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, 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 Amici Curiae

National Right to Life Committee and

Louisiana Right to Life Federation

Supporting Petitioners

____________

July 2021

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

812/235-3685 facsimile

jboppjr@aol.com

Counsel for Amici Curiae

Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . iii

Interest of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Courts and legislatures need a roadmap to

avoid “a jurisprudence of doubt.” . . . . . . . . . . 3

A. Abortion law is built on anomalies.. . . . . . 5

B. A jurisprudence of doubt persists. . . . . . . 10

II.

This case should provide a new, clear,

and sufficient roadmap.. . . . . . . . . . . . . . . . . 12

A. The new roadmap should be clear. . . . . . 12

B. The new roadmap should be sufficient.. . 13

C. The new roadmap should guide the way

back from Roe’s tangent from normal

rules by fully embracing relevant state

interests and normal rules. . . . . . . . . . . . 15

1. Pre-viability application does not preclude elective-abortion prohibitions. . 16

2. All relevant state interests should be

considered in pre-viability applications.

(i)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

a. States may assert an interest in

protecting maternal health for all

periods of pregnancy.. . . . . . . . . . . 20

b. States may assert an interest in

protecting preborn, individual human life, including against pain,

for all periods of pregnancy. . . . . . 22

c. States may assert an interest in

protecting against harm to the

medical profession and civil society

for all periods of pregnancy. . . . . . 22

d. States may assert all other relevant interests pre-viability and

establish them with evidence.. . . . 24

3. Courts must consider if state interests

satisfy relevant scrutiny in context. . 25

4. Normal rules must apply.. . . . . . . . . . 25

III.

This case should be remanded to apply

this Court’s new roadmap. . . . . . . . . . . . . . . 26

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(ii)

Table of Authorities

Cases

Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1983). . . . . . . . . . . . . . . . . . 7, 14, 17

Box v. Planned Parenthood of Indiana and Kentucky, 139 S. Ct. 1780 (2019) . . . . . . . . . . . . . . . 24

Box v. Planned Parenthood of Indiana and Kentucky, 140 S. Ct. 2103 (2020) . . . . . . . . . . . . . . . 10

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) . 14

Gary-Northwest Ind. Women’s Services v. Orr, 451

U.S. 934 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gary-Northwest Indiana Women’s Services v.

Bowen, 496 F. Supp. 894 (N.D. Ind. 1980). . . . . . 6

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

. . . . . . . . . . . . . . . . . . . . . . . . . 8, 18-19, 22-23, 26

June Medical Services v. Russo, 140 S. Ct. 2103

(2020). . . . . . . . . . . . . . . . . . . . . . 2-5, 8-11, 13, 21

Lochner v. New York, 198 U.S. 45 (1905) . . . . . . . . 15

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . 12

Marks v. United States, 430 U.S. 188 (1977)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 10-12

Mazurek v. Armstrong, 520 U.S. 968 (1997) . 8, 14, 21

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . 13

Planned Parenthood of Indiana and Kentucky v.

Box, 949 F.3d 997 (7th Cir. 2019) . . . . . . . . . . . . 4

(iii)

Planned Parenthood of Indiana and Kentucky v.

Box, 991 F.3d 740 (7th Cir. 2021) . . . . . . . . 10-12

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)

. . . . . . . . . . . . . . . . . . 1, 3-5, 8-9, 13-19, 22, 24-25

Roe v. Wade, 410 U.S. 113 (1973) 2, 5-9, 13-22, 25-26

Thornburgh v. ACOG, 476 U.S. 747 (1986) . . 5, 7, 22

United States v. Dorcely, 454 F.3d 366 (D.C. Cir.

2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Salerno, 481 U.S. 739 (1987) . . . . 26

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) . . . 14

Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292 (2016) . . . . . . . . . . . . . . . . . . 2, 4, 6, 9-13, 21

Constitutions, Statutes, Regulations & Rules

Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. const. art. III . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Other Authorities

BBC, Europe’s abortion rules, BBC News (Feb. 12,

2007), http://news.bbc.co.uk/2/hi/europe/6235557.stm . . . . . . . . . . . . . . . . . . . . . . . . 18

James Bopp, Jr. & Richard E. Coleson, The Right

to Abortion: Absolute, Anomalous, and Ripe for

Reversal, 3 B.Y.U. J. Pub. L. 181 (1989)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 15, 17, 26

Brief Amicus Curiae of Americans United for Life

in Support of Petitioners, Box v. Planned Parenthood of Indiana and Kentucky (No. 20(iv)

1375) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Brief of Amici Curiae National Right to Life Committee and Louisiana Right to Life Federation,

June Medical Services v. Russo, 140 S. Ct.

2103 (2020) (No. 18-1323). . . . . . . . . . . . . . . . . . . 8

Paul Benjamin Linton, The Legal Status of the

Unborn Child under State Law, 6 U. St.

Thomas J. Law & Pub. Pol’y 141 (2012) . . . . . . . 6

Right to Life of UK, What are the abortion time

limits in EU countries?,

https://righttolife.org.uk/what-are-theabortion-time-limits-in-eu-countries . . . . . . . . . 18

Antonin Scalia, The Rule of Law Is a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989) . . . . . . . . 13

Cass R. Sunstein, One Case at a Time: Judicial

Minimalism on the Supreme Court (1999). . . . . 13

Cass R. Sunstein, Problems with Minimalism, 58

Stan. L. Rev. 1899 (2006) . . . . . . . . . . . . . . . 13-14

(v)

Interest of Amici Curiae1

Founded in 1968, the National Right to Life Committee, Inc. is the nation’s oldest, largest, pro-life organization. See nrlc.org. NRLC is a federation of 50 state

affiliates and over 3,000 local chapters. By education

and legislation, NRLC works to restore legal protection

to the most defenseless members of our society who are

threatened by abortion, infanticide, assisted suicide,

and euthanasia. NRLC and related entities have a long

history of working to protect maternal health. See, e.g.,

http://www. nrlc.org/uploads/international/MCCLMaternalMort2012.pdf.2

Louisiana Right to Life Federation, Inc., established in 1970, is NRLC’s Louisiana affiliate. See

https://prolifelouisiana.org/. LRTL’s pro-life advocacy

includes maternal-health protection.

Summary of the Argument

Eliminating “a jurisprudence of doubt” was the goal

in Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833, 843 (1992). So this Court pro1

Rule 37 statement: All parties consented to filing this

brief; no counsel for any party authored it in whole or in

part; no party counsel or party made a monetary contribution intended to fund its preparation or submission; and no

person other than Amici or their counsel funded it.

2

Counsel for Amici have authored numerous briefs on

abortion issues in this and other courts. Mr. Bopp is

NRLC’s General Counsel. Counsel developed some of the

themes herein further in James Bopp, Jr. & Richard E.

Coleson, The Right to Abortion: Absolute, Anomalous, and

Ripe for Reversal, 3 B.Y.U. J. Pub. L. 181 (1989), available

at https://digitalcommons.law.byu.edu/jpl/vol3/iss2/2. All

links herein were checked and functional at time of filing.

2

vided a roadmap for abortion jurisprudence, replacing

the strict-scrutiny, trimester roadmap of Roe v. Wade,

410 U.S. 113 (1973), with a more-deferential, undueburden (i.e., substantial-obstacle) roadmap.

The need for this Court to provide courts and legislatures a roadmap to avoid a jurisprudence of doubt is

especially true of abortion jurisprudence, which is built

on legal anomalies that create the abortion-distortion

effect, whereby normal rules are bent to make Roe’s

abortion right more absolute. This effect was evident in

the soon replacement of Casey’s substantial-burden

test with burden-benefit balancing in Whole Woman’s

Health v. Hellerstedt, 136 S. Ct. 2292 (2016), the results of which were followed by a splintered Court in

June Medical Services v. Russo, 140 S. Ct. 2103 (2020).

Now a jurisprudence of doubt again exists, with lower

courts even more confused over what sliver of June

Medical controls under Marks v. United States, 430

U.S. 188, 193 (1977).

The new roadmap should guide the way back from

Roe’s tangential departure from normal legal norms by

fully embracing relevant state interests and normal

rules. First, it should reject Casey’s viability line,

which lacks justification in logic or biology, by answering the question before the Court with a clear “no.”

Second, the new roadmap should make clear that, because there is no categorical viability line, all state

interests may be considered pre-viability (as also postviability) and that courts should consider the assertion

of such interests and supportive evidence. The new

roadmap should reaffirm as legitimate all the interests

asserted by Petitioners—in protecting maternal health,

preborn human life, the medical profession, and civil

society—but make clear that other interests may be

3

asserted and considered with evidence not being barred

by any categorical viability line. Third, the new

roadmap should then clarify that courts should consider the weight of any asserted state interests to determine if the state interests justify the abortion regulation at issue under the appropriate level of scrutiny

to which the law is subject, i.e., there are no categorical

lines precluding this normal court function. Fourth, the

new roadmap should emphasize that normal rules of

law must be applied by courts and will be by this

Court, which will begin to reverse the anomalies on

which Roe’s tangent from normal legal norms was

built.

Finally, this case should be remanded to apply this

Court’s new roadmap to the Mississippi statute at issue here.

Argument

I.

Courts and legislatures need a roadmap

to avoid “a jurisprudence of doubt.”

Eliminating “a jurisprudence of doubt” was the goal

in Casey. 505 U.S. at 843.3 Accordingly, while reaffirming “Roe’s essential holding,” Casey also provided a new

three-part roadmap, id. at 846, including a pre-viability “undue interference” test, id., and the express rejection of Roe’s strict-scrutiny, trimester roadmap, id. at

872-73 (plurality). Emphasizing the “importan[ce of]

clarify[ing] what is meant by an undue burden,” id. at

3

This plurality opinion controlled under Marks, 430

U.S. at 193. See June Medical Services, 140 S. Ct. at 2135

n.1 (2020) (Roberts, C.J., concurring in judgment) (“joint

opinion is ... the holding ... under Marks ....”).

4

876, Casey explained that the new pre-viability “undue

burden” test was a “substantial obstacle” test, id. at

873-79. The roadmap was summarized in five “guiding

principles.” Id. at 877-79. This was a recognition that

courts and legislatures need a roadmap to avoid a jurisprudence of doubt. So though Petitioners here asked

this Court to “grant certiorari and clarify that the right

to a pre-viability abortion is not absolute,” Cert. Pet.

15, Amici encourages the Court to provide roadmap

sufficient to avoid a jurisprudence of doubt.

A new roadmap is required because the Court abandoned Casey’s roadmap in Whole Woman’s Health, 136

S. Ct. 2292, and June Medical Services, 140 S. Ct.

2103. Just returning to Casey’s roadmap is inadequate

because the “undue burden” “is a standard ... not built

to last”—for reasons set out by four members of this

Court. Casey, 505 U.S. at 964-65 (Rehnquist, C.J., with

White, Scalia & Thomas, JJ., concurring in the judgment in part and dissenting in part). These reasons

include the problem that “substantial obstacle” is subjective and results in differing opinions, as illustrated

by disagreements in Casey itself over various provisions, id. at 965-66, so “[u]nder the guise of the Constitution, this Court will still impart its own preferences

on the States in the form of a complex abortion code,”

id. at 965.4

4

Cf. Planned Parenthood of Indiana and Kentucky v.

Box, 949 F.3d 997, 999 (7th Cir. 2019) (Easterbrook, J., with

Sykes, J., concurring in the denial of rehearing en banc)

(“How much burden is ‘undue’ is a matter of judgment

....Only the Justices, the proprietors of the undue-burden

standard, can apply it to a new category of statute ....”).

5

The underlying problem with prior roadmaps from

Roe and Casey is that abortion jurisprudence is built on

legal anomalies, as explained next. So only a roadmap

that charts the way back from the tangent away from

normal rules that Roe began will ultimately eliminate

the jurisprudence of doubt.5

A. Abortion law is built on anomalies.

The anomalous abortion-distortion effect—whereby

normal legal rules are bent to advance an absolute

abortion right—has characterized abortion jurisprudence from the beginning. See, e.g., Bopp & Coleson,

supra note 2, at 183.6 Cf. June Medical, 140 S. Ct. at

5

While Amici believe that the logical and inevitable end

of the road of applying normal rules to abortion cases will

be to restore to the States and to the People the power to

protect unborn life throughout pregnancy, this Court need

not reach the end of the road in this case to establish the

required and appropriate roadmap. The decision on whether to reach the end of the road will likely rest with future

Courts, as they apply normal legal rules once again in considering abortion cases.

6

[A]reas of the law related to abortion—privacy

rights, fetal rights, medical regulation, and procedural and adjudicatory issues—will be examined in

the context of abortion cases. As will be seen, the

normal rules in these areas are distorted when the

case involves abortion. This abortion distortion factor is present throughout abortion case law. The distortions consistently occur in the direction of making

the abortion right more absolute.

Id. (article established such abortion-jurisprudence anomalies from Roe, 410 U.S. 113, through Thornburgh v. ACOG,

6

2471 (Alito, J., with Gorsuch, J., dissenting) (“The decision in this case like that in Whole Woman’s Health

twists the law ....”).

For example, shortly after Roe, and relying on what

Roe said was permissible, a three-judge court upheld a

post-first-trimester-hospitalization requirement, and

this Court summarily affirmed. Gary-Northwest Indiana Women’s Services v. Bowen, 496 F. Supp. 894 (N.D.

Ind. 1980), aff’d sub nom. Gary-Northwest Ind. Women’s Services v. Orr, 451 U.S. 934 (1981). In Bowen,

abortion providers said dilation-and-evacuation procedures had so improved that, for the first half of the

second trimester, a hospitalization requirement was

not reasonably related to the health interest. 496 F.

Supp. at 897. The court rejected that argument as contrary to Roe’s express language about what is permissible. Id. at 898-89. It rejected an analysis that “would

result in repeated relitigation of the constitutionality

of the same statute. It is the policy of the Supreme

Court to avoid, if possible, the creation of rules of law

which increase litigation.” Id. at 901. The court said

the “ultimate test” was “whether the legislature acted

reasonably in determining that the regulation would

promote maternal health.” Id. at 902. And it rejected

the test of “whether the statute has the statistically

demonstrable result of decreasing maternal morbidity

or mortality for specific groups of abortions.” Id. This

Court’s summary affirmance, 451 U.S. 934, was widely

viewed as permitting such hospitalization require476 U.S. 747 (1986)). See also, e.g., Paul Benjamin Linton,

The Legal Status of the Unborn Child under State Law, 6 U.

St. Thomas J. Law & Pub. Pol’y 141 (2012) (fetal rights in

non-abortion contexts, which generally reject viability line).

7

ments and endorsing the goals of reducing litigation

and keeping the federal judiciary out of the medicalboard role.

But Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1983), changed that. Lower courts had

upheld a post-first-trimester-hospitalization requirement in reliance on Roe’s roadmap. Id. at 426. Akron

reversed because medical organizations said hospitalization for all post-first-trimester abortions was no longer required. Id. at 437.7 Justice O’Connor decried the

Court acting as “Platonic Guardians,” substituting

their judgment for legislators’ by assuming the “medical board” role. Id. at 453 (citation omitted).

Thornburgh, 476 U.S. 747, was a high-water mark

of the abortion-distortion effect. Dissenting, Justice

O’Connor decried the Court being an “ad hoc nullification” machine. Id. at 814. And Chief Justice Burger

switched sides and called for Roe’s reconsideration,

noting that Roe rejected on-demand abortion and allowed state medical regulation, but Thornburgh abandoned that and him. Id. at 472-83. He noted that Roe

established a compelling interest in protecting maternal health, “[y]et today the Court astonishingly goes so

far as to say that the State may not require that a

woman contemplating an abortion be provided with

accurate medical information concerning the risks inherent in the medical procedure ....” Id. at 783. He said

Roe recognized a compelling interest in protecting viable fetal life, but the Court’s willingness to strike a

second-physician requirement (to care for a born-alive

7

Akron also struck (inter alia) requirements for a physician to conduct the informed-consent dialogue, id. at 449,

and for a 24-hour waiting period thereafter, id. at 451.

8

child) made Roe “mere shallow rhetoric.” Id. at 784.

“Undoubtedly,” he said, “the Pennsylvania Legislature

added the ... requirement on the mistaken assumption

that this Court meant what it said in Roe concerning

the ‘compelling interest’ of the states ....” Id.

Casey tried to resolve this “jurisprudence of doubt,”

505 U.S. at 843, by reaffirming an abortion right while

rejecting Roe’s trimester scheme and strict scrutiny, id.

at 873. It said scrutiny turns on whether laws place a

“substantial obstacle in the path of a woman seeking

an abortion of a nonviable fetus.” Id. at 877 (plurality

opinion).8 It allowed banning abortion after viability

(with exceptions) and recognized legitimate interests

throughout pregnancy in protecting maternal health

and preborn human life. Id. at 846. It justified reaffirming Roe’s abortion right—while reversing Roe’s

roadmap—based on institutional integrity, stare

decisis, and avoiding doubt. Id. at 843, 845-46, 854-69.

In particular, Casey stressed repeatedly the damage to

the Court of “frequent overruling” and “vacillation,” id.

at 866, which would cause “both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law,” id. at 869.

But institutional integrity, stare decisis, and avoiding doubt didn’t stop the soon displacement of Casey’s

more deferential substantial-obstacle test by a near8

See Brief of Amici Curiae National Right to Life Committee and Louisiana Right to Life Federation at 9-27, June

Medical, 140 S. Ct. 2103 (No. 18-1323) (analyzing Casey’s

test in light of its adaptation of Justice O’Connor’s threshold test and noting affirmation and application of the test

in Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam),

and Gonzales v. Carhart, 550 U.S. 124 (2007)).

9

strict-scrutiny, burden-benefit-balancing test in Whole

Woman’s Health, 136 S. Ct. 2292—with such “vacillation” and “overruling” doing “profound ... damage” to

this Court and the rule of law according to the Casey

joint opinion. Whole Woman’s Health created doubt

because, inter alia, (i) it did not follow Casey’s test, (ii)

similar regulations in different states could be treated

differently due to different local facts, and (iii) provisions in formerly settled areas of abortion jurisprudence could be challenged under the new balancing,

increasing lawsuits.

June Medical Services, 140 S. Ct. 2103, exacerbated

the doubt with a 4-1-4 decision. A four-Justice plurality

relied on Whole Woman’s Health to vote to strike abortion-clinic and abortion-provider regulations. Id. at

2112, 2130 (Breyer, J., with Ginsburg, Sotomayor &

Kagan, JJ.). Four Justices called for Whole Woman’s

Health to be “overruled insofar as it changed the Casey

test.” Id. at 2154 (Alito, J., with Thomas, Gorsuch &

Kavanaugh, JJ., dissenting).9 Chief Justice Roberts

provided the fifth vote to strike down the provisions,

citing their similarity to those in Whole Woman’s

Health and stare decisis, id. at 2134, 2139, 2141-42

9

“Unless Casey is reexamined—and Louisiana has not

asked us to do that—the test it adopted should remain the

governing standard.” Id. In the present case, Petitioners

said “the questions presented in this petition do not require

the Court to overturn Roe or Casey,” though “[i]f the Court

determines it cannot reconcile Roe and Casey with other

precedents or scientific advancements showing a compelling

interest in fetal life far earlier in pregnancy than those

cases contemplate, the Court should not retain erroneous

precedent.” Cert. Pet. 5 & n.1 (citation omitted).

10

(concurring in judgment), but he eschewed Whole

Woman’s Health’s balancing and said Casey’s test controlled, id. at 2135-38. So no majority actually did such

balancing (despite the argument that the regulations

should be upheld due to different facts10) and a majority rejected such balancing.

B. A jurisprudence of doubt persists.

As a result of the foregoing anomalies (and more

not discussed), a jurisprudence of doubt persists. One

example suffices to establish the point. After June

Medical, this Court remanded a case (involving an appeal of a preliminary injunction against an Indiana

parental-notice requirement for minors seeking abortion) for reconsideration in light of June Medical. Box

v. Planned Parenthood of Indiana and Kentucky, 140 S.

Ct. 2103 (2020). On remand, the three-judge appellate

panel split over what was the “narrowest ground” in

June Medical under Marks, 430 U.S. at 193.

The Seventh Circuit majority began by noting that

abortion-case “standards ... are not stable, but they

have not been changed, at least not yet, in a way that

would change the outcome here.” Planned Parenthood

of Indiana and Kentucky v. Box, 991 F.3d 740, 741 (7th

Cir. 2021), petition for cert. filed (U.S. Mar. 29, 2021)

(No. 20-1375). It said “[t]he Chief Justice’s concurring

10

See, e.g., June Medical, 140 S. Ct. at 2157 (Alito, J.,

with Thomas & Kavanaugh, JJ., dissenting) (“There is no

reason to think that a law requiring admitting privileges

will necessarily have the same effect in every state.”); id. at

2158 (“The suggestion that Whole Woman’s Health is materially identical to this case is ironic, since the two cases

differ in a way that was critical to the Court’s reasoning in

Whole Woman’s Health ....”)

11

opinion ... offered the narrowest basis for the judgment

in that case, giving stare decisis effect to Whole

Woman’s Health ... on the essentially identical facts in

June Medical. Id. But, after a lengthy discussion of

models for applying Marks, id. at 741, 743-50, the Seventh Circuit decided that both the June Medical plurality opinion and the Chief Justice’s language in June

Medical dissenting from Whole Woman’s Health balancing were dicta, id. at 749, and the controlling part

of June Medical was “one critical sliver of common

ground,” i.e., “Whole Woman’s Health was entitled to

stare decisis effect on essentially identical facts,” id. at

748. So “June Medical did not overrule Whole Woman’s

Health.” Id.

The Seventh Circuit dissent noted that “the Supreme Court has held several times that such parentalnotification laws are constitutional,” id. at 752 (Kanne,

J., dissenting), which for present purposes highlights

the doubt created by Whole Woman’s Health and June

Medical as to previously established areas of abortion

law. Regarding Marks, the dissent said “the finding of

a ‘substantial obstacle’ is the common denominator” in

June Medical, so abortion jurisprudence should “abandon[] the weighing of benefits that Chief Justice Roberts explicitly rejected,” id. at 753, i.e., the “critical

sliver of common ground” in June Medical was “Casey’s

requirement of ‘a substantial obstacle before striking

down an abortion regulation,’ and the Court’s prior

determination that ‘Texas’s law imposed a substantial

obstacle,’ compelled ‘the same determination about Louisiana’s law,’” id. at 755 (citation omitted). The dissent

supported its analysis at length, including showing

why the Chief Justice’s rejection of burden-benefit bal-

12

ancing was not dicta. Id. at 756.

The foregoing suffices to establish that abortion law

is currently, as in the past, a jurisprudence of doubt.

And Marks doesn’t save it. The extended debate between the Seventh Circuit majority and dissent, including the scholarly literature and case opinions cited,

establishes that Marks itself is an insufficient solution

for the abortion-law jurisprudence of doubt. See also

Brief Amicus Curiae of Americans United for Life in

Support of Petitioners, Box v. Planned Parenthood of

Indiana and Kentucky (No. 20-1375) (on petition for

writ of certiorari) (further detailing “unsettled” nature

of abortion law). A new, clear, and sufficient roadmap

is required.

II.

This case should provide

a new, clear, and sufficient roadmap.

The Court should provide a new roadmap as part of

its “duty ... to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). This new roadmap should

(A) be clear, (B) be sufficient and (C) guide the way

back from Roe’s tangential departure, particularly by

focusing on state interests and normal rules.

A. The new roadmap should be clear.

Regarding the roadmap’s nature, the long history of

anomalies and doubt in abortion jurisprudence requires that it contain a clear explication of this Court’s

current abortion jurisprudence with careful attention

to avoiding any terminology enabling litigators to reintroduce doubt after the effort to remove it, as happened

with Casey’s joint opinion in Whole Woman’s Health

13

and June Medical, as explained.11

B. The new roadmap should be sufficient.

The new roadmap should be sufficient, i.e., it should

provide enough detail and direction to courts and legislatures to stop and reverse the abortion-distortion

problem that began with Roe’s tangent from normal

jurisprudence. In arguing for such sufficiency, Amici

are mindful of the debate over minimalism, see, e.g.,

Cass R. Sunstein, One Case at a Time: Judicial

Minimalism on the Supreme Court (1999), versus the

need to establish and follow rules, see, e.g., Antonin

Scalia, The Rule of Law Is a Law of Rules, 56 U. Chi. L.

Rev. 1175 (1989); Cass R. Sunstein, Problems with

Minimalism, 58 Stan. L. Rev. 1899 (2006) (“Problems”).

But in abortion jurisprudence, there are strong precedents in Roe and Casey for establishing detailed

roadmaps to guide lower courts and legislatures. In

Roe this Court provided a roadmap summary, distilling

the trimester framework and stating approval for

states to establish qualifications for who may be a “physician” allowed to perform abortions. 410 U.S. at 16465. And Casey distilled the new roadmap into five

“guiding principles.” 505 U.S. at 877-79 (controlling

plurality). In other contexts, too, this Court has issued

such roadmaps. See, e.g., McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973); Miranda v. Ari11

For example, Whole Woman’s Health changed Casey’s

substantial-obstacle test into a burden-benefits-balancing

test based on Casey language about benefits. See, e.g., June

Medical, 140 S. Ct. at 2138 (Roberts, C.J., concurring in

judgment) (While “the Court at times discussed benefits,”

“in the context of the governing standard, these benefits

were not placed on a scale opposite the law’s burdens.”).

14

zona, 384 U.S. 436, 467-74 (1966). And though Justice

O’Connor was “the Court’s leading minimalist,” Sunstein, Problems, 58 Stan. L. Rev. at 1907, and though

she decried Roe’s trimester framework, including the

viability line, as being “on a collision course with itself,” Akron, 462 U.S. at 458 (O’Connor, J., with White

& Rehnquist, JJ., dissenting), she coauthored the joint

Casey opinion that retained a viability line in its new

roadmap.

Also, this Court has a unique role regarding dictum:

[T]his Court’s unique role means that even dictum is accorded substantial weight. See Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed.

257 (1821) (Marshall, C.J.); United States v.

Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006)

(“[C]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” (quotation marks omitted)).”

Wagner v. FEC, 717 F.3d 1007, 1015 (D.C. Cir. 2013).

And in Mazurek, 520 U.S. 968 (upholding denial of preliminary injunction sought by a physician-assistant

against a law allowing only physicians to perform abortions), this Court itself relied on the fact that Roe had

said the state may define the “physician” who performs

an abortion as the state chooses, “although it was not

necessary to our holding.” Id. at 974 (citing Roe, 410

U.S. at 165). Mazurek similarly relied on a statement

in Akron restating what Roe had said about restricting

abortions to physicians, id. at 974-75 (citing 462 U.S.

at 447).

Furthermore, the nature of the sole issue on which

this Court granted review—“Whether all pre-viability

15

prohibitions on elective abortions are unconstitutional,” Cert. Pet. i—lends itself to providing a roadmap because it implicates a line incorporated in the

Roe and Casey roadmaps, so simply answering with a

minimalist “no” would provide little guidance as to why

that feature of two prior roadmaps is being abandoned

and what the law is now.

Finally, the roadmap that is needed here is well

justified because what is required is not one creating

new lines without constitutional support (as in Roe’s

trimester framework and Casey’s viability line) but

rather an instruction to lower courts to return to normal rules in abortion cases and a strong declaration to

courts and legislatures that this Court will be doing so

too. That creates no Article III or other obiter-dictum

problems but rather is like this Court’s declaration

that (in other areas of the law) it would abandon the

“Lochnering” of the sort this Court did in Roe. See Bopp

& Coleson, supra note 2, at 197-200) (discussing such

critiques of Roe and showing comparisons with abortion law and calling for a similar abandonment as happened with Lochner v. New York, 198 U.S. 45 (1905)).

So a sufficient roadmap is proper.

C. The new roadmap should guide the way back

from Roe’s tangent from normal rules by fully

embracing relevant state interests and normal rules.

The new roadmap should guide the way back from

the tangential departure of abortion jurisprudence

from normal jurisprudence that was launched by Roe,

410 U.S. 113. As a central focus of that, it should establish that (1) pre-viability application does not preclude elective-abortion prohibitions; (2) all relevant

16

state interests, and their evidentiary support, should

be considered in pre-viability applications; (3) courts

must consider if asserted state interests satisfy relevant scrutiny applied to the abortion law; and (4) normal legal rules apply.

1. Pre-viability application does not preclude

elective-abortion prohibitions.

The issue for review here is “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” Cert. Pet. i. This Court should hold clearly that

the answer is “no,” so that there should never again be

a case where the state is not allowed to put on evidence

supporting its state interests applicable before viability, as happened in this case.

The viability line was nonsensical in Roe, and its

reaffirmation in Casey made no more sense. Roe purported to justify the line thus:

With respect to the State’s important and legitimate interest in potential life, the “compelling”

point is at viability. This is so because the fetus

then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus

has both logical and biological justifications.

410 U.S. at 163. But that second sentence is a mere

definition of viability, not an explanation of why viability restricts the interest in protecting preborn human

life from being compelling before that line is reached.

So it gave no “logical and biological justifications.”

In Casey, the plurality’s defense of the viability line

was no better, featuring (i) Roe’s definitional approach,

(ii) workability (“there is no other line ... more workable”), and (iii) “an element of fairness” (based on

17

women waiting so long). 505 U.S. at 870.

Regarding (i) the definitional approach, it fares no

better in Casey than it did in Roe because a viability

definition is not a logical, biological, constitutional justification for a viability line categorically excluding

state protection of preborn human beings. Unless

preborn humans are delivered at viability, the fact that

they can then survive outside the womb is no more

meaningful than the fact that if left alone in the womb

they will continue to be living individual human beings—both before and after the time they would be

viable beyond the womb. Before and after the externalviability line, a preborn human is fully viable in the

womb. Nothing about the viability line, which varies

based on current medical technology, makes a preborn

human more or less a preborn human being.

The interest in protecting preborn humans, therefore, is as strong before as after viability. Cf. Akron,

462 U.S. at 461 (O’Connor, J., dissenting) (“potential

life is no less potential in the first weeks of pregnancy

than it is at viability or afterward”). And at no time are

preborn humans “potential life” because (a) at all times

they are living, individual human beings—as known

since cell biology was discovered in the 1800s, see, e.g.,

Bopp & Coleson, supra note 2, at 256 & n.53812—and

12

The cited material documents (1) the cell-biology discovery that individual human life begins when sperm and

ovum unite and (2) the subsequent “physicians’ crusade” to

gain legal protection for preborn humans from abortion,

beginning at fertilization instead of the old, unscientific

quickening line. Several states explicitly affirmed (and others implied) that protection of the unborn child was a purpose of their abortion-prohibition laws, not just protecting

18

(b) there would be no abortion debate at all if preborn

humans were not alive. “Potential” implies that preborn, living humans aren’t alive until birth, which is

nonsensical and against science.

Regarding (ii) workability, the lack of a more workable line doesn’t justify the viability line. Rather, it

merely shows that the joint-opinion Justices wanted a

line and so picked one—based on no other justification

than the desire to create one. The same thing happened with Roe’s trimester framework, which Casey

rejected while adopting Roe’s sloppy, irrational approach of drawing unjustified lines.

Regarding (iii) fairness, the Casey plurality’s principle that delay in seeking an abortion justifies prohibiting abortion at viability under a fairness rationale

equally justifies prohibiting most abortions after fifteen weeks, as in Mississippi’s Gestational Age Act.

After all, most European Union countries say fairness

requires limiting most abortions to twelve weeks. See

Right to Life of UK, What are the abortion time limits

in EU countries?, https://righttolife.org.uk/what-arethe-abortion-time-limits-in-eu-countries; BBC, Europe’s

abortion rules, BBC News (Feb. 12, 2007),

http://news.bbc.co.uk/2/hi/europe/6235557.stm. And in

considering fairness, fairness to preborn children must

be put on the scale too since they are individual human

lives, an interest essentially ignored in Roe and Casey.

This Court has begun the process of rejecting the

viability line, so there is already precedent for doing so.

In Gonzales, 550 U.S. 124, this Court recognized a legitimate interest “in protecting ... the life of the fetus

maternal health as Justice Blackmun claimed in Roe. Id.

(citing Roe, 410 U.S. at 151 & n.48)).

19

that may become a child” “from the outset of the pregnancy,” id. at 145 (citing Casey, 505 U.S. at 846), and

thus upheld a partial-birth-abortion ban without regard to its application both pre- and post-viability, id.

at 147 (“a fetus is a living organism ... whether or not

it is viable”). Justice Ginsburg recognized that the

Court had abandoned the viability line at the time. Id.

at 171, 186 (“blurs the line”). So reverting to Casey’s

reliance on the viability line would be inconsistent

with Gonzales.

Because Petitioners address proffered evidence of

factual developments since Roe concerning states’ interests before viability, Amici don’t address that. But

Amici agree with Petitioners that recent facts about

fetal pain, maternal-health risk, and protecting the

medical profession and society undercut the argument

for delayed abortions inherent in a viability line. Such

evidence was certainly not at issue in Roe, where the

viability line wasn’t even at issue and so not subject to

argument and evidence, further undercutting any reason to follow the viability-line dictum here.

In sum, there is no logical, biological, or constitutional justification for a viability line in abortion jurisprudence. This Court’s new roadmap should make

clear that Roe’s and Casey’s categorical viability line is

gone and should be disregarded in all further cases, as

it will be by this Court. If viability were to have any

further possible relevance, it should not be as a categorical matter and should only be employed where actually constitutionally relevant (if such relevance is

established), based on consideration of all relevant

state interests, subject to evidentiary proof under the

relevant scrutiny, under normal rules of jurisprudence.

20

2. All relevant state interests should be considered in pre-viability applications.

This Court’s new roadmap should make clear that

all relevant state interests should be considered by

courts in pre-viability applications, just as in post-viability applications. This logically follows removal of the

categorical, viability-line protection for abortion and is

consistent with applying normal rules of law.

Refusal to consider state interests—and disallow

evidence for those interests, as happened here—is emblematic of the entire abortion-distortion factor at work

in abortion jurisprudence. Consequently, a vital part of

beginning removal of the tangent from normal law that

Roe began is fully recognizing and considering relevant

state interests. These interests include the interests

asserted by Petitioners here: (a) protecting maternal

health, (b) protecting preborn, individual human life,

and (c) protecting against harm to the medical profession and civil society. But the roadmap should make

clear that (d) states may assert and support with evidence all other relevant and legitimate state interests

in abortion cases to defend laws that apply at any

stage of pregnancy.

a. States may assert an interest in protecting maternal health for all periods of

pregnancy.

The new roadmap should reaffirm that protecting

maternal health is a relevant interest to be considered

(with evidence admissible) at all stages of pregnancy

without any prior limitation based on artificial lines

created by this Court.

Roe created an artificial line at the end of the first

trimester after which it declared that state interest in

21

maternal health could be considered: “With respect to

the State’s important and legitimate interest in the

health of the mother, the ‘compelling’ point, in the light

of present medical knowledge, is at approximately the

end of the first trimester.” 410 U.S. at 163. Before that

approximate, movable line (based on current “medical

knowledge,” which necessitates allowing evidence), Roe

left all concern for maternal health to the “attending

physician”: “For the stage prior to approximately the

end of the first trimester, the abortion decision and its

effectuation must be left to the medical judgment of the

pregnant woman’s attending physician.” Id. at 164.

While ignoring the conflict of interest inherent in giving the physician performing an abortion essentially

carte blanche to determine what protects the maternal

patient’s health, Roe at least allowed states to establish qualifications for who may be a “physician” allowed to perform abortions. 410 U.S. at 165. And that

was followed in Mazurek, 520 U.S. 968, and Menillo,

423 U.S. 9.

But when states required that the “physician” be

one with local hospital admitting privileges who operates in a facility that meets the same requirements as

similar ambulatory surgical centers, this Court backtracked in Whole Woman’s Health, 136 S. Ct. 2292, and

June Medical, 140 S. Ct. 2103, on what Roe said was

permissible in protecting maternal health. The new

roadmap should reaffirm the state’s interest in protecting maternal health, which may be asserted to justify

abortion regulation, where appropriate.

22

b. States may assert an interest in protecting preborn, individual human life, including against pain, during all periods

of pregnancy.

The new roadmap should reaffirm that protecting

preborn, individual human life, including against pain,

is a relevant interest to be considered (with evidence

admissible) at all stages of pregnancy without any

prior limitation based on artificial lines created by this

Court. Roe held that the state’s interest in protecting

preborn human life became compelling at viability. 410

U.S. at 164. But this meant little in Thornburgh. Supra Part I.A. Casey abandoned the need for strict scrutiny with its new substantial-obstacle test, so it did not

speak in terms of compelling interests, but it “recogni[zed] that there is a substantial interest in potential

life throughout pregnancy.” 505 U.S. at 876 (plurality).

Gonzales recognized this interest without regard to

viability. 550 U.S. at 147, 157. As Petitioners develop

factually, this interest should be recognized as extending to protecting preborn human beings from pain.

These interests should be reaffirmed as interests states

may always assert as relevant.

c. States may assert an interest in protecting against harm to the medical profession and civil society during all periods

of pregnancy.

The new roadmap should affirm that protecting

against harm to the medical profession and civil society is a relevant state interest to be considered (with

evidence admissible), regardless of the stage of pregnancy. Petitioners develop this factually, and this

Court recognized in Roe that states could regulate who

23

qualifies as a “physician” to perform abortion, though

in later decisions this has often been ignored. See supra Part I.A.

In Gonzales, 550 U.S. 124, however, this Court recited approvingly congressional findings in support of

its partial-birth-abortion ban, including that a partialbirth-abortion is “‘a brutal and inhuman procedure’”

and, by not prohibiting it, it “‘will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.’” Id. at 157 (citation

omitted). This Court noted that “[t]he Act expresses

respect for the dignity of human life,” and “Congress

was concerned, furthermore, with the effects on the

medical community and on its reputation caused by the

practice of partial-birth abortion.” Id. And the Act’s

findings continued, noted this Court:

“Partial-birth abortion ... confuses the medical,

legal, and ethical duties of physicians to preserve and promote life, as the physician acts

directly against the physical life of a child,

whom he or she had just delivered, all but the

head, out of the womb, in order to end that life.”

Id. (citation omitted). Then this Court held that such

concerns are fully legitimate state interests: “There can

be no doubt that the government ‘has an interest in

protecting the integrity and ethics of the medical profession.’” Id. (citations omitted). As with the other interests this Court has recognized, this interest should be

reaffirmed as cognizable (and for which evidence may

be admitted) to guide lower courts.

24

d. States may assert all other relevant interests pre-viability and establish them

with evidence.

Beyond reaffirmation of the foregoing interests asserted by Petitioners here, the new roadmap should

affirm that courts may consider all other relevant state

interests (with evidence admissible) without regard to

any viability line. For example, in Box v. Planned Parenthood of Indiana and Kentucky, 139 S. Ct. 1780

(2019) (per curiam), this Court denied certiorari to review “whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions

by abortion providers” because only one circuit had

held such a law unconstitutional, id. at 1782. Justice

Thomas concurred in an opinion that developed at

length the eugenics movement, its relation to abortion,

and the use of abortion for the reasons that Indiana

banned such knowing abortions by abortion providers.

Id. at 1782-93. He noted that “both the District Court

and the Seventh Circuit held that this Court had already decided the matter: ‘Casey’s holding that a

woman has the right to terminate her pregnancy

through viability is categorical.’” Id. at 1792 (citations

omitted). But, as Justice Thomas and Judge Easterbrook (dissenting) noted, Casey didn’t consider such an

issue. Id. (citation omitted).

This Court should hold that Casey’s viability line

does not preclude prohibitions prior to viability as a

categorical matter of the interests represented by such

laws (and others) and that states are free to assert

such interests and to submit evidence in support of

them without regard to any categorical viability line.

25

3. Courts must consider if established state

interests satisfy relevant scrutiny in context.

The new roadmap should also establish that courts

must consider whether relevant interests (of the sort

just described) satisfy the applicable scrutiny in context, based on evidence. With the artificial, categorical,

viability line removed by this Court, there will be no

excuse for a district court again to refuse to admit evidence on asserted state interests.

Of course, what is the applicable scrutiny must be

clarified in the new roadmap if there is to be removal

of the jurisprudence of doubt. So at a minimum, the

Casey language about “benefits” and the like on which

abortion advocates relied to persuade courts to abandon Casey’s substantial-obstacle test in favor of a

burden-benefit-balancing test must be clarified so as to

never again be so used.

But whatever scrutiny this Court has established,

the new roadmap should focus on fully embracing state

interests and allowing states to assert them and submit evidence to meet the relevant scrutiny. Focusing

on state interests, along with requiring the application

of normal rules, as discussed next, provides the surest

means of reversing the anomalous tangent that is Roe

and its progeny.

4. Normal rules must apply.

The new roadmap should establish that normal legal rules apply in abortion cases and that the abortiondistortion effect is henceforth to be eliminated. And

simply applying normal rules, and requiring lower

courts to do the same, will begin the process of reversing the anomalous tangent on which this Court

26

launched in Roe.

For example, applying normal rules will restore the

facial-challenge test of United States v. Salerno, 481

U.S. 739 (1987), to abortion jurisprudence instead of

Casey’s “large fraction” test that Justice Ginsburg acknowledged “is, in short, no fraction because the numerator and denominator are the same,” Gonzales, 550

U.S. at 188 n.20 (Ginsburg, J., with Stevens, Souter &

Breyer, JJ., dissenting).

Normal rules will also restore the preference for asapplied challenges instead of pre-enforcement, facial

challenges, as held in Gonzales. Id. at 167. Normal

rules, if applied faithfully, will eliminate third-party

standing for abortion clinics and abortion doctors,

which has repeatedly been advocated. See, e.g., Cert.

Pet. i (third question presented raised this issue,

though review was not granted); Bopp & Coleson, supra note 2, at 306-315 (establishing anomalous treatment of standing in abortion jurisprudence, including

for third-party standing). Of course, systematically

applying normal rules will eventually lead all the way

back to Roe, which was itself built on anomalies.

III.

This case should be remanded

to apply this Court’s new roadmap.

After this Court has established the new roadmap,

this case should be remanded to the court below to apply the new roadmap to the Mississippi statute before

this Court. That too would be the normal rule. The

court below would do so properly by recognizing that (i)

no viability line precludes abortion prohibitions before

viability, (ii) relevant interests, and their evidentiary

support, must be considered in defense of state laws

27

applicable at all pregnancy stages, (iii) courts must

consider if state interests satisfy relevant scrutiny, and

(iv) normal rules must apply.

Conclusion

This case should be reversed and remanded for further consideration under this Court’s new roadmap.

Respectfully submitted,

James Bopp, Jr.

jboppjr@aol.com

Counsel of Record

Richard E. Coleson

rcoleson@bopplaw.com

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Amici Curiae