbs.com.au.topics/files/

styles/full/public/6554fe72-26fc-47ca-9bd8068b70c3198b_1525739579.jpeg?itok=ODD

mH6uy&mtime=1525739650……………….…16

W.H. Auden, September 1, 1939 (1939)……………..35

v

Livia Borghese & Matthew Robinson, Pope likens

abortion to ‘hiring a hitman’ at anti-abortion

conference, CNN, 7:45 a.m., May 26, 2019, https:

//www.cnn.com/2019/05/26/europe/pope-francisabortions-hitman-rome-intl/index.html………..13

Martin Buber, idea of “I-Thou” and “I-It”

relationships…………………………………………5

Charles C. Camosy, Common ground in the abortion

debate is obvious: Support mothers., America,

July 1, 2021, https://www.americamagazine.org/

politics-society/2021/07/01/common-groundabortion-camosy-240961……………………...19-20

Catechism of the Cath. Church, ¶ 2272………………7

Citizen Ruth (Miramax Films 1996)……………...2, 36

David Crary & Hannah Fingerhut, AP-NORC poll:

Most say restrict abortion after 1st trimester, AP

News, June 25, 2021, https://apnews.com/article/

only-on-ap-us-supreme-court-abortion-religionhealth-2c569aa7934233af8e00bef4520a8

fa8………………………………………………..28-30

Cruella (Walt Disney Pictures 2021)………………….6

Dead Kennedys, Kill the Poor (Cherry Red Records

1980), available at https://www.youtube.com/

watch?v=L8zhNb8ANe8……………….…………24

Finley Peter Dunne, “Mr. Dooley” Quote (1901)…..28

vi

Exodus 20:13……………………………………………...7

First Reformed (A24 2017)…………………………….17

Gallup, Abortion, Gallup News, https://news.gallup.

com/poll/1576/abortion.aspx…………………28, 29

Tbl. 4……………………………………………………29

Tbl. 9……………………………………………………29

Tbl. 15………………………………………….28, 29-30

Ruth Bader Ginsburg Photograph, courtesy of

GentlyWeepingGuitar_, Young Ruth Bader

Ginsburg, Reddit, c. 2019, available at

https://preview.redd.it/dyy9l0vmub921.jpg?

width=640&crop=smart&auto=webp&s=

01295477a5aaf77300cc0de2525f597e8c4d

889e.....................................................................31

The Godfather Part II (Paramount Pictures

1974)………………………………………………...14

Amanda Michelle Gomez, Pope admonishes

Catholics that poverty and immigration are just

as important issues as abortion, ThinkProgress,

Apr. 9, 2018, 10:38 a.m., https://archive.

thinkprogress.org/pope-francis-abortioncatholics-social-justice-issues-a522c2efe

876/………………………………………………17-18

Nicholas Kristof, She’s Evangelical, ‘Pro-Life’ and

Voting for Biden, N.Y. Times, Oct. 21, 2020,

vii

https://www.nytimes.com/2020/10/21/opinion/

evangelicals-election-biden.html…………...20, 21

Luke 6:31……………………………………………...4, 23

Matthew 7:12…………………………………………4, 23

Laycie McClain, Pro-Life Evangelicals Who

Supported Biden Are Upset, March 9, 2021,

ChurchLeaders.com, https://churchleaders.

com/news/391919-pro-life-evangelicals-whosupported-biden-are-upset.html…………….20-21

Inés San Martín, Pope Francis weighs in on

Argentina’s abortion debate, Crux, Nov. 26,

2020, https://cruxnow.com/church-in-theamericas/2020/11/pope-francis-weighs-in-onargentinas-abortion-debate/…………………11-12

WILLIAM SHAKESPEARE, HAMLET.……………………...8

Wikipedia, Abortion in Argentina, https://en.

wikipedia.org/wiki/Abortion_in_Argentina (as of

22:55 GMT, July 10, 2021)……………………….11

Wikipedia, Abortion in France, https://en.wikipedia.

org/wiki/Abortion_in_France (as of 14:32 GMT,

Mar. 28, 2021)………………………………9-10, 24

Wikipedia, Abortion in the Republic of Ireland,

https://en.wikipedia.org/wiki/Abortion_in_the_

Republic_of_Ireland (as of 15:47 GMT, June 29,

2021)………………………………………...10, 24-25

Wikipedia, Gerri Santoro, https://en.wikipedia.org/

viii

wiki/Gerri_Santoro (as of 17:45 GMT, June 25,

2021)…………………………………………….14-15

Santoro Photograph, available at https://upload.

wikimedia.org/wikipedia/en/thumb/0/02/Gerri_

Santoro_%281964%29.jpg/250px-Gerri_Santoro

_%281964%29.jpg………………………………….15

1

AMICUS CURIAE STATEMENT OF INTEREST

The present amicus curiae, David Boyle

(hereinafter, “Amicus”),1 is respectfully filing this

Brief in Support of Petitioners. Amicus has filed

briefs (“available on request”) in various abortionrelated cases at this Court, so is also filing one here,

for completeness’ sake.

He is also trying to provide a perspective which

shows due respect to people on both the “pro-life”

and “pro-choice” sides. Indeed, this brief, while for

Petitioners, has features of a brief for neither party.

(Ironically, some self-styled “briefs for neither party”

may not always show genuine neutrality…)

There is some good on both sides, after all: even

those who respect unborn life, may admit that prochoice advocates bring up valuable questions. E.g.,

what about maternal/infant mortality? rape and

incest? the burden of pregnancy on women (or

transgender men, or “non-binary” people, with a

uterus, all a.k.a. “birthing people”), not equally

shared by (cisgender) men? etc. Amicus would even

like to thank both sides (this does not happen

enough…) for participating in the debate, in a civil,

rational manner, moving towards a better America.

Common ground may be possible. For example,

even those who believe abortion can be condemned

as a moral monstrosity, may also admit that not all

prosecution of abortion is automatically fair or

advisable. On the other hand, even those who

1 No party or its counsel wrote or helped write this brief, or

gave money intended to fund its writing or submission, see S.

Ct. R. 37. Blanket permission by both parties to write briefs is

filed with the Court.

2

generally support abortion rights may be convinced

that certain abortions (e.g., late-term abortions,

race-selective abortions) can legitimately be

restricted by the State.

Solutions on the “extreme left” or “extreme right”

may thus tend to be impractical or evil; and

solutions of a more moderate nature may be more

sensible. Cf. the film Citizen Ruth (Miramax Films

1996) (Laura Dern as Ruth Stoops, a promiscuous,

glue-sniffing pregnant woman manipulated by both

pro-choice and pro-life extremists).

True, not all extremism is bad: some things that

Gandhi or Martin Luther King did (hunger strike,

etc.) might be called “extreme” in their nonviolent

witness towards justice. However, extremism

certainly can be bad; and if the Court tips overly to

the left or the right, and produces an unwise opinion

in the instant case, the damage to the Court’s

credibility, and to the Nation, could be immense.

Amicus is even concerned about violence from

either side: one side might bomb abortion clinics, the

other side might vandalize churches. So, the more

sensible and nuanced an opinion the Court delivers,

sensitive to fair questions and requests from both

sides of the abortion argument, the better for all.

—In a perfect world, there would be no perceived

need for abortion, and thus no perceived need for

abortion to be legal. Of course, in a perfect world,

there would be no maternal mortality (or other

tragic, needless deaths of already-born people), no

pay gap between men and women, no rapes or sexual

harassment, no undue global warming to threaten

humanity, etc.

3

We don’t live in this utopia yet: a zero-abortion,

and zero-problem, world. But this goal, resonating

with the “more perfect Union” of which our

Constitution’s Preamble speaks, can be a guiding

star for this thoughtful Court’s careful deliberations.

SUMMARY OF ARGUMENT

For multiple reasons, such as the racism of raceselective abortions, people may call abortion an

immense moral evil.

France, Ireland, and Argentina offer fewer than

15 weeks for unrestricted abortion, making it

questionable to call Mississippi’s 15-week limit

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

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

(“the Act”)), which offers women over 100 days to

choose, and even allows abortion of “fatally

defective” fetuses, oppressive to women.

However, must every “abortion” be of an unborn

person; or could the term also apply to victimized

already-born people, so that needless deaths of all of

them should be avoided? And then, e.g., how does

one compare the life-value of a fetus with that of a

pregnant woman?

Thus, not only supply of abortions, but also

demand issues (say, is the State subsidizing child

welfare enough to discourage abortion?) must be

considered for fairness to both fetuses and pregnant

women. The 15-week ban is a social experiment, and

considering relevant issues, such as whether poor

women must have access to abortion, or merely to

viable alternatives, may help the experiment work.

4

The Court should also consider the fairness, and

extent of, prosecution of abortion in case of coerced

sex (rape, etc.).

Polls vary greatly, but many of them show most

Americans opposing legalized second-trimester

abortions.

Justice Ginsburg’s legacy of championing women

should be useful to this Court’s deliberations.

Finally, the Court may lose credibility by showing

favor to extremists on either side of the case, when

more moderate solutions are available.

ARGUMENT

I. PEOPLE MAY CALL ABORTION

A COLOSSAL MORAL EVIL

IN MANY CIRCUMSTANCES

First off: abortion is a hideously controversial

issue, but under the First Amendment, people may

freely opine about it, except for incitement to

violence. It seems reasonable that many people find

abortion to be atrociously evil: the killing of a

defenseless, innocent human being or potential

human being, especially if the mother’s life or health

is not seriously at stake from the pregnancy.

Famously, the Nazarene said, “Do unto others as

you would have them do unto you.” The “Golden

Rule”. Matthew 7:12, Luke 6:31. And by definition,

no one having, or performing, an abortion, was

aborted her/himself, because if she/he had been

aborted, that person wouldn’t even exist. So, there

may be an implied “reciprocity” or “pay it forward”

5

ethic, that if your own parents let you live, you

should let your own children live.

Indeed, as per the Golden Rule, supra, or

philosopher Martin Buber’s idea of “I-Thou”

relationships (treating others as equals) rather than

“I-It” relationships (treating others as things), any

judge, or any observer, might want to put

herself/himself in the place of a fetus/embryo/

blastocyst/zygote (“fetus”) about to be aborted. Would

the judge really want to be in the place of that fetus?

Would anybody? Enough said.

(The Court in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992), famously and lyrically noted, “At the heart of

liberty is the right to define one’s own concept of

existence, of meaning, of the universe, and of the

mystery of human life”, id. at 851 (plurality op.); but

that is precisely the liberty denied the fetus herself

when she is exterminated. What about the fetus’

choices? —Some would say that the freedom to abort

ends, where the fetus’ nose begins.)

However, some Orwellian terminology from the

pro-choice side has worked to obscure the potential

horrors of abortion. For example, perhaps the term

“terminate your pregnancy” should refer to the

regular way of terminating pregnancy (having the

baby), rather than to abortion, because saying

“terminate your pregnancy” rather than “have an

abortion” may sanitize and obfuscate a deadly,

filicidal procedure.

And in recent years, the term “abortion care”,

instead of just “abortion”, has become popular. But

when the fetus is being dismembered and killed, and

maybe old enough to feel pain from the killing, does

6

the fetus feel “cared” for? (On that note: those who

say abortion is safer than carrying a pregnancy to

term… omit that abortion is not safer for the fetus.)

Women lawyers (or other professionals/workers)

may tell the Court that an abortion was needed to

help them focus on their careers. Maybe, but that

misses the point that the aborted may have had their

own lives and careers as well, if they hadn’t been

extinguished. (And if someone has 10 abortions, and

snuffs out 10 lives and careers…)

And when people discuss abortion as a woman’s

right, there may be at least two women in question,

since in roughly half of pregnancies, the fetus may

be female. So, should people also take account of the

woman in the womb, not just the pregnant woman?

(Sex-selective abortion is pertinent here: those who

claim to want equality for women but don’t object to

a female fetus being destroyed because it is female,

may have more thinking to do.)

Thus, is it acceptable to use the words/phrases

“selfishness”, “narcissism”, or “sacrificing your

child’s life for your own worldly benefit”, in

connection with abortion, at times? Readers can

judge for themselves. Cf. the current film Cruella

(Walt Disney Pictures 2021) (London fashion

designer tries to kill infant daughter so that the

child won’t interfere with her career).

Too, many abortions could be classed as hate

crimes. Race-selective, sex-selective, disabilityselective, and also sexual-orientation-selective,

abortions may be murderous, cruel discrimination. If

a woman decides to abort her fetus for the sole

reason that he is partly Jewish, how much does that

7

differ from Auschwitz? (Especially if the abortion

occurs at a government facility, or is funded by

taxpayer money: state action/funding used for a

blatantly discriminatory purpose.)

And as is well known, Hitler exterminated not

only Jews but also disabled people: so, those who kill

their fetus because she has Down syndrome, are

arguably continuing the Führer’s evil work…

Re sexual-orientation-selective abortions, Amicus

is concerned that if science finds genetic markers

which show an increased chance for a baby to be

LGBT+ (lesbian/gay, bisexual, transgender,

hermaphrodite, etc.), then parents may choose to

abort that fetus because they don’t want an LGBT+

baby. But LGBT+ lives matter, as do Black and all

other lives, regardless of race, gender, disability, or

orientation status.

Thus, Mississippi may want to preemptively

outlaw abortions performed on the basis of sexual

orientation. This could put the Magnolia State on

the cutting edge of human rights, both fetal rights

and LGBT+ rights: quite a coup, as it were.

And any abortion, whether targeted against a

particular disliked group or not, could even lead

those involved to burn in Hell for eternity: see, e.g.,

Catechism of the Cath. Church, ¶ 2272 (automatic

excommunication, for reasons including “the

irreparable harm to the innocent who is put to

death”). See also, e.g., “Thou shalt not kill” (Exodus

20:13), which has been a deeply meaningful moral

criterion for millennia.

Indeed, any number of bad things can be said

about abortion. There is lechery, e.g., putting carnal

8

pleasure above the life of the child that the carnal

activity produces. Cowardice, in that abortion hits a

defenseless target who can’t hit back. Treachery, in

particular, kinslaying, since one arguably betrays

one’s own child to death by aborting the youngling.

“A little more than kin, and less than kind.” WILLIAM

SHAKESPEARE, HAMLET act 1, sc. 2.

Finally, given the projected possible decline in

world population, and the vast empty spaces of our

Solar System awaiting colonization by Earth, “excess

world population” is not a convincing reason to have

an abortion, either.

Thus, all told, some would make out a case for

abortion being, at times, a monstrously self-serving

and violent act, and in some cases also racist, sexist,

homophobic, ableist, or even torture (if the fetus is

old enough to feel pain). Arguably, children should

be in peace, not in pieces.

9

(Abortion photograph courtesy of LifeSiteNews,

available at https://lifesite-cache.s3.amazonaws.com/

images/made/images/blog/D-and-E-abortion_645_430

_55.jpg)

Amicus hopes he has established, supra, that

“pro-life” advocates are not just some mob of Biblethumping fanatics and misogynists: but rather, that

they may have genuine, serious reason for opposition

to abortion, and for opposition to the legality of at

least some abortions.

II. A 15-WEEK ABORTION LIMIT MAY BE

HIGHLY REASONABLE, GIVEN THE MANY

NATIONS WITH MORE STRINGENT LIMITS,

AND GIVEN THE WHOLE FIRST TRIMESTER

ALLOWED FOR LEGAL ABORTION

And many countries, civilized ones, have legalabortion limits not much different from Mississippi’s,

although more stringent than that State’s. For

example,

Abortion in France is legal on

demand up to 12 weeks after conception

(14 weeks after the last menstrual

period). Abortions at later stages of

pregnancy are allowed if two physicians

certify that the abortion [is] to prevent

grave permanent injury to the physical

or mental health of the pregnant

woman; a risk to the life of the

pregnant woman; or that the child will

suffer from a particularly severe illness

recognized as incurable. …

….

10

…France legalized abortion in … 1975,

which permitted a woman to receive an

abortion on request until the tenth

week of pregnancy[, though t]he tenweek limit was extended to the twelfth

week in 2001.

Wikipedia, Abortion in France, https://en.wikipedia.

org/wiki/Abortion_in_France (as of 14:32 GMT, Mar.

28, 2021) (citations omitted). Thus, France is

arguably even more restrictive of abortion than

Mississippi, given that Mississippi allows 15 weeks,

more than the 14 weeks France allows.

Similarly, in Ireland, following the death of

Savita Halappanavar there in 2012, during her 17th

week of pregnancy, from septic miscarriage and not

being allowed a legal abortion, abortion was

liberalized so that abortion in the first 12 weeks of

pregnancy (apparently gestation, not conception)

was legal; and later abortions were made legal in

case of threat to the life of, or serious threat to the

health of, the mother, or fatal fetal abnormality.

Wikipedia, Abortion in the Republic of Ireland,

https://en.wikipedia.org/wiki/Abortion_in_the_Repub

lic_of_Ireland (as of 15:47 GMT, June 29, 2021).

That degree of law-liberalization seems

counterintuitive, in that clearly allowing abortion for

serious threat to the mother’s health might have

been enough to save Halappanavar’s life, and legal

abortion in only the first 12 weeks of pregnancy

wouldn’t have helped to save her life. However,

regardless of whether the full liberalization was

needed, it was deemed an appropriate response, or

11

sequel, to Halappanavar’s death. But it doesn’t give

15 weeks as does Mississippi, it gives merely 12.

Thus, it seems prima facie ridiculous that a 15week limit would be some horrible oppression of

women, if a 12-week limit in Ireland were deemed an

adequate provision for problems like Halappanavar’s

death.

And, going to another continent than Europe, for

comparison: in Argentina, abortion law was recently

liberalized to allow abortion through 14 weeks of

pregnancy (apparently gestation, not conception),

Wikipedia, Abortion in Argentina, https://en.

wikipedia.org/wiki/Abortion_in_Argentina (as of

22:55 GMT, July 10, 2021). The local Church wasn’t

happy about this, see David Agren (Cath. News

Service), Argentina legalizes abortion despite strong

Catholic opposition in Pope Francis’ homeland,

America, Dec. 30, 2020, https://www.america

magazine.org/politics-society/2020/12/30/abortionargentina-pope-francis-catholic-pro-life-239626.

Nor was the Pope himself, apparently, see Inés

San Martín, Pope Francis weighs in on Argentina’s

abortion debate, Crux, Nov. 26, 2020, https://

cruxnow.com/church-in-the-americas/2020/11/popefrancis-weighs-in-on-argentinas-abortion-debate/,

Pope Francis[, re] the

decriminalization of abortion in his

Argentinian homeland, sen[t] a

handwritten letter to a group of women

from Buenos Aires’ slums asking, “Is it

fair to hire a hitman to resolve a

problem?”

12

…The women sent [the Pope a] letter

last week, asking for him to be their

voice ….

…..

“We write to your Holiness, with the

desire to ask for you to help us express

to public opinion that we feel prisoners

in a situation where our own family is

compromised, as are our teenage

daughters and future generations, that

grow old with the idea that our life is

not wanted and that we don’t have a

right to have children because we are

poor,” the women wrote on Nov. 18.

(Bold and underline in the original.)

Id. So, if only fourteen weeks of legal abortion was

too liberal for the Church and some poor Argentinian

women, it makes it harder to argue that fifteen

weeks of abortion in Mississippi is some fascist plot

to deprive women of autonomy.

And many other countries may also have

restrictions on second- and third-trimester abortions.

All told, Mississippi is in good company in restricting

abortions after the 15th week.

And regardless of other countries: the Act, on its

own merits, allows the entire first trimester (when

most abortions occur anyway) for people to decide

about abortion. 15 weeks is 105 days, which gives

couples/women over 100 days to decide. This is a

significant amount of time, making it harder to say

that the window for decision is an “undue burden”.

(Compare a 6-week time to decide, which offers less

than 50 days.)

13

Some may even wonder if the Act is actually too

lenient, since it allows abortion not only for medical

emergencies but even for allegedly-fatal fetal

disabilities, id. at § 4. See, e.g., Livia Borghese &

Matthew Robinson, Pope likens abortion to ‘hiring a

hitman’ at anti-abortion conference, CNN, 7:45 a.m.,

May 26, 2019, https://www.cnn.com/2019/05/26/

europe/pope-francis-abortions-hitman-rome-intl/

index.html, “The Pontiff stated that abortion was

never acceptable – not even in instances when

fetuses are seriously ill – and urged doctors to

support women to complete all pregnancies.” Id.

E.g., what if a “fatal fetal defect” is wrongly

diagnosed, and it’s only after the abortion that the

parents find they had no reason to abort after all?

Also, Amicus is concerned that “fetal defects” may be

used disproportionately against vulnerable or

confused parents, who may be pressured to

exaggerate, say, a case of fetal Down syndrome and

wrongly claim the fetus has some “fatal defect”.

Incidentally, even if the fetus isn’t a

“constitutional person” yet, there could be quasipersonhood somehow protecting the fetus; after all,

there may be laws criminalizing a third party (e.g., a

street thug) harming a pregnant woman’s fetus.

Too, the fetus might have some “executory

interest” in life, property, etc., on expectation of

constitutional personhood. So, considering

everything supra, the Court may have excellent

reason, prima facie, to uphold the Act.

But the other side may now deserve some

attention…

14

III. NOT EVERY ABORTION MAY BE

IN THE WOMB; OR, THE BREADTH

OF WHAT “PRO-LIFE” MAY MEAN

Given that there are many needless deaths of

born people, not just unborn people, some may ask,

“What is an abortion?” This question is raised by the

tense conversation between Kay (Diane Keaton) and

Michael Corleone (Al Pacino) in The Godfather Part

II (Paramount Pictures 1974), following Kay’s

apparent miscarriage, when she says,

It wasn’t a miscarriage. It was an

abortion. An abortion, Michael. Just

like our marriage is an abortion.

Something that’s unholy and evil. I

didn’t want your son, Michael! [etc.]

, before he hits her in the face, id. While not

everyone would agree that Kay should have had the

abortion: clearly, Michael, the ruthless gangster lord

who does violence to his wife, may be to blame in

some sense.

And on a broader level, the “rape and violenceagainst-women culture” that infests society, where a

former President can boast about grabbing women’s

genitals, and where there are many incidents of rape

and sexual harassment that still occur even after

#MeToo or other abuse-awareness movements

became prominent, may be responsible in part for

many abortions.

Indeed, fear of her own husband’s potential

violence led Geraldine “Gerri” Santoro to bleed to

death in a motel room from an unsafe self-inflicted

abortion. Wikipedia, Gerri Santoro, https://en.

15

wikipedia.org/wiki/Gerri_Santoro (as of 17:45 GMT,

June 25, 2021):

(Available at https://upload.wikimedia.org/wikipedia/

en/thumb/0/02/Gerri_Santoro_%281964%29.jpg/250p

x-Gerri_Santoro_%281964%29.jpg) While Santoro

attempted an abortion at 28 weeks, Santoro Article,

supra, not by 15 weeks: still, her unfortunate death

is and has long been a symbol of the maternal death

that can occur when legal abortions aren’t available.

(Amicus isn’t supporting abortion rights here, but

merely trying to provide balance by offering a photo

of a dead body from an illegal abortion, since he has

already shown a photo of an aborted fetus supra.)

Sadly, though, there may be real-life “Aunt

Lydias”, see Margaret Atwood, The Handmaid’s Tale

(1985) (Hulu/MGM Television 2017-present),

sanctimonious and often outwardly-religious women

who needlessly deride or oppress other women re

their fertility choices:

16

Aunt Lydia (Ann Dowd) getting pokey with June

Osborne/“Offred” (Elisabeth Moss). (Courtesy of SBS

Australia, available at https://www.sbs.com.au/

topics/sites/sbs.com.au.topics/files/styles/full/public/6

554fe72-26fc-47ca-9bd8-068b70c3198b_1525739579

.jpeg?itok=ODDmH6uy&mtime=1525739650)

And it would be remiss not to mention our

current, horrific political/social situation. For

example, there is QAnon (perhaps a.k.a. “al-QAnon”,

given its terroristic tendencies which surfaced on

January 6, 2021), which subsists on myths that

Democrats are satanic pedophiles.

True, there are Democrats (and Republicans…)

and “Hollywood” people who have been soft on, or

participated in, pedophilia and/or other sexual

misconduct and child abuse. There have been Jeffrey

Epsteins and Harvey Weinsteins—not to mention

Donald Trump(s) threatening to “grab women’s -----”

or such.

But while it is good to oppose evil sexual behavior

and child abuse, storming the U.S. Capitol is not the

way to do it. Nor is bombing abortion clinics.

17

It is disturbing to see someone who downplays

the 1/6/21 attack and the deaths of black men (or

others) in police custody, attacks mask-wearing and

COVID-19 vaccination, and gets excited by the death

penalty, call himself “pro-life”. The cognitive

dissonance is excruciating. Thus, the vices of some

“pro-choice” people, supra at 4-8, could also be

ascribed to some “pro-life” people.

Someone who refuses to mask or be vaccinated,

and kills himself or others because of that, may

functionally be an abortionist. Including being a per

se abortionist, if he infects and kills a pregnant

woman… and her fetus.

Cf. also, e.g., the film First Reformed (A24 [Films]

2017), in which, see id., Mary Mensana (Amanda

Seyfried) laments to Pastor Ernst Toller (Ethan

Hawke) that her husband wants her to have an

abortion because he thinks climate change, and the

decaying world it brings, make it improper to have

children. So, global warming can produce fetal

death.

In a sense, George Floyd (RIP) was aborted. So

was Officer Brian Sicknick (RIP). So were all the

victims of COVID-19 who needlessly died (RIP)

because politicians told people that masks or

vaccinations were unnecessary.

Even Pope Francis, who compared abortionists to

hitmen, supra at 11, 13, draws some equivalence

between non-abortion issues and abortion; see, e.g.,

Amanda Michelle Gomez, Pope admonishes

Catholics that poverty and immigration are just as

important issues as abortion, ThinkProgress, Apr. 9,

2018, 10:38 a.m., https://archive.thinkprogress.org/

pope-francis-abortion-catholics-social-justice-issues-

18

a522c2efe876/. So, to call needless deaths “abortions”

even if they aren’t fetal deaths, has some legitimacy.

Given all the above, then: what “calculus of

death” should the Court use in analyzing abortion

rights? Is it worth, say, the death of a million

fetuses, if that would prevent one Gerri Santorostyle death-from-self-induced-abortion happening?

Are ten million embryos the same value as ten

partially-born fetuses (if we value more-developed

fetuses more than less-developed ones)?

Thus, the Court might be tempted to leave it all

up to the States: but what that could mean, given

political realities in the U.S., is that the life of a

mere zygote is more important than a Gerri Santoro

death in some “red” States; while the death of an

infinite number of fetuses of up to c. 23 weeks’ (or

more?) development is less important than the life of

a Gerri Santoro in some other, “blue” States. Is that

extreme, “patchwork” variation between States

desirable?

Again, some kind of “moderate” solution from the

Court could be best at present. And one type of

“moderation” includes considering both “supply” and

“demand” factors re abortion.

IV. SUPPLY AND DEMAND IN THE

ABORTION DEBATE: REGULATING

ABORTION STRONGLY, BUT PROVIDING

VIABLE ALTERNATIVES, SO THAT FEWER

WOMEN WOULD CHOOSE ABORTION

While Mississippi would reduce the “supply” of

abortion by banning it after 15 weeks, the “demand”

side is also crucial. Why do people choose to abort in

19

the first place? What appealing alternatives are

there?

Charles C. Camosy, in Common ground in the

abortion debate is obvious: Support mothers.,

America, July 1, 2021, https://www.americamagazi

ne.org/politics-society/2021/07/01/common-groundabortion-camosy-240961, insightfully notes,

Here is the obvious common ground

on the “supply” side of the abortion

debate. Though majorities say they

support Roe v. Wade, they do not

actually support current abortion law in

the United States …, which currently

doesn’t allow for restrictions before

about 22 weeks. Americans seem to

want a much more pro-life abortion

policy — something close to the 12-week

threshold in Finland and Denmark.

The objection is that the U.S. doesn’t

have the social supports for mothers

and families that these countries have.

If we did, we could afford to have more

restrictive laws.

…I happen to think the standard

established in Casey that abortion

restriction could not place “undue

burden” on women makes little sense

without thinking about the level of

social support. Regardless, there is also

obvious common ground to be had on

the “demand” side of abortion as well —

the need to take care of the babies who

would be born to women who now

choose abortion. Pro-lifers and pro-

20

choicers should both want to help

women and families be in a place to

choose to have another child.

….

[L]et’s face it, it isn’t easy to dialogue

and plan and strategize with someone

who has diametrically opposed views to

our own on important issues. But[, w]e

must do this not just because Jesus

prayed for unity before he died, but

because the lives of women and children

depend on us doing so.

Id. See also, e.g., Nicholas Kristof, She’s Evangelical,

‘Pro-Life’ and Voting for Biden, N.Y. Times, Oct. 21,

2020, https://www.nytimes.com/2020/10/21/opinion/

evangelicals-election-biden.html, in which late

evangelist Billy Graham’s granddaughter Jerushah

Duford opines,

“I genuinely wish the Democratic Party

would have a greater value for life

inside the womb,” Duford said. “Yet I

equally wish the Republican Party

would place a greater value on life

outside the womb. You cannot choose

just one and define yourself as pro-life.”

Id. (Ironically, Duford and fellow “evangelicals for

Joe Biden” have since expressed discomfort with

Biden’s not supporting pro-life causes as much as

they would have liked, see Laycie McClain, Pro-Life

Evangelicals Who Supported Biden Are Upset, March

9, 2021, ChurchLeaders.com, https://churchleaders.

com/news/391919-pro-life-evangelicals-who-

21

supported-biden-are-upset.html. But Duford’s point

in Kristof’s article supra is still worth appreciating,

for noting the “schizophrenia” affecting the Nation’s

two major political parties re “pro-life” issues.)

Also ironically, then, it may be the kinds of social

supports that Democrats often champion, which may

make more justifiable the abortion restrictions that

Republicans often champion. This may be politically

counterintuitive, but logically sensible. If the State

wants to interfere with women’s bodies coercively

(restrict abortion), perhaps there should be some

kind of serious “compensation” or support to those

women.

(In terms of a “bargain”: women might ask,

“You’re taking some of my abortion rights away:

what am I getting in return?”)

Even more ironically, Biden Administration plans

to fund abortion with public money, might make it

more justifiable for Mississippi to restrict abortion,

since women couldn’t complain that they can’t afford

an abortion, and issues of “inequitable access to

abortion for poor women” would be less relevant.

(Amicus isn’t supporting the Administration’s plans;

he is merely noting the ironic elements.)

V. THE COURT MAY CONSIDER WHETHER

MISSISSIPPI OFFERS SUFFICIENT

SUPPORT TO PREGNANT WOMEN, IN

CONSIDERING THE LEGALITY OF THE

STATE’S EXPERIMENT WITH A 15-WEEK BAN

Thus, the Court, in the interest of fairness, may

want to ponder whether Mississippi, in its burdening

of pregnant women by the 15-week limit, is also

22

ensuring those women have decent alternatives to

abortion. Some would say Mississippi should also

ensure that women have ample access to abortion in

the first 15 weeks. Amicus is not here to support

abortion—nor is Mississippi—, so, if that State does

not offer copious abortion access, it should offer

copious help to pregnant women so that the “demand

side” is addressed, and more women wouldn’t even

want to abort in the first place.

(Thus, the Biden Administration’s offer of money

to subsidize abortion wouldn’t be needed; and women

would have a live baby instead of a dead one, if they

take money to support “terminating the pregnancy”

by having the baby, instead of money to procure an

abortion.)

Exactly what kind and level of support for

women, Amicus isn’t going to say. He is not a

maternal- or child-welfare expert; and Respondents

and their amicae/i may offer massive detail, anyway,

about how Mississippi supposedly falls short of

giving poor women and minorities fair treatment.

However, some benchmarks could be taken from the

countries, such as France, Ireland, Argentina, etc.,

that do restrict abortion after the first trimester.

Also, for example, Mississippi could adopt the

Medicaid expansion of the Patient Protection and

Affordable Care Act (Pub. L. 111-148, 124 Stat. 119

(2010), as amended by the Health Care and Educ.

Reconciliation Act of 2010, Pub. L. 111-152, 124 Stat.

1029 (2010) and the Tax Cuts and Jobs Act of 2017,

Pub. L. 115–97, 131 Stat. 2054 (2017)). Now that

California v. Texas, 593 U.S. ____ (2021) is over, and

the forces trying to destroy “Pelosicare” (a.k.a.

“Obamacare”) have lost yet again, maybe reality will

23

set in and Mississippi lives can be saved by adopting

a program that expands health care to many needy

people.

Mississippi lives matter: one reason for writing

this brief. To play politics and deny needed health

care to Mississippians may not impress everyone

who monitors the way that women, the poor, and

minorities are treated, especially with the equities of

abortion rights in question. “Do unto others as you

would have them do unto you”, supra at 4.

And, e.g., are pregnancy tests free in Mississippi?

Are all rape kits tested? Is the State going to

publicize the 15-week limit enough so that no one

will be surprised by it? Etc.

Of course, the sensitive question of whether it is a

constitutional requirement that poor and minority

women have the “positive liberty” to have an

abortion (e.g., enough money to have an abortion, as

opposed to “negative liberty”, i.e., the lack of open

legal bans on having the abortion), may need

resolution.

Some may complain that it disrespects poor or

minority women’s agency, not to guarantee that they

have a positive liberty of abortion access. But this is

debatable. Again, with support for women to have

the baby instead of having an abortion, there is a

live baby instead of a dead one, which sounds like a

positive thing.

Too, the disparate effect of funding abortion for

poor or minority women may mean not only public

involvement in killing of unborn children from a poor

or minority background; it may, of course, mean a

larger absolute number of killings of such children,

24

poor and minority. This may be redolent of eugenics,

and some of the more unsavory things Margaret

Sanger did as a birth-control advocate. Cf. the Dead

Kennedys’ punk rock song Kill the Poor (Cherry Red

Records 1980),

Behold the sparkle of champagne

The crime rate’s gone

Feel free again

Oh, life’s a dream with you, Miss Lily White

Jane Fonda on the screen today

Convinced the liberals it’s okay

So let’s get dressed to dance away the night

While they

Kill kill kill kill kill the poor [x3]

Tonight

Id. (Available at https://www.youtube.com/watch?v=

L8zhNb8ANe8)

In any case, the Act is an experiment, and

entering terra incognita. For decades, Roe v. Wade

(410 U.S. 113 (1973)) has prevented banning of previability abortion. So, is the Act going to work? Will

it be fairly enforceable? Hopefully so, but that is

conjectural right now. If the experiment works, and

is fair to the poor and others, then a 15-week ban

could also work in other States nationwide.

Also, it may be possible in the future to lower the

weeks for legal abortion even further. Even if the

limit is not lowered to 6 weeks (“heartbeat ban”) or

zero weeks, it might be lowered, e.g., to 12 weeks

after gestation, which was the allowed limit in

France from 1975 to 2001, Abortion in France, supra

at 9-10, and is the current limit in Ireland, Abortion

25

in Ireland, supra at 10, showing that a 12-week limit

isn’t inherently some horrible misogynist war on

women.

(Of course, a limit as stringent as 12 weeks,

would invite corresponding State measures to

support pregnant women and children appropriately,

to compensate for the imposition on women’s choices

by a 12-week limit. And allowing a 12-week limit

right now, instead of 15 weeks, could seem like

lunacy.)

If the Court upholds Mississippi’s law, but that

State offers insufficient support for women and

children, that would make a mockery of the term

“pro-life”, and might shamefully hurt innocent

people.

One silver lining of remanding the case to lower

courts for further consideration, is that that would

give time for Mississippi to make improvements to

its support policies, or relevant abortion policies.

For example, although that State offers seven

days following a child’s birth during which the child

may be dropped off, permanently, to an emergency

medical services provider to be taken care of, Miss.

Code Ann. § 43-15-201 (2001) (amended 2020): that

time seems a little slim to Amicus, almost a token,

given the weight of the choice the woman has to

make. Maybe it should be seven weeks, or 70 days,

instead of a mere seven days.

And, as Amicus noted supra at 7, Mississippi

could add a ban on aborting fetuses because of their

perceived likely sexual orientation. This would show

that the State opposes hate crimes and homophobia,

and would make abortion law more humane and

equitable, saving lives from needless destruction.

26

So, as or after Mississippi makes any needed

improvements, the lower court(s) could then opine

about whether the State is offering women and

children (born and unborn) the fairness they

deserve, considering the burdens that the Act or

other abortion restrictions place on women. Then, as

needed, this Supreme Court can offer its own opinion

on the matter.

VI. DISCUSSION OF PROSECUTING

ABORTIONS AFTER COERCED SEX (RAPE,

INCEST, ETC.) MAY BE NECESSARY FOR

FAIR CONSIDERATION OF ABORTION LAW

Speaking of the Court, one factor that risks being

ignored by the Court is the factor of coerced sexual

activity, e.g., rape, incest, harassment. How fair is it

to prosecute abortions if the woman did not consent

to be impregnated in the first place? Are there

women who have abortions after being raped, who

will get more jail time than Bill Cosby did?

This is a very unpleasant issue, because the

children of a coerced relationship are just as human

as anyone else. Few currently-living children of rape

victims would want to go back and have been

aborted, Amicus is guessing. However, again, to

prosecute abortion in case of coerced sex, may seem

unfair. An ugly conundrum. What is to be done?

Amicus is not saying that there can never be

prosecution of abortions in coerced-sex situations.

However, the Court may want to think about how

much prosecution (if any) is fair. (And should

guidelines on the possibility, and extent, of

prosecution of abortion in coerced-sex situations, be

constitutionalized, e.g., decided at this Court’s level;

27

or should it all be left up to the mercies, tender or

not, of local prosecutors?)

For the sake of example: what if the maximum

penalty for abortion in case of coerced sex were

twenty dollars (or even just one dollar)—waivable for

the truly poor, if women, not their doctors, were

fined—, plus an infraction (like a traffic ticket), and

having to receive a pamphlet detailing alternatives

to abortion, such as adoption? The fine (or “civil

assessment”, if the term “fine” is too offensive) would

go to a fund to help rape victims and pregnant

women.

Would that be such a terrible punishment? $20,

infraction, pamphlet? It doesn’t seem too damaging,

but it might make at least some women, or doctors,

think more about whether they want to take the

irrevocable step of being involved in abortion.

Of course, many pro-choice people will complain

that is it monstrous to have any penalty against a

woman who has an abortion after coerced sex. And,

many pro-life people will complain that the $20-etc.

penalty is a mere slap on the wrist, and say that,

instead, the law should throw the book at anyone

who has any abortion. But Amicus is just trying to

inspire the Court to think creatively, and fairly.

(Fortunately, there are no known rapists or

sexual harassers on the Court. If there were, and

they ruled in ways that seemed misogynist, that

would be a bad thing.)

VII. ABORTION POLLS ARE DISPARATE, BUT

MANY INDICATE PUBLIC SUPPORT FOR

SERIOUS LIMITS ON LEGAL ABORTION

28

We now turn to the People’s opinion on abortion.

Notable polls on abortion are of some help in the

debate, even though the Court isn’t obliged to follow

public opinion. But whether or not “th’ Supreme

Court follows th’ iliction returns”, as Finley Peter

Dunne’s fictional “Mr. Dooley” noted (1901), it

doesn’t hurt if a Court opinion also chimes with the

People’s opinion.

On that note, several polls support the idea that

Americans disapprove of legalizing second- (and

third-) trimester abortions.

First, years of Gallup polls consistently show, in

polls extending from 1996 to 2018 (Table 15, of

unnumbered tables), Abortion, Gallup News,

https://news.gallup.com/poll/1576/abortion.aspx, that

c. 60-66% of Americans believe abortion should

generally be legal during the first three months of

pregnancy; but c. 64-71% of Americans believe

abortion should generally be illegal during the

second three months, and c. 80-86% of Americans

believe abortion should generally be illegal during

the last three months of pregnancy. Tbl. 15.

Clearly, 22 consecutive years of polls are serious

evidence that roughly two-thirds of Americans want

second-trimester abortions to be generally illegal.

This chimes with what Mississippi wants.

It also chimes with another, more recent poll: see

David Crary & Hannah Fingerhut, AP-NORC poll:

Most say restrict abortion after 1st trimester, AP

News, June 25, 2021, https://apnews.com/article/

only-on-ap-us-supreme-court-abortion-religionhealth-2c569aa7934233af8e00bef4520a8fa8,

29

61% of Americans say abortion

should be legal in most or all

circumstances in the first trimester of a

pregnancy. However, 65% said abortion

should usually be illegal in the second

trimester, and 80% said that about the

third trimester.

Id.

However, other polls say different things. Even

other tables in the same page of Gallup polls cited

supra at 28, seem to contradict Table 15 and the APNORC poll. Table 4 shows for the May 3-18, 2021

period that 52% of respondents say abortion should

either be legal only in a few circumstances, or never

be legal at all, id. This seems to contradict, in a prolife direction, the Gallup and AP-NORC poll claims,

supra, that c. 60%+ Americans approve of legal firsttrimester abortion.

By notable contrast, Table 9 from the same page

of Gallup polls cited supra, says, id., that 56% of

Americans oppose a ban on abortions after the 18th

week of pregnancy. This seems to contradict, at least

partially, the claim of table 15, supra, that c. 65%+

Americans disapprove of legal second-trimester

abortion—so the result goes in a pro-choice direction,

and also seems to contradict Table 4, supra, which

claimed that 52% of Americans wanted only a few

abortions to be legal.

So, what is to be done when the polls contradict

one another? Are the polls confused, or the pollsters,

or the people polled? In any case, the Court, if it

wants to approve Mississippi’s 15-week ban, has at

least some evidence (Table 15 and the AP-NORC

poll, supra, showing American disapproval of second-

30

trimester abortions, perhaps for over two decades) in

its favor—although the pro-choice side may seize on

other polls favoring them more.

Speaking of pro-choice, one now remembers a

famous pro-choice Justice:

VIII. RESPECTING THE LEGACY

OF JUSTICE GINSBURG, IN

CONSIDERING THE INSTANT CASE

Following the death last year of Justice Ruth

Bader Ginsburg (RIP), there is a new Court, insofar

as there is a new Member. Each Court will do things

in its own way, as is its right. However, it would be

unwise to forget Ginsburg’s legacy, a legacy too

momentous to describe fully here. Regardless of her

actual foot size, she left some large shoes to fill, so to

speak.

Amicus often disagreed with that Justice on

abortion issues, but still respected her greatly. On

that note: even though the present Court may likely

rule differently in Dobbs than Ginsburg would’ve

liked, still, her thoughts, style, and feminism should

be of inspirational value.

When the Court opines, will it have adequately

considered the well-being of the pregnant woman,

not just the woman (or man) in the womb, the fetus?

Will the Court’s opinion be accusable of misogyny (de

facto, not per se…); or will it have truly tried to come

to grips with the travails of what it means to be

pregnant for c. 9 months, especially if the pregnancy

was unwanted (and possibly the result of rape or

other coerced sex)? Can the Court show respect to

31

women’s equality with men, and also show due

respect to both the born and the unborn? Etc.

(Courtesy of GentlyWeepingGuitar_, Young Ruth

Bader Ginsburg, Reddit, c. 2019, available at

https://preview.redd.it/dyy9l0vmub921.jpg?width=64

0&crop=smart&auto=webp&s=01295477a5aaf77300

cc0de2525f597e8c4d889e)

32

Naturally, the legacies of other Court alumnae/i,

such as Justices Sandra Day O’Connor, Antonin

Scalia (RIP), Anthony Kennedy (“of unknown

whereabouts”), etc., can also be looked to for

guidance. However, Ginsburg receives pride of place

here since she is the most recent departure from the

Court, and because of her dual successes as a

women’s-rights advocate and as a mother of

children. If the Court can pen an opinion with which

Ginsburg might disagree, but of which she wouldn’t

be too ashamed, that could be a wonderful thing.

IX. AN EXTREME RULING IN EITHER

DIRECTION COULD DEVASTATE

THE CREDIBILITY OF THE COURT; OR,

AVOIDING THE “CONSTITUTIONAL BENDS”

Finally: Amicus, as always, is concerned about

the credibility of the Court. An extreme ruling by the

Court, in either direction, could hurt the Court’s

standing among thinking people. (The personal

stakes are vanishingly small for Amicus himself, as

he is not (currently) on the Court, nor is it likely he

is going to get pregnant. But the stakes for the

Court, and the Nation, are enormous.)

(A quick note here on “federal vs. State abortion

regulation”: some folk claim they want abortion

issues returned to the States. But one must be

careful what one wishes for at times. Do those folk,

say, want all federal curbs on partial-birth abortion

vacated, returning the issue to the States? Plenty of

States might allow partial-birth abortion, if possible.

If people just want maximum bans on abortion,

federal-plus-State, period, perhaps they should be

33

honest about it, instead of saying they want

everything sent back to the States.)

…Let us say, for example, that the Court leaves

Roe and Casey intact, and overturns Mississippi’s 15week ban Act, out of fear of the “greenhouse effect”

produced by colossal volumes of hot air from pundits

(sometimes left-of-center), people to whom abortionon-demand is more sacred than life itself, practically.

That would be one unsuitable extreme:

overturning a sensible, moderate ban on post-15weeks abortions, just because that ban would be

“unfashionable” among certain rigid commentators

who haven’t noticed that it isn’t 1973 anymore, and

women in 2021 have far more opportunities, power,

and contraceptives than they did five decades ago.

However, the other extreme may be frightening

as well. Let us say that the Court not only upholds

the 15-week ban, but also goes further, allowing

States a “heartbeat ban” (at c. 6 weeks’ pregnancy),

or even a full ban (0 weeks’ pregnancy), on abortion.

Amicus has no fondness for abortion—he wasn’t

aborted himself—, but there are many issues here.

First, would those bans be enforceable, or fairly

enforceable? Especially given the large numbers of

abortions in the first trimester, compared to smaller

numbers later on.

In Mississippi, would a wealthy white Daughter

of the Confederacy be prosecuted for abortion to the

same extent as a poor, African-American janitor or

school-lunch worker would be? Would women be

prosecuted for miscarriages?

Second, it could look like a “bait-and-switch”,

even “dirty” or “slimy”, for the Court to have granted

34

certiorari to a case involving a 15-week ban, but then

slide way down the scale and allow bans at six, or

zero, weeks. Would the Court want to look sneaky,

underhanded, or driven by personal political/

religious agendas? e.g., Catholic-vs.-Jew disputes?

(Fortunately, there may be no known Members of

the Court associated with fanatical religious groups

which encourage the submissiveness of women. If

there were, and they ruled in ways that seemed

misogynist, that would be unpleasant.)

It might even, ironically and tragically, hurt the

pro-life cause to have premature rulings in favor of

six-week or zero-week abortion limits. (If Roe’s

“viability bright-line test” disappears: would

Mississippi find six-week, or zero-week, abortion

limits, with undue-burden tests, constitutional, or

not?) The colossal backlash that could result if such

stringent limits were passed now, might lead many

more Americans to support codifying Roe, or other

extreme pro-choice measures.

However, if Americans are convinced that the

Court is sensible and non-partisan, then moderate

measures like a 15-week ban might not only thrive,

but also serve as a bridge to bans at a lower number

of weeks, in the future, when conditions for women

have improved enough that such bans might seem

fair instead of outrageous.

…“The bends” (decompression sickness) is a

condition wherein a diver comes up from the deep

too quickly and suffers horrible pain because of toorapid change in pressure. Amicus is concerned about

the “Constitutional bends” which could result from

too rapid a shift, an overly-shocking deprivation of

abortion rights that have been traditional since Roe.

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Roe shouldn’t be considered some sainted “superprecedent”; but it is, admittedly, a precedent of some

decades’ vintage.

Maybe, just maybe, a Court-allowed 6-week or 0week limit on abortion would somehow work

wonderfully and have no malign repercussions,

despite being a shock 75% reduction, or 100%

reduction, from a 24-week limit.

Then again, maybe blueberry muffins—alreadybuttered ones—will fall from the sky, so that no one

will ever have to buy them at a store again. Maybe

pigs will fly, too, so that bacon will happily land in

your frying pan by itself, free of charge. One can

always hope.

So. if the Court sticks to okaying Mississippi’s 15week ban, as long as it’s equitable (adequate

healthcare/tax credits for pregnant women and their

children, etc.), that could avoid either the “bends”

which might flow from a 6-week or 0-week limit on

abortion, or the stagnation which could come from

wallowing in the c. 24-week limit that currently

exists. If a 15-week limit is a workable “golden

mean” for now, Amicus would not be surprised at all.

* * *

“We must love one another or die.” W.H. Auden,

September 1, 1939 (1939). Amicus has used this

quote before, but it is a useful quote. It is apposite to

the atmosphere of hatred, violence, polarization that

infests America today.

And it reminds us that love between parents and

children, born or unborn, is a beautiful thing, as is

society’s love for nurturing everyone, parent or child,

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regardless of race, political party, or other

characteristics, not only in the womb but also

outside of it.

The Court, although few of its Members may ever

have been pregnant—pregnancy being a useful

experience for understanding abortion—, is itself

now pregnant, as it were, with the instant case,

gravid with the terrible swelling weight of all of

Dobbs’ included or implied controversies and

challenges; and one can only hope for a successful

delivery.

If the Court were to fail to deliver a worthwhile

opinion, and the whole experience were abortive, this

would be a sad thing. Again, Justice Ginsburg’s

legacy of articulateness, passion for social justice,

and concern for women’s rights, may be of help to the

Court.

Hopefully, Amicus’ brief can help midwife an

auspicious opinion from the Court, and/or from any

lower court(s) to whom the case is remanded.

But a good Court opinion may have many

mothers and fathers, so Amicus is again grateful for

the input of both “pro-life” and “pro-choice” sides (if

the input is sensible; see once more Citizen Ruth,

supra at 2, mocking the fanaticism of extremists on

both sides), and the talents of various parties or

amicae/i in helping the Court’s opinion work to “form

a more perfect Union …. and secure the Blessings of

Liberty to ourselves and our Posterity”, U.S. Const.

pmbl.

37

CONCLUSION

Amicus respectfully asks the Court to think

carefully about how Mississippi’s, and the Nation’s,

laws and policies should respect and protect both the

born and the unborn—“ourselves and our Posterity”,

as noted supra—; and humbly thanks the Court for

its time and consideration.

July 19, 2021

Respectfully submitted,

David Boyle

Counsel of Record

P.O. Box 15143

Long Beach, CA 90815

dbo@boyleslaw.org

(734) 904-6132