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.
Supreme Court briefJul 22, 2021
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No. 19-1392
IN THE
Supreme Court of the United States
_______________________
THOMAS E. DOBBS, M.D., M.P.H., IN HIS OFFICIAL
CAPACITY AS STATE HEALTH OFFICER OF THE MISSISSIPPI
DEPARTMENT OF HEALTH, et al.,
Petitioners,
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, ON BEHALF
OF ITSELF AND ITS PATIENTS, et al.,
Respondents.
On Writ of Certiorari to the United States Court
of Appeals for the Fifth Circuit
BRIEF OF AMICUS CURIAE
ALABAMA CENTER FOR LAW AND LIBERTY
IN SUPPORT OF PETITIONERS
______________________________________
MATTHEW J. CLARK
Counsel of Record
ALABAMA CENTER FOR LAW
AND LIBERTY
2213 Morris Ave., Fl. 1
Birmingham, AL 35203
(256) 510-1828
matt@alabamalawandliberty.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... iv
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF THE ARGUMENT ........................... 2
ARGUMENT ............................................................... 5
I.
The Viability Rule Should Be Discarded ............ 5
A.
The Viability Rule Does Not
Comport with Other Areas of the
Law Addressing the Rights of
Unborn Children ......................................... 5
1. Criminal Law ......................................... 5
2. Tort Law ................................................. 8
3. Property,
Guardianship,
Family, and Healthcare Law ................. 9
4. Conclusion ............................................ 11
B.
Taken To Its Logical Conclusion,
the Viability Rule Could Permit
Families to Kill Children Who
Have Already Been Born........................... 11
ii
II.
This
Court
Should
Take
the
Opportunity to Overrule Roe and Its
Progeny. ............................................................. 14
A.
If the Court Revisits the Viability
Standard, Then It Cannot Escape
the Question of Whether the
Constitution Protects a Right to
Abortion at All ........................................... 14
B.
Roe
and
Its
Progeny
Are
Unconstitutional. ....................................... 16
1. Roe Does Not Comport with
Either the Text or Original
Meaning of the Constitution ................ 16
2. Roe Does Not Comport with
This
Court’s
Traditional
Substantive
Due
Process
Jurisprudence
Under
Washington v. Glucksberg.................... 17
3. Dred Scott, Lochner, and Roe:
the Substantive Due Process
“Hall of Shame” .................................... 19
4. Conclusion: The Due Process
Clause Does Not Protect the
Right to an Abortion ............................ 24
iii
B.
The Doctrine of Stare Decisis Does
Not
Bar
This
Court
from
Overruling Roe and Casey ......................... 25
C.
The Court Should Not Only
Overrule Roe but Also Hold That
the Constitution Protects the
Child’s Right to Life .................................. 27
CONCLUSION ......................................................... 31
iv
TABLE OF AUTHORITIES
Cases
Page
Arcadia v. Ohio Power Co., 498 U.S. 73
(1990) .................................................................... 15
Citizens United v. FEC, 558 U.S. 310 (2010)............ 15
City of Sherrill v. Oneida Indian Nation of
N.Y., 544 U.S. 197 (2005) ..................................... 15
District of Columbia v. Heller, 554 U.S. 570
(2008) .................................................................... 29
Doe v. Bolton, 410 U.S. 179 (1973) ...................... 17, 23
Dred Scott v. Sandford, 60 U.S. 393
(1857) .....................................................3, 19-23, 27
Ex parte Ankrom, 152 So. 3d 397
(Ala. 2013) ........................................................ 6-10
Ex parte Hicks, 153 So. 3d 53 (Ala. 2014)................. 28
Ex parte Phillips, 287 So. 3d 1179
(Ala. 2018) ..................................... 4, 6-8, 10, 26, 28
Gamble v. United States, 139 S.Ct. 1960
(2019) .................................................................... 25
Gibbons v. Ogden, 22 U.S. 1 (1824) .......................... 29
v
Gonzalez v. Carhart, 550 U.S. 124 (2007) ................ 30
Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 3, 22
Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012)
(Hamilton I) .......................................................... 26
Hamilton v. Scott, 278 So. 3d 1180 (Ala.
2018) (Hamilton II) .............................................. 28
In re Fathima Ashanti K.J., 558 N.Y.S. 2d
447 (Fam. Ct. 1990) .............................................. 10
Janus v. AFSCME, Council 31, 138 S.Ct.
2448 (2018) ............................................5, 11, 25-27
Lochner v. New York, 198 U.S. 45 (1905) .... 3-4, 19-23
Obergefell v. Hodges, 576 U.S. 644 (2015) .....16, 19-20
Ohio v. Akron Ctr. for Reproductive Health,
497 U.S. 502 (1990) .............................................. 24
Planned Parenthood v. Casey, 505 U.S. 833
(1992) ................................. 11, 14, 16, 19, 22, 25-26
Ramos v. Louisiana, 140 S.Ct. 1390 (2020) .............. 25
Robinson v. Marshall, 415 F. Supp. 3d 1053
(M.D. Ala. 2019) ..................................................... 1
Roe v. Wade, 410 U.S. 113 (1973) ..................... passim
vi
Smith v. Org. of Foster Families for Equal. &
Reform, 431 U.S. 816 (1977) ................................ 13
Stinnett v. Kennedy, 232 So. 3d 202 (Ala.
2016) ..................................................................... 28
Timbs v. Indiana, 139 S.Ct. 682 (2019) .............. 16, 19
Washington v. Glucksberg, 521 U.S. 702
(1997) .............................................................. 17-18
West Coast Hotel Co. v. Parrish, 300 U.S. 379
(1937) ...................................................................... 5
Constitutions, Statutes, and Regulations
42 Pa. Const. Stat. Ann. § 9711 .................................. 7
Ala. Code § 26-23-H-1 .................................................. 1
Ariz. Rev. Stat. § 13-751 .............................................. 7
Fla. Stat. Ann. § 775.021 ............................................. 7
Fla. Stat. Ann. § 782.09 ............................................... 7
Ind. Code Ann. tit. 11, § 35-50-2-9 .............................. 7
Tenn. Code Ann. § 39-13-204 ...................................... 7
U.S. Const., amend. XIII ..................................... 21-22
U.S. Const., amend. XIV ................................... passim
vii
Other Authority
A. Raymond Randolph, Before Roe v. Wade:
Judge Friendly’s Draft Abortion Opinion,
29 Harv. J. L. & Pub. Pol. 1035 (2006) .......... 22-23
Abortion Statistics, National Right to Life
Committee,
https://nrlc.org/uploads/factsheets/FS01A
bortionintheUS.pdf (last visited July 21,
2021) ..................................................................... 21
America’s Wars, U.S. Department of
Veterans
Affairs,
https://www.va.gov/opa/publications/facts
heets/fs_americas_wars.pdf (last visited
July 21, 2021) ....................................................... 21
Amy
Coney
Barrett,
Precedent and
Jurisprudential Disagreement, 91 Tex L.
Rev. 1711 (2013) ................................................... 25
Brief for Respondent Louis W. Sullivan, Rust
v. Sullivan, 500 U.S. 173 (1991), available
at
https://www.justice.gov/sites/default/files/
osg/briefs/1990/01/01/sg900805.txt
(last
visited July 21, 2021) ........................................... 32
Charles I. Lugosi, Conforming to the Rule of
Law: When Person and Human Being
Finally Mean the Same Thing in
Fourteenth Amendment Jurisprudence, 4
Geo. J. L. & Pub. Pol’y 360 (2007) ....................... 28
viii
Chief Justice Parker, Alabama Judicial
System,
https://judicial.alabama.gov/CourtMembe
rBio/ViewBio?id=3 (last visited June 16,
2021) ....................................................................... 6
David Smolin, Equal Protection, in The
Heritage Guide to the Constitution (2005)..... 29-30
Documenting Numbers of Victims of the
Holocaust and Nazi Persecution, United
States Holocaust Memorial Museum,
https://encyclopedia.ushmm.org/content/e
n/article/documenting-numbers-ofvictims-of-the-holocaust-and-nazipersecution (last visited May 24, 2021)............... 24
Erica
Bachiochi,
Embodied
Equality:
Debunking Equal Protection Arguments
for Abortion Rights, 34 Harv. J. L. & Pub.
Pol. 889 (2011) ...................................................... 31
Esther Slater McDonald, Note: Patenting
Human Life and the Rebirth of the
Thirteenth Amendment, 78 Notre Dame
L. Rev. 1359 (2003)............................................... 18
Francis J. Beckwith, Defending Life: A Moral
and Legal Case Against Abortion Choice
(Cambridge Univ. Press 2007) ............................. 12
Joshua Craddock, Protecting Prenatal
Persons: Does the Fourteenth Amendment
ix
Prohibit Abortion?, 40 Harv. J. L. & Pub.
Pol’y 539 (2017) .............................................. 28-29
Michael Stokes Paulsen, The Plausibility of
Personhood, 74 Ohio St. L.J. 13 (2013) ............... 28
Michael Stokes Paulsen, The Worst
Constitutional Decision of All Time, 78
Notre Dame L. Rev. 995 (2003) ........................... 26
Nebraska Statehood, History Nebraska,
https://history.nebraska.gov/tags/nebrask
a-statehood (last visited May 24, 2021)............... 17
Neil Gorsuch, A Republic, If You Can Keep It
(2019) .................................................................... 20
States and Capital Punishment, NAT’L
CONFERENCE OF STATE LEGISLATURES,
https://www.ncsl.org/research/civil-andcriminal-justice/death-penalty.aspx (last
visited July 21, 2021) ............................................. 6
The Declaration of Independence (U.S. 1776)..... 29-30
The Reconstruction Amendments (Kurt T.
Lash, ed., 2021) .................................................... 30
William Blackstone, Commentaries ................ 9, 18, 29
1
INTEREST OF AMICUS CURIAE 1
Amicus Curiae Alabama Center for Law and
Liberty is a conservative public-interest organization
based in Birmingham, Alabama, dedicated to the
defense of limited government, free markets, and
strong families. It is also the litigation arm of its
parent organization, the Alabama Policy Institute
(“API”).
ACLL has an interest in this case for several
reasons. First, API’s co-founder, Tom Parker, is now
the Chief Justice of the Alabama Supreme Court. His
writings were cited several times in the cert petition
(see Pet. 4, 17, 18) because he has written extensively
on how Roe deviates from the presumptions in
criminal law, tort law, and other areas of the law that
unborn children are people. Second, ACLL believes
that life begins at the moment of fertilization and
that unborn children are people entitled to equal
protection of the law. Finally, the outcome of this
case undoubtedly will affect ongoing litigation
concerning Alabama’s Human Life Protection Act,
Ala. Code § 26-23-H-1 et seq., which bans abortion in
Alabama in most cases. See Robinson v. Marshall,
415 F. Supp. 3d 1053 (M.D. Ala. 2019). That
litigation is currently pending before the U.S. District
1 Pursuant to Rule
37.3, all parties have consented to the
filing of this brief. Pursuant to Rule 37.6, no party or party’s
counsel authored this brief in whole or in part, or contributed
money that was intended to fund its preparation or submission;
and no person other than the amicus curiae, its members, or its
counsel, contributed money that was intended to fund the
preparation or submission of this brief.
2
Court for the Middle District of Alabama. ACLL is
interested in seeing that law upheld.
SUMMARY OF THE ARGUMENT
In considering whether to revisit a precedent, this
Court has held that it should consider whether the
decision is an outlier among areas of the law that
address the same subject. Across the country, many
laws govern the lives and rights of unborn children.
These include criminal law (specifically fetal
homicide laws, penalty-enhancement statutes, and
stays of execution for pregnant women), tort law
(including fetal injury laws and wrongful-death
laws), property law, guardianship law, family law,
and healthcare law. Chief Justice Parker of the
Alabama Supreme Court has done an excellent job of
surveying the laws of all fifty states in these areas.
His research shows that with the lone exception of
wrongful-death actions, every other area of the law
protects the rights of unborn children regardless of
whether they have attained the point of viability or
not. Consequently, Roe’s viability standard is an
outlier.
Another factor the Court considers is the quality
of its reasoning. Justice Scalia once observed briefly
that drawing the line at viability made no more sense
than drawing the line at when a child is past
weaning. He was correct. The implication of the
Court’s reasoning is that one person has the right to
kill another if the other is dependent on him for
survival. Taken to its logical conclusion (and
combined with an important precedent from this
3
Court), this means that parents have a right to kill
their children as long as they are dependent on them.
Moreover, taken to its ultimate conclusion, it means
that one person has the right to kill another if he is
dependent on him in any way for survival. Since very
few of us are completely self-sufficient but instead
rely on the goods and services others provide, Roe’s
logic means that the people who provide those goods
and services to us have the right to kill us if they feel
that we are too much of a burden on them. Because
the logic of Roe’s viability rule requires this outcome,
it was not well-reasoned, and the Court should
discard it.
But the Court should not stop there. If the Court
discards the viability rule, it will have to ask which
standard should replace it. Because the Court cannot
answer that without constitutional exposition, the
question of whether Roe as a whole was correctly
decided is inextricably linked to the question
presented. Therefore, the Court may and should
consider that question.
Neither the text nor the history of the Fourteenth
Amendment supports a right to abortion. The Court’s
decision in Roe rests on the legal fiction of
substantive due process that was invented in Dred
Scott v. Sandford to protect a right that was not in
the Constitution. Substantive due process was
abused badly again in Lochner v. New York, allowing
judges to read their personal philosophies of liberty
into the Fourteenth Amendment. The Court did so
yet again in a line of decisions beginning in Griswold
v. Connecticut, resulting in this Court’s deadliest
4
application of substantive due process: Roe v. Wade.
Just as the Court eventually did away with Lochner,
so now it must do away with Roe. The doctrine of
stare decisis, both as an original matter and as this
Court has interpreted it, does not require the Court
to retain Roe just because it is precedent.
If the Fourteenth Amendment has any application
to abortion at all, it protects the unborn child’s right
to not to be murdered; consequently, state laws
authorizing abortion are unconstitutional. The
Framers of the Fourteenth Amendment believed that
God gave every person the natural right to life and
that unborn children were “people” entitled to the
Amendment’s protection. Consequently, laws that
protect everyone from murder except unborn children
violate the Equal Protection Clause.
If this is too far for the Court to go in the present
case, then it should at a minimum decline to foreclose
discussion of that issue in the future. But because the
Court cannot replace the viability standard without
wrestling with the question of whether Roe was
decided correctly, it must overrule Roe in this case.
5
ARGUMENT
I.
The Viability Rule Should Be Discarded
A.
The Viability Rule Does Not Comport
with Other Areas of the Law
Addressing the Rights of Unborn
Children
In considering whether to overrule a precedent,
this Court considers whether the decision is an
“outlier” among laws that address the same subject.
See Janus v. AFSCME, Council 31, 138 S.Ct. 2448,
2482 (2018). Thus, in considering whether to overrule
the viability standard, this Court should consider
whether other areas of the law treat unborn children
as people only when they become viable. Chief
Justice Tom Parker of the Alabama Supreme Court
has written extensively on this issue, and the
information presented here come from his special
writings. 2
1.
Criminal Law
The criminal laws of the states protect the rights
of unborn children in three ways: fetal homicide laws,
penalty-enhancement statutes, and suspending the
executions of pregnant women. This subsection will
summarize the laws of those states and discuss
For the sake of being concise, ACLL will not reproduce
every source Chief Justice Parker cited in these writings;
however, it will provide the citation to the place where Chief
Justice Parker listed every source upon which he relied.
2
6
whether the viability standard plays any part in
those laws.
First, 27 states criminalize fetal homicide
regardless of the gestational age of the child. Ex parte
Phillips, 287 So. 3d 1179, 1248 n.20 (Ala. 2018)
(Parker, J., concurring specially); Ex parte Ankrom,
152 So. 3d 397, 423 n.14 (Ala. 2013) (Parker, J.,
concurring specially). 3 Only three states continue to
use viability as a limitation on criminal liability.
Phillips, 287 So. 3d at 1248 n.20; Ankrom, 152 So. 3d
at 424 n.15. Three others use the quickening to
impose a limitation on liability, while three more use
other gestational-age limitations. Id. at 424 nn. 16 &
17. Thus, of the states that criminalize fetal
homicide, the vast majority have rejected the
viability standard as a limitation on fetal homicide,
instead imposing guilt if an unborn child is killed
regardless of his or her age.
Second, of 27 states that authorize the death
penalty, 4 four states provide that if a pregnant
woman is murdered, then her pregnancy can be an
aggravating factor that can justify the death penalty.
3 In Part I of this brief, all short-form citations to Phillips
and Ankrom refer to Chief Justice Parker’s special writings
unless otherwise noted. In case there is any confusion, Justice
Parker was an associate justice when he issued those writings
but was elected as Chief Justice in 2018. Chief Justice Parker,
Alabama
Judicial
System,
https://judicial.alabama.gov/CourtMemberBio/ViewBio?id=3
(last visited June 16, 2021).
4 States and Capital Punishment, NAT’L CONFERENCE OF
STATE LEGISLATURES, https://www.ncsl.org/research/civil-andcriminal-justice/death-penalty.aspx (last visited July 21, 2021).
7
Ankrom, 152 So. 3d at 424 n.18. Half of those states
do not require the child to reach viability or a
gestational age. 5 Nine other states permit the death
of a mother and her child to be considered an
aggravating factor where two people are killed in one
incident, regardless of the child’s viability. See
Ankrom, 152 So. 3d at 425 n.19. Finally, one state
provides that “a killing that would be capital murder
if the pregnant woman dies is capital murder if the
mother survives but her unborn child dies,”
regardless of the child’s viability. Id. at 425 & n.20
(citing Fla. Stat. Ann. § 782.09, citing in turn Fla.
Stat. Ann. § 775.021(5)(e)). Thus, of the 14 states that
allow an unborn child’s death to be taken into
account, 12 allow his or her death to be considered
regardless of viability.
Finally, of the 27 states authorizing capital
punishment, 22 expressly prohibit the execution of a
pregnant woman until the baby has been delivered.
Ankrom, 152 So. 3d at 425 n.21; Phillips, 287 So. 3d
at 1248 & n.21. None of the statutes staying the
execution of pregnant women contain a viability
requirement. See Ankrom, 152 So. 3d at 425 n.21 and
statutes cited therein.
Thus, the vast majority of the states that have
addressed these matters have not imposed a viability
standard. Put simply, if an unborn child is killed, the
child’s viability is irrelevant to the criminal’s guilt or
5 Ariz.
Rev. Stat. § 13-751(f)(7); Tenn. Code Ann. § 39-13204(i)(16); Ind. Code Ann. tit. 11, § 35-50-2-9(b)(16) (requiring
child to reach viability); 42 Pa. Const. Stat. Ann. § 9711(d)(17)
(requiring child to reach third trimester).
8
punishment. Neither is the child’s viability relevant
to whether a pregnant woman should be executed or
not. The law recognizes the child as a person
regardless of his or her viability.
2. Tort Law
The law of torts recognizes the personhood of the
unborn by allowing actions to recover damages from
injuries the child sustained within the womb and the
wrongful death of the child. As for prenatal injuries,
30 states permit an action to be brought for damages
for nonfatal prenatal injuries, regardless of whether
the child was viable when he suffered the injury or
not. Ankrom, 152 So. 3d at 425 n.22. 17 other states
and the District of Columbia allow such actions to be
brought if the child sustained the injury after he had
reached the point of viability. Id. at 426 n.23.
However, even those jurisdictions have not
determined whether such actions may be brought if
the child sustained the injuries before viability. Id.
As for wrongful death actions, 40 states allow
wrongful-death suits to be brought if the child
sustained post-viability injuries that caused his or
her death. Ankrom, 152 So. 3d at 427 n.24. Of those
states, two permit an action to be brought if
quickening had occurred, regardless of whether the
child was viable; and 12 allow an action to be brought
regardless of the child’s gestational age. Id. at 427-28
nn.25-26; Phillips, 287 So. 3d at 1249 n.23.
Thus, with the exception of wrongful death
actions, the majority of states do not use viability as
9
a limiting principle as to whether the child may
recover damages for injuries done to him or her in
utero.
3. Property, Guardianship,
and Healthcare Law
Family,
The law protects unborn children in at least four
other areas of the law without regard to whether they
have reached the point of viability or not: property,
guardianship, family, and healthcare law.
The common law recognized that unborn children
could have property rights. 6 See, e.g., 1 William
Blackstone, Commentaries *119. To this day, the
States have retained this principle. For instance, if a
father dies before his unborn child is born, then the
child will still inherit from the father as if he had
been born. Ankrom, 152 So. 3d at 422 & n.11. The
inheritance rights of these children are not
contingent upon them reaching the point of viability
before their father dies.
The common law also recognized the personhood
of the unborn through guardianship law. Blackstone
noted that “any father, under age or full age, may by
deed or will dispose of the custody of his child, either
born or unborn, to any person ….” 2 William
Blackstone, Commentaries *462 (emphasis added).
Today, “[a]ll states – by statute, rule, or precedent –
permit a court to appoint a guardian ad litem to
6 Unlike England’s fetal homicide law, the laws of property
and guardianship were not limited by the quickening principle.
Cf. 1 William Blackstone, Commentaries *130.
10
represent the interests of an unborn child in various
matters including estates and trusts.” Ankrom, 152
So. 3d at 428 & n.27. Again, the laws governing these
matters do not impose a viability rule as a limiting
principle on the child’s rights. See id.
In the arena of family law, eight states have
applied child-protection laws to unborn children in
various ways. Phillips, 287 So. 3d at 160 n.29. Five
other states have held that unborn children can be
“victims of abuse and neglect.” Id. at 160 & n.31. It
appears that these laws protect the unborn child’s
right “‘to a gestation undisturbed by wrongful injury
and the right to be born with a sound mind and body
free from parentally inflicted abuse or neglect.’” Id. at
160-61 (quoting In re Fathima Ashanti K.J., 558
N.Y.S. 2d 447, 449 (Fam. Ct. 1990)). The right to an
undisturbed gestation applies to the total gestation
period, not just gestation after viability.
Finally, regarding healthcare law, even though
every state allows a patient to execute an advance
directive, “most states prohibit the withdrawal or
withholding of life-sustaining treatment for a
pregnant woman, regardless of her advance
directive.” Ankrom, 152 So. 3d at 429 & n.28. Those
states also “generally prohibit an agent acting under
a health-care power of attorney from authorizing an
abortion.” Id. at 429 &. n.29. While these statutes
sometimes include a limiting principle (such as
requiring the doctors to determine whether the baby
would probably live if the mother were kept on life
support), they do not typically include a viability rule.
See id. at 429 nn. 28-29 and statutes cited therein.
11
4. Conclusion
With the lone exception of wrongful death actions,
the majority of state laws protecting unborn children
do not impose a viability requirement on the child’s
rights. Roe’s viability standard is therefore an
“outlier” among laws that address the same subject.
Janus, 138 S.Ct. at 2482. Because the vast majority
of the laws governing the unborn do not require an
unborn child to be viable in order to merit legal
protection, neither should this Court.
B.
Taken To Its Logical Conclusion, the
Viability Rule Could Permit Families
to Kill Children Who Have Already
Been Born
Another factor the Court considers in revisiting a
precedent is “the quality of its reasoning[.]” Janus,
138 S.Ct. at 2479. As to Roe’s viability holding, the
quality of its reasoning should be examined by taking
the holding to its logical conclusion.
Justice Scalia once pointed out a fatal flaw in the
reasoning of drawing the line at viability, arguing it
“makes no more sense than according infants legal
protection only after the point at which they can feed
themselves.” Planned Parenthood v. Casey, 505 U.S.
833, 989 n.5 (1992) (Scalia, J., dissenting). What was
once raised in that footnote deserves exposition here.
12
As one commentator noted,
“For the Court to make its argument valid, it
would have to add to its factual premise [the
fact of fetal non-viability] the normative
premise: whenever a human being cannot live
on its own because it uniquely depends on
another human being for its physical
existence, it is permissible for the second
human being to kill the first to rid the second
of the burden.”
Francis J. Beckwith, Defending Life: A Moral and
Legal Case Against Abortion Choice 37 (Cambridge
Univ. Press 2007).
If this Court allows one person to kill another as
long as the latter is dependent on the former for
survival, then there is no logical reason why, as
Justice Scalia noted, a mother should not be able to
kill a weaning child as well. But this logic, horrifying
as it is, does not necessarily stop when the child is no
longer nursing. Children will always, in one form or
another, be dependent on their parents until they are
able to support themselves financially. Consequently,
under the logic of the viability rule, parents ought to
be able to kill their children at any point from the
moment of conception until they day where they
move out of the house. By the same token, a family
would not only have the right to kill a dependent
child, but also any family member who would not be
able to live without help from others (such as a
handicapped sibling or an aging parent).
13
One might counter that this conclusion does not
follow because the right to abortion is based on the
right to privacy, which protects a woman’s right to do
what she wishes with her own body. See Roe, 410
U.S. at 152-54. However, this Court has recognized
not only a right to personal privacy but also a right to
family privacy. See, e.g., Smith v. Org. of Foster
Families for Equal. & Reform, 431 U.S. 816, 842
(1977). If the right to abort a child that cannot
survive on his own can be justified by the right of
personal privacy, then the same logic would require
the Court to hold that the right of family privacy
justifies a family in killing one of its own members
who cannot survive on his own.
That proposition is of course horrific, barbaric,
and immoral. But that is exactly the point. If it
makes no sense to hold that a person who has been
born may be killed because he cannot survive on his
own, then it likewise makes no sense to hold that a
person who is unborn may be killed because he
cannot survive on his own. This dilemma exposes the
viability standard for what it is: an arbitrary line
that should be discarded.
On one last note, if a person’s right to life is
dependent on his ability to survive without the help
of others, then most people would not have a right to
life. Most of us wake up each day in a dwelling that
was built by someone else, eat food that was grown
by someone else, drink water that was sent to our
house by someone else, go to work in a car that was
built by someone else, and provide goods or services
to someone else in exchange for payment so that we
14
can take care of ourselves. Roe’s viability holding,
taken to its ultimate conclusion, would mean that
only those among us who can perform all these tasks
without the help of others have a right to life. Since
most of us therefore are dependent on others for our
own survival, we should not kill the unborn for
likewise being dependent on others for their survival.
II.
This Court Should Take the Opportunity to
Overrule Roe and Its Progeny
A.
If the Court Revisits the Viability
Standard, Then It Cannot Escape the
Question of Whether the Constitution
Protects a Right to Abortion at All
If the Court agrees to revisit the viability
standard, then it will have to decide how much of Roe
and Casey’s framework remains. In Roe and Casey,
the Court held that the State may not ban abortions,
or at least place an undue burden in the path of a
woman seeking an abortion, before viability. Casey,
505 U.S. at 877; Roe, 410 U.S. at 164. Thus, viability
is not only an important part of the equation; it is the
most important part of the equation. Under this
Court’s precedents, viability is the point that
separates the State’s interests in protecting the
baby’s life from the mother’s interest in choosing
whether to have the baby or not.
Consequently, if this Court revisits the viability
standard, then it will necessarily and inescapably
trigger the larger question of whether the State’s
interest in protecting life outweighs the mother’s
15
interest in choice. The Court therefore will have to
choose between two options as it makes its decision:
creating another arbitrary rule, or expounding and
applying the Constitution as it is written. The former
would do violence to the Constitution by creating law,
which is reserved for the legislative branch alone,
instead of applying the law, which is for the courts.
The latter may require the Court to go beyond the
question presented. However undesirable it is to
decide more, “sometimes it is necessary to decide
more. There is a difference between judicial restraint
and judicial abdication.” Citizens United v. FEC, 558
U.S. 310, 375 (2010) (Roberts, C.J., concurring).
The question of whether a State may prohibit
abortions and whether the Constitution protects the
mother’s right to choose is “inextricably linked to,
and is thus ‘fairly included’ within, the questions
presented.” City of Sherrill v. Oneida Indian Nation
of N.Y., 544 U.S. 197, 214 n.8 (2005). It is impossible
for the Court to answer the question presented
without considering this issue as well, making it
therefore a matter “antecedent to ... and ultimately
dispositive of” the dispute before the Court. Arcadia
v. Ohio Power Co., 498 U.S. 73, 77 (1990).
Consequently, this Court can and should consider the
threshold issue of whether the Constitution protect a
right to abortion or not.
16
B.
Roe
and
Its
Unconstitutional.
1.
Progeny
Are
Roe Does Not Comport with Either
the Text or Original Meaning of the
Constitution.
In Casey, this Court held that the Due Process
Clause of the Fourteenth Amendment protects a
woman’s right to abort her baby. Casey, 505 U.S. at
846. The Due Process Clause of the Fourteenth
Amendment states, “No State shall ... deprive any
person of life, liberty, or property without due process
of law.” U.S. Const., amend. XIV, § 1. Grammatically,
this Clause does not prohibit the government from
abridging substantive rights. Instead, it guarantees
the people of the states the right to due process of law
before the states deprive them of life, liberty, or
property. It is procedural, not substantive; therefore
it cannot be construed to recognize rights that are not
in the Constitution. “Substantive due process,” is, in
fact, an oxymoron. See Timbs v. Indiana, 139 S.Ct.
682, 692 (2019) (Thomas, J., concurring in judgment)
(explaining that “due process” meant “by the law of
the land”); id. at 691 (Gorsuch, J., concurring).
The original meaning of the Due Process Clause
likewise discounts any possibility of protecting the
right to abortion. As Justice Thomas explains, the
liberty protected by the Due Process Clause likely
means freedom from physical restraint. Obergefell v.
Hodges, 576 U.S. 644, 723 (2015). Still, the grammar
of the Due Process Clause is as inescapable now as it
was in 1868: it guarantees that an individual may
17
not be physically restrained without due process of
law. Consequently, “substantive due process” is
indefensible from an originalist perspective. Id. at
722.
If the text of the Constitution were not clear
enough, 36 out of 37 states had laws either
restricting our outlawing abortion in 1868. 7 Roe, 410
U.S. at 175 & n.1 (Rehnquist, J., dissenting). There
was therefore “no question concerning the validity of
[these] statutes when the Fourteenth Amendment
was adopted.” Id. at 177. Therefore, “nothing in the
language or history of the Constitution supports the
Court’s judgment” that the Constitution protects the
right to abortion. Doe v. Bolton, 410 U.S. 179, 221
(1973) (White, J., dissenting).
2.
Roe Does Not Comport with This Court’s
Traditional Substantive Due Process
Jurisprudence Under Washington v.
Glucksberg
For over a hundred years, however, this Court has
held that the Due Process Clause protects certain
rights that are not enumerated in the Constitution
itself. To ensure that this Court does not cross the
line from protecting fundamental rights into
7 Nebraska became the 37th State admitted to the Union in
1867.
Nebraska
Statehood,
History
Nebraska,
https://history.nebraska.gov/tags/nebraska-statehood
(last
visited May 24, 2021). Nebraska was the only state in 1868
without a law addressing abortion, probably because it had just
become a state and did not have many laws at all. See Roe, 410
U.S. at 175 n.1 (Rehnquist, J., dissenting).
18
legislating new rights, the Court recognizes only
those rights that are “deeply rooted in this Nation’s
history and tradition.” Washington v. Glucksberg, 521
U.S. 702, 720-21 (1997) (cleaned up). This limiting
principle is important because it “tends to reign in
the subjective elements that are necessarily present
in due process judicial review.” Id. at 722.
At the time of the Founding, the common law
made abortion after “quickening” a criminal offense.
1 William Blackstone, Commentaries *129-30. The
fact that the common law protected the unborn only
after quickening should not be confused with the
creation of a right to abort a child. The common law
protected the unborn based on the best evidence
available at the time of when life began, but the
common law never affirmatively protected the right
to terminate a pregnancy before quickening.
In the mid-nineteenth century, scientific and
medical advancements led physicians to believe that
life started at conception. Esther Slater McDonald,
Note: Patenting Human Life and the Rebirth of the
Thirteenth Amendment, 78 Notre Dame L. Rev. 1359,
1376-77 (2003). The American Medical Association
launched an aggressive campaign to protect life from
the moment of conception, leading nearly every state
or territory to adopt such a law. Id. at 1379. It was
not until just before Roe that a trend toward
liberalization occurred. Roe, 410 U.S. at 139-40.
Thus, between the common law history and the
further development of medicine in the nineteenth
century, the trend in our history was always to
19
protect life from the moment we knew it existed.
Consequently, “it can scarcely be said that any deeply
rooted tradition of relatively unrestricted abortion in
our history supported the classification of the right to
abortion as ‘fundamental’ under the Due Process
Clause of the Fourteenth Amendment.” Casey, 505
U.S. at 952-53 (Rehnquist, C.J., dissenting).
3.
Dred Scott, Lochner, and
Substantive Due Process
Shame”
Roe: the
“Hall of
As Justice Thomas has explained, “substantive
due process” is a “dangerous fiction” that “distorts the
constitutional text” and invites judges to “roam at
large in the constitutional field guided only by their
personal views....” Obergefell v. Hodges, 135 S.Ct.
2584, 2631 (2015) (Thomas, J., dissenting)
(quotations, citations, and alterations omitted). “And
because the Court's substantive due process
precedents allow the Court to fashion fundamental
rights without any textual constraints, it is equally
unsurprising that among these precedents are some
of the Court's most notoriously incorrect decisions.”
Timbs, 139 S.Ct. at 692 (Thomas, J., concurring in
judgment) (citing Dred Scott and Roe).
As four of the sitting justices of this Court have
recognized, the doctrine of substantive due process
was born in the notorious Dred Scott case. Relying on
the Fifth Amendment’s Due Process Clause, this
Court held,
20
[A]n act of Congress which deprives a citizen
of the United States of his liberty or property,
merely because he came himself or brought his
property into a particular Territory of the
United States, and who had committed no
offence against the laws, could hardly be
dignified with the name of due process of law.
Dred Scott v. Sandford, 60 U.S. 393, 450 (1857). In
his dissent, Justice Curtis demonstrated that this
understanding of due process was unheard of from
the time of the Magna Charta until then, and would
by its terms prohibit Congress from eliminating the
slave trade and the States from banning slavery. Id.
at 624-27 (Curtis, J., dissenting).
For the first time, the Court interpreted the Due
Process Clause to confer a substantive right to keep
human beings as slaves, not a procedural right
against arbitrary government power. Thus, Justice
Gorsuch concludes that, in Dred Scott,
the Court went out of its way to bend the
Constitution’s terms in an effort to try to quell
unrest in the country over the question of
slavery. The Court invented the legal doctrine
of substantive due process, and then proceeded
to use it to hold that Congress had no power to
regulate slavery in the territories.
Neil Gorsuch, A Republic, If You Can Keep It 125
(2019); accord Obergefell v. Hodges, 576 U.S. 644,
695 (2015) (Roberts, C.J., joined by Scalia, Thomas,
21
and Alito, JJ., dissenting) (acknowledging Dred Scott
as the first case applying substantive due process).
The Court’s new invention of substantive due
process did not accomplish the result it intended. It
set America on a course for Civil War, which cost
over three million lives. 8 The similar invocation of
substantive due process 116 years later resulted in
over sixty million deaths, 9 making Roe twenty times
deadlier than Dred Scott.
The second advent of substantive due process
came in Lochner v. New York, 198 U.S. 45 (1905). In
that case, this Court concluded that the Due Process
Clause prohibited state interference with freedom of
contract. 198 U.S. at 64. Justice Holmes famously
dissented, arguing that the Court’s decision was
based on economic theory instead of the Constitution.
Id. at 75 (Holmes, J., dissenting). Justice Holmes’s
position eventually prevailed. See West Coast Hotel
Co. v. Parrish, 300 U.S. 379 (1937) (signaling the end
of the Lochner era). 10 After the Thirteenth
America’s Wars, U.S. Department of Veterans Affairs,
https://www.va.gov/opa/publications/factsheets/fs_americas_war
s.pdf (last visited July 21, 2021).
9 Abortion Statistics, National Right to Life Committee,
https://nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf
(last visited July 21, 2021).
10 ACLL believes in free markets but does not believe such
rights can be deduced logically from the text or history of the
Due Process Clause. Moreover, while ACLL believes there is a
right to work, it also believes that the Tenth Amendment
permits the States to use their police powers in a reasonable
way to protect the people’s health, safety, welfare, and morals. A
balance therefore must be struck, which is different than
Lochner’s limitless protection of every kind of economic activity.
8
22
Amendment invalidated Dred Scott and the Court
repudiated Lochner, one would think the Court would
have ceased using (or rather abusing) substantive
due process to create new rights that are neither in
the Constitution nor deeply rooted in this nation’s
history and traditions.
But think again. For the third time, the Court
embarked on a new era of inventing substantive-dueprocess rights. The third round had nothing to do
with slavery or economics, but was based
(supposedly) on personal autonomy. As Justice
Kennedy put it in Casey, “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.” Casey, 505 U.S. at 833. This line of cases
began in Griswold v. Connecticut, 381 U.S. 479
(1965), which recognized a right of privacy. Griswold,
in turn, begat Roe.
Judge Henry Friendly of the Second Circuit,
echoing Justice Holmes’s dissent in Lochner,
recognized that abortion had nothing to do with the
Constitution. In a draft opinion for an abortion case
that was prepared shortly before this Court decided
Roe, Judge Friendly addressed the heart of the proabortion argument, which was “that a person has a
constitutionally protected right to do as he pleases
with his—in this instance, her—own body so long as
no harm is done to others.” A. Raymond Randolph,
Before Roe v. Wade: Judge Friendly’s Draft Abortion
Opinion, 29 Harv. J. L. & Pub. Pol. 1035 (2006).
Judge Friendly responded,
23
Plaintiffs’ position is quite reminiscent of
the famous statement of J[ohn] S[tuart] Mill....
Years ago, when courts with considerable
freedom struck down statutes that they
strongly disapproved, Mr. Justice Holmes
declared in a celebrated dissent that the
Fourteenth Amendment did not enact Herbert
Spencer’s Social Statistics. No more did it
enact J.S. Mill’s views on the proper limits of
law-making.
Id.
As Justice Curtis recognized in Dred Scott, as
Justice Holmes recognized in Lochner, and as Judge
Friendly recognized in his abortion case, the Due
Process Clause does not authorize the Justices of this
Court to interpret the word “liberty” according to
their personal philosophies instead of what the
Constitution really means.
But that is exactly what the Court did in Roe. As
Justice White lamented, “The Court simply fashions
and announces a new constitutional right for
pregnant mothers and, with scarcely any reason or
authority for its action, invests that right with
sufficient substance to override most existing state
abortion statutes.” Doe, 410 U.S. at 221-22 (White, J.,
dissenting). The price of judicial activism in Lochner
was (arguably) allowing employers to push their
employees too far. The price of judicial activism in
Dred Scott was a Civil War that cost over 3 million
lives. The cost of judicial activism in Roe, however,
was over 60 million abortions, which is ten times the
24
amount of Jews murdered in the Holocaust 11 and
twenty times the casualties of the Civil War. Thus,
among judicial activism’s worst decisions, Roe earns
the place of foremost prominence in the Substantive
Due Process Hall of Shame.
4.
Conclusion: The Due Process Clause
Does Not Protect the Right to an
Abortion
The right to abortion cannot “be logically deduced
from the text of the Constitution.” Ohio v. Akron Ctr.
for Reproductive Health, 497 U.S. 502, 520 (1990)
(Scalia, J., concurring). Even if substantive due
process comported with the Fourteenth Amendment,
it would not support the right to an abortion because
it is not “found in the longstanding traditions of our
society[.]” Akron, 497 U.S. at 520 (Scalia, J.,
concurring). Roe was a bare power grab by judges
who read their own philosophies of liberty into the
Constitution, costing tens of millions of innocent
lives. It was judicial activism at its worst and must
be overruled.
Documenting Numbers of Victims of the Holocaust and
Nazi Persecution, United States Holocaust Memorial Museum,
https://encyclopedia.ushmm.org/content/en/article/documentingnumbers-of-victims-of-the-holocaust-and-nazi-persecution (last
visited May 24, 2021).
11
25
B.
The Doctrine of Stare Decisis Does Not
Bar This Court from Overruling Roe and
Casey.
As an original matter, a precedent should be
overruled if it clearly conflicts with the Constitution.
Justice Thomas’s masterful concurrence in Gamble v.
United States, 139 S.Ct. 1960, 1980-89 (2019),
illustrates in great detail the meaning of precedent
in light of the common law and the history and
structure of our Constitution. ACLL agrees with
Justice Thomas: “When faced with a demonstrably
erroneous precedent,” such as Roe or Casey, the
Court “should not follow it.” Id. at 1984 (Thomas, J.,
concurring). When forced to choose between original
meaning and stare decisis, “a justice’s duty is to the
Constitution[, and] it is thus more legitimate for her
to enforce her best understanding of the Constitution
rather than a precedent she thinks clearly in conflict
with it.” Amy Coney Barrett, Precedent and
Jurisprudential Disagreement, 91 Tex L. Rev. 1711,
1728 (2013). After all, “stare decisis isn’t supposed to
be the art of methodically ignoring what everyone
knows to be true.” Ramos v. Louisiana, 140 S.Ct.
1390, 1405 (2020).
If the Court does not believe that grave
constitutional error alone is enough to warrant
overturning a demonstrably erroneous precedent,
then it should look to the factors it articulated
recently in Janus v. AFSCME, Council 31, 138 S.Ct.
2448 (2018). Those factors are: (1) the quality of the
precedent’s reasoning, (2) the workability of the
precedent in question, (3) whether legal or factual
26
developments
have
eroded
the
decision’s
underpinnings and left it as an outlier, and (4)
reliance interests. Id. at 2479-84.
As for the first factor, Casey has been attacked as
the worst constitutional decision of all time because
the Court knew Roe was wrongly decided but applied
it anyway to save face, with the result that millions
of people died. Michael Stokes Paulsen, The Worst
Constitutional Decision of All Time, 78 Notre Dame
L. Rev. 995, 998-1004 (2003). Roe’s reasoning
likewise does not comport with the original meaning
of the Due Process Clause or the Court’s traditional
substantive due process analysis.
As for the second factor, the present case
addresses whether viability is a workable line to
draw or not. If the Court finds that it is not, then the
second factor weights in favor of overruling Roe and
Casey.
As for the third factor, we know far more about
prenatal life now than we did when Roe and Casey
were decided. Hamilton v. Scott, 97 So. 3d 728, 746
(Ala. 2012) (Hamilton I) (Parker, J., concurring
specially). Furthermore, criminal law, tort law,
guardianship law, health care law, property law, and
family law often treat the unborn as persons, leaving
abortion as an outlier. Ex parte Phillips, 284 So. 3d
101, 165-69 (Ala. 2018) (Parker, J., concurring
specially).
The fourth factor is the only potential factor that
weighs the other way. However, reliance interests
27
were not enough to save the precedent in question
from being overruled in Janus when the other three
factors weighed the other way. Janus, 131 S.Ct. at
2485-86. Neither should it in this case.
Since Dred Scott has been mentioned, it is also
worth noting that reliance was the reason why
slaveholding states refused to abolish slavery. That
issue was settled on the battlefields of the Civil War,
and the outcome was that reliance interests did not
justify holding human beings as property. Neither
does reliance here justify murdering innocent people.
Finally, the Court has sometimes stated that a
“special justification” is required to overrule
precedent. The Court found in Janus that if the first
three factors are met, then the special justification is
met also. Janus, 138 S.Ct. at 2486. Beyond that,
sixty million people have been murdered since 1973
because of this Court’s decision. If that is not “special
justification,” then with respect, nothing is. It is time
to end the bloodshed and overrule Roe and its
progeny once and for all.
C.
The Court Should Not Only Overrule
Roe but Also Hold That the Constitution
Protects the Child’s Right to Life
Roe itself conceded that if an unborn child is a
person, the case for abortion collapses, because the
child’s right to life would be specifically guaranteed
by the Amendment. Roe, 410 U.S. at 156-57. The
Court was correct in that regard. The Fourteenth
Amendment states, in relevant part: “nor shall any
28
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.” U.S. Const., amend. XIV, § 1 (emphasis
added).
Since other amicus briefs are developing this
point in more detail, ACLL will point out briefly that
the question of whether unborn children are
“persons” within the meaning of the Fourteenth
Amendment has gained considerable attention. The
Alabama Supreme Court, for instance, has
acknowledged that it could be true. See Phillips, 287
So. 3d at 1212 (opinion of the Court). Two Chief
Justices of the Alabama Supreme Court have argued
the same in special writings on multiple occasions.
Id. at 1244 (Parker, J., concurring specially);
Hamilton v. Scott, 278 So. 3d 1180, 1190 (Ala. 2018)
(Hamilton II) (Parker, J., concurring specially);
Stinnett v. Kennedy, 232 So. 3d 202, 223 (Ala. 2016)
(Parker, J., concurring specially); Ex parte Hicks, 153
So. 3d 53, 71-72 (Ala. 2014) (Moore, C.J., concurring).
This issue has also been debated in conservative
academic circles. See generally Joshua Craddock,
Protecting Prenatal Persons: Does the Fourteenth
Amendment Prohibit Abortion?, 40 Harv. J. L. & Pub.
Pol’y 539, 554-55 (2017); Michael Stokes Paulsen, The
Plausibility of Personhood, 74 Ohio St. L.J. 13 (2013);
Charles I. Lugosi, Conforming to the Rule of Law:
When Person and Human Being Finally Mean the
Same
Thing
in
Fourteenth
Amendment
Jurisprudence, 4 Geo. J. L. & Pub. Pol’y 360 (2007).
29
Blackstone said, “Natural persons are such as the
God of nature formed us.” 1 Blackstone,
Commentaries *123. “The principle of Blackstone’s
rule was that ‘where life can be shown to exist, legal
personhood exists.’” Craddock, supra, at 554-55. 12
Given that the dominant view at the Fourteenth
Amendment’s passage was that life begins at
conception, there is a strong case that the Fourteenth
Amendment applies to unborn children. 13
Moreover, the Framers of the Fourteenth
Amendment “attempted to create a legal bridge
between their understanding of the Declaration of
Independence, with its grand declarations of equality
and rights endowed by a Creator God, and
constitutional jurisprudence.” David Smolin, Equal
Protection, in The Heritage Guide to the Constitution
12 Due to lack of
scientific evidence, the common law held
that one could be convicted of homicide for killing a preborn
child only after “quickening,” because only then could the court
ascertain that the child was alive, and it is legally impossible to
kill a person who is already dead and not alive. Id. But when
the Fourteenth Amendment was ratified, many courts had
repudiated the quickening standard because of the discovery
that life begins at fertilization. Craddock, supra, at 554-55.
Roe rejected this argument by reasoning that the word
“person” as used elsewhere in the Constitution did not appear to
apply to the unborn. Roe, 410 U.S. at 157-58. However, the
better practice would have been to examine what the word
“person” meant at the time of the Fourteenth Amendment’s
ratification. See District of Columbia v. Heller, 554 U.S. 570,
574-605 (2008) (engaging in a remarkably disciplined exposition
of what the words in one particular amendment meant);
Gibbons v. Ogden, 22 U.S. 1, 188-89 (1824) (holding that the
Constitution’s provisions must be interpreted by their words
and by how their framers and readers understood them).
13
30
400 (2005). Thaddeus Stevens, the most powerful
man in Congress and the author of the first version of
the Fourteenth Amendment, said the following when
he introduced it: “Our fathers had been compelled to
postpone the principles of their great Declaration,
and wait for their full establishment till a more
proprietous time. That time ought to be present now.”
2 The Reconstruction Amendments 158 (Kurt T. Lash,
ed., 2021). John Bingham, who introduced the
version of the Fourteenth Amendment that
ultimately passed, said, “I am for the proposed
amendment from a sense of right—that absolute,
eternal verity which underlies your Constitution. So
it was proclaimed in your imperishable Declaration
by the words, all men are created equal; that they are
endowed by their Creator with the rights of life and
liberty….” Id. at 59.
Thus, if all people are endowed with their Creator
with the unalienable gift of life, and if unborn
children are people, then the States may not deny
equal protection of the laws to them. 14
14 Justice Ginsburg argued that the Equal Protection Clause
cuts the other way, guaranteeing a woman’s right to abort her
pregnancy so that she could have the same liberties as men. See
Gonzalez v. Carhart, 550 U.S. 124, 171-72 (2007) (Ginsburg, J.,
dissenting). But with respect, Justice Ginsburg’s arguments
suffered from two flaws. First, as argued above, it discounts the
fact that Americans viewed unborn children as people when
they ratified the Fourteenth Amendment. As Roe itself
conceded, establishing the suggestion of personhood would make
the case for abortion collapse. Roe, 410 U.S. at 156-57. Second,
her argument presumes that to be equal with men, women
would have to give up something that makes them uniquely
feminine: the ability to get pregnant. Consequently, Justice
Ginsburg’s argument does not actually make women equal with
31
Therefore, this Court should not only overrule Roe
and its progeny but also hold that the Fourteenth
Amendment protects unborn children from abortion.
If this is too far for the Court to go in the present
case, then it should at the very least refrain from
foreclosing that question from being presented in the
future.
CONCLUSION
As the writings of Chief Justice Parker of the
Alabama Supreme Court demonstrate in detail, the
viability standard remains an outlier among the vast
majority of laws that address the same subject, which
generally protect the lives and rights of the unborn
regardless of whether they are viable or not. Taking
the viability precedent to its logical conclusion
creates the absolutely horrifying result that one
person has the right to kill another who is dependent
on him or her. In such a case, the right to life would
never be secured for minor children, handicapped
relatives, aging parents, or possibly for anyone who is
in some way dependent on another for survival. Since
the viability standard does not comport with the
other laws governing unborn children or even with
the law of logic because of the horrifying result that it
creates, it should be discarded.
men, but rather seeks to make them men by depriving them of a
unique female characteristic, which is not pro-woman at all. See
Erica Bachiochi, Embodied Equality: Debunking Equal
Protection Arguments for Abortion Rights, 34 Harv. J. L. & Pub.
Pol. 889 (2011).
32
But the Court should not stop there. Because this
Court’s duty is to uphold the Constitution and apply
it as written instead of creating law, which is
reserved for the legislature alone, it should look to
the Constitution itself to determine what should
replace the viability standard. Because neither the
text nor history of the Constitution protects the right
to abortion, the Court should discard it altogether. 15
It should further recognize that the Fourteenth
Amendment protects the lives of the unborn. But if
the Court is unwilling to go that far in the present
case, then it should at the very least not foreclose
that issue from consideration in the future. But
regardless of whether it recognizes the personhood of
the unborn now, Amicus Curiae respectfully urges
the Court to do what the Constitution requires in the
present case: overrule Roe once and for all.
Respectfully submitted,
MATTHEW J. CLARK*
*Counsel of Record
ALABAMA CENTER FOR LAW AND LIBERTY
2213 Morris Ave., Fl. 1
Birmingham, AL 35203
(256) 510-1828
matt@alabamalawandliberty.org
Counsel for Amicus Curiae
Amicus Curiae simply asks the same thing that Chief
Justice Roberts once urged the Court to do as Deputy Solicitor
General when the question presented was also narrow. Brief for
Respondent, Rust v. Sullivan, 500 U.S. 173 (1991), available at
https://www.justice.gov/sites/default/files/osg/briefs/1990/01/01/s
g900805.txt (last visited July 21, 2021).
15
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.