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 29, 2021
Ask Donna
What actually matters in this document.
Text
No. 19-1392
In the Supreme Court of the
United States
THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR PROFESSORS MARY ANN GLENDON
AND O. CARTER SNEAD AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
HEATHER GEBELIN HACKER
Counsel of Record
HACKER STEPHENS LLP
108 Wild Basin Rd., Suite 250
Austin, Texas 78746
heather@hackerstephens.com
(512) 399-3022
QU E S TIO N P RE SE N TE D
Whether all previability prohibitions on elective
abortions are unconstitutional.
(I)
TA BLE O F C O NTE N TS
Page
Question presented .......................................................... I
Table of authorities ....................................................... III
Interest of amici curiae ................................................... 1
Summary of argument..................................................... 3
Argument.......................................................................... 5
I. American Abortion Jurisprudence Is
Untethered from the Text, History, or
Tradition of the Constitution. .............................. 5
A. Roe v. Wade and Doe v. Bolton are
unjustifiable as a matter of constitutional
law. ................................................................... 6
B. Casey effectively overruled Roe and further
disconnected the abortion jurisprudence of
the court from the Constitution. .................. 13
C. Precedents following Casey have moved yet
further from the Constitution’s text, history,
and tradition, and have caused more
confusion in the lower federal courts. ......... 15
II. Principles of Stare Decisis Counsel Overruling
the Precedents That Comprise American
Abortion Jurisprudence. .................................... 18
III. The Court’s Abortion Jurisprudence Grafts On
to American Law a Constitutionally
Unwarranted, False, and Destructive Account
of Human Identity and Flourishing. ................. 27
Conclusion ...................................................................... 29
(II)
III
TA BLE O F AU T HO R I TIE S
Page(s)
Cases:
Akron v. Akron Ctr. for Reprod. Health,
462 U.S. 416 (1983) ............................................. 5, 21
Bristol Reg’l Women’s Ctr., P.C. v. Slatery,
994 F.3d 774 (6th Cir. 2021) ....................................21
Brown v. Board of Education,
374 U.S. 483 (1954) ..................................................25
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) ................................................... 5
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ..................................................26
Doe v. Bolton,
410 U.S. 179 (1973) ..................................................10
EMW Women’s Surgical Ctr., P.S.C. v. Friedlander,
978 F.3d 418 (6th Cir. 2020) ....................................17
Falls Church Med. Ctr., LLC v. Oliver,
412 F. Supp. 3d. 668 (E.D. Va. 2019) .....................21
Gonzales v. Carhart,
550 U.S. 124 (2007) ........................................ 6, 15, 16
Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................... 7
Henslee v. Union Planters Nat’l Bank & Trust Co.,
355 U.S. 595 (1949) ..................................................19
Hill v. Colorado,
530 U.S. 703 (2000) ..................................................22
Hopkins v. Jegley,
968 F.3d 912 (8th Cir. 2020) ....................................17
IV
Page(s)
Cases—Continued:
June Medical Servs., LLC v. Russo,
140 S. Ct. 2103 (2020) ..................................... passim
Knick v. Twp. of Scott,
139 S. Ct. 2162 (2019) .......................................... 5, 19
Maher v. Roe,
432 U.S. 464 (1977) ................................................... 5
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ................................................. 22
Payne v. Tennessee,
501 U.S. 808 (1991) .................................................18
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ......................................... passim
Planned Parenthood of Ind. and Ky. v. Box,
991 F.3d 740 (7th Cir. 2021) ....................................17
Planned Parenthood of Ind. and Ky. v. Box,
949 F.3d 997 (7th Cir. 2019) .............................. 20-21
Planned Parenthood of Ind. & Ky., Inc. v. Adams,
937 F.3d 973 (7th Cir. 2019) ....................................21
Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of
Ind. State Dep’t of Health,
896 F.3d 809 (7th Cir. 2018) ....................................21
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) .............................. 2, 19, 20, 22
Roe v. Wade,
314 F. Supp. 1217 (N.D. Tex. 1970) .....................6, 7
Roe v. Wade,
410 U.S. 113 (1973) ......................................... passim
V
Page(s)
Cases—Continued:
Stenberg v. Carhart,
530 U.S. 914 (2000) ............................................ 15, 22
Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747 (1986) ......................... 5
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ................................... 6, 16, 22
Whole Woman’s Health v. Paxton,
978 F.3d 896 (5th Cir. 2020) ....................................17
Statutes:
18 U.S.C. § 228 ..............................................................24
28 U.S.C. § 2284 ............................................................. 7
42 U.S.C. § 2000e(k) ......................................................24
Pub. L. 94–381, 90 Stat. 1119 (1976) ............................. 7
Other Authorities:
A. Raymond Randolph, Before Roe v. Wade: Judge
Friendly’s Draft Abortion Opinion, 29 Harv.
J. L. & Pub. Pol’y 1037 (2006) ................................11
Angelina B. Nguyen, “Mississippi’s 15 Week
Gestational Limit on Abortion is Mainstream
Compared to European Law,” Charlotte Lozier
Inst. (July 2021) ................................................... 3, 24
Byron Calhoun, The Maternal Mortality Myth In the
Context of Legalized Abortion, 80 Linacre
Q. 264 (2013) ............................................................12
VI
Page(s)
Other Authorities—Continued:
Ctrs. for Disease Control, Katherine Kortsmit et al.,
Abortion Surveillance – United States, 2018, 69
MMWR Surveillance Summaries 1 (2020),
https://www.cdc.gov/mmwr/volumes/69/ss/ss6907a1.htm#T9_down....................... 3
David Leonhardt, How Abortion Views are Different,
New York Times (May 19, 2021), https://www.nytimes.com/2021/05/19/briefing/abortion-debate-public-opinion.html?action=click&module=Briefings&pgtype=Homepage ........................................ 3
John Hart Ely, The Wages of Crying Wolf: A Comment
on Roe v. Wade, 82 Yale L.J. 920 (1973) ......... 12, 13
John Keown, Back to the Future of Abortion Law:
Roe’s Rejection of America’s History and Traditions, 22 Issues in L. & Med. 3 (2006) ............... 9, 11
Joseph W. Dellapenna, Dispelling the Myths of Abortion History (2006).............................................. 9, 10
Joseph W. Dellapenna, The Historical Case Against
Roe v. Wade, NLA Rev. 11–13 (Spring 1988) ........ 8
Kathy Gifford, et al., Medicaid Coverage of Pregnancy
and Perinatal Benefits: Results from a State Survey, KFF (Apr. 27, 2017), https://kff.org/womenshealth-policy/report/medicaid-coverage-of-pregnancy-and-perinatal-benefits-results-from-a-statesurvey/ ......................................................................24
VII
Page(s)
Other Authorities—Continued:
Michelle Ye Hee Lee, Is the United States One of Seven
Countries that “Allows Elective Abortions After
Twenty Weeks of Pregnancy?”, Wash. Post, Oct. 9,
2017 ......................................................................... 22
Nat’l Right to Life, Abortion Statistics: United States
Data and Trends, https://www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf..........................22
O. Carter Snead, What It Means to be Human: The
Case for the Body in Public Bioethics (Harvard U.
Press 2020) ...................................................... passim
Timothy P. Carney, Honest pro-choicers admit Roe v.
Wade was a horrible decision, Wash. Exam’r, Jan.
22, 2011, https://www.washingtonexaminer.com/honest-pro-choicers-admit-roe-v-wade-was-a-horribledecision.....................................................................12
INTE RE ST O F A MIC I C U RI AE
Amici curiae are professors of law with extensive experience in teaching, research, and public service concerning the governance of science, medicine, and biotechnology in the name of ethical goods both domestically and internationally. 1
Mary Ann Glendon is the Learned Hand Professor of
Law, emerita, at Harvard Law School. She served as
U.S. Ambassador to the Holy See, chaired the U.S. State
Department Commission on Unalienable Rights, was a
member of the Commission on International Religious
Freedom, and the U.S. President’s Council on Bioethics.
She led the Holy See’s delegation at the 1995 U.N.’s
Women’s Conference in Beijing. She is the author of numerous award-winning and widely translated works including The Forum and the Tower (2011), Rights Talk
(1991), and Abortion and Divorce in Western Law
(1987). She received the National Humanities Medal and
was an elected member of the American Academy of Arts
and Sciences.
O. Carter Snead is Professor of Law, Concurrent
Professor of Political Science, and Director of the de Nicola Center for Ethics and Culture at the University of
Notre Dame. He is author, most recently, of What It
Means to be Human: The Case for the Body in Public
Bioethics (Harvard University Press 2020). He served as
General Counsel to the U.S. President’s Council on Bio-
Petitioner and Respondent provided blanket consent for the
filing of amicus briefs. Rule 37.3(a). No person other than amici
curiae or their counsel authored the brief in whole or in part nor
made a monetary contribution intended to fund the preparation or
submission of the brief. Printing fees were paid by the law firm of
Tracey Fox King & Walters, where Professor Snead is Of Counsel.
1
2
ethics, as U.S. Permanent Observer to the Council of Europe’s Steering Committee on Bioethics, led negotiations
on behalf of the United States government at UNESCO
for the Universal Declaration on Bioethics and Human
Rights, and served a four-year appointed term on
UNESCO’s International Bioethics Committee, the only
bioethics advisory body in the world with a global mandate. He is an elected fellow of the Hastings Center.
Amici write to explain how the Supreme Court’s current abortion jurisprudence entrenches in the law a vision of human identity and flourishing that is not only
constitutionally unwarranted, but is also false and pernicious, erecting an insuperable obstacle to the provision
of needed care, protection, and support to vulnerable
mothers, children, and families. The “manifestly absurd
[and] unjust” 2 precedents that comprise this jurisprudence should be overruled, and the American people
should be permitted to join the supermajority of nations
around the world where citizens themselves have been
allowed to deal with this contested matter through ordinary democratic political processes.
Cf. Ramos v. Louisiana, 140 S. Ct. 1390, 1415 (2020) (Kavanaugh, J., concurring in part) (quoting 1 Blackstone, Commentaries on the Laws of England, at 70).
2
3
SU M MA RY O F A RGU ME NT
Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks gestational development
(with exceptions for medical emergency or fetal abnormality) is quite modest in impact 3, more permissive than
the vast majority of the laws on abortion around the
world (including in all but three European nations 4), and
appears to be broadly popular. 5 But it seems to clearly
violate the Supreme Court-made law of abortion, which
forbids the State from imposing an “undue burden” on a
woman’s ultimate authority to obtain an abortion prior to
fetal viability. While it has never been clear what constitutes an “undue burden” in the context of abortion, it
seems that a previability ban runs afoul of this standard.
This case thus offers the cleanest opportunity since Roe
v. Wade was decided in 1973 for the Court to revisit its
deeply flawed and harmful jurisprudence.
See, e.g., Ctrs. for Disease Control, Katherine Kortsmit et al.,
Abortion Surveillance – United States, 2018, 69 MMWR Surveillance Summaries 1, 23 tbl.9 (2020), https://www.cdc.gov/mmwr/volumes/69/ss/ss6907a1.htm#T9_down (showing the percentage of
abortions 16 weeks and later in Mississippi to be 0.7%).
4
See, e.g., Angelina B. Nguyen, “Mississippi’s 15 Week Gestational Limit on Abortion is Mainstream Compared to European
Law,” Charlotte Lozier Inst., https://lozierinstitute.org/wp-content/uploads/2021/07/On-Point-63.pdf (July 2021).
5
See, e.g., David Leonhardt, How Abortion Views are Different,
N.Y.
Times
(May
19,
2021),
https://www.nytimes.com/2021/05/19/briefing/abortion-debate-public-opinion.html
(noting that “less than 30 percent of Americans say that abortion
‘should be generally legal’ in the second trimester, according to Gallup.”).
3
4
The Court’s abortion jurisprudence is completely untethered from the Constitution’s text, history, and tradition. It has imposed an extreme, incoherent, unworkable,
and antidemocratic legal regime for abortion on the nation for several decades (pursuant to constantly shifting
rules, standards, and rationales). Fidelity to the Constitution, the rule of law, and the institutional integrity of
the Court warrant reversal of those precedents (including Roe v. Wade, Doe v. Bolton, and Planned Parenthood
v. Casey), and principles of stare decisis present no obstacle in doing so. In addition to suffering from these fatal defects, American abortion jurisprudence imposes on
the nation a particular vision of human identity and flourishing that is constitutionally unjustified and pernicious:
It systematically prevents the elected branches of government from adopting measures that address the needs
of vulnerable mothers, children, and families. The
Court’s abortion jurisprudence grafted onto the Constitution a vision of what it means to be and flourish as a
human being that isolates mother and child, pitting them
against one another in a narrative of zero-sum conflict
among strangers, thus depriving them of much needed
sources of protection, support, and care.
5
ARGU ME N T
I. American Abortion Jurisprudence Is Untethered
from the Text, History, or Tradition of the
Constitution.
Because of its unstable legal and normative foundations, the constitutional right to abortion is, to borrow a
phrase from Chief Justice Roberts, “a rule in search of a
justification.” Knick v. Twp. of Scott, 139 S. Ct. 2162,
2178 (2019). Despite multiple decades and attempts by
various combinations of Justices, it has never been successfully grounded in the text, history, or tradition of the
Constitution. It has been variously treated as a “fundamental right,” (in Roe) then as a seemingly less robust
“protected liberty” (in Casey). See Roe v. Wade, 410 U.S.
113, 152–53 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992). Significantly, the Court
avoided using the term “right to abortion” until years after Roe. 6 The abortion license has been grounded alternatively in the different goods of “privacy” (in Roe), then
See, e.g., Maher v. Roe, 432 U.S. 464, 473 (1977) (“Roe did not
declare an unqualified ‘constitutional right to an abortion,’ as the
District Court seemed to think.”); Carey v. Population Servs. Int’l,
431 U.S. 678, 688 (1977) (“[T]he same test must be applied to state
regulations that burden an individual’s right to decide to prevent
conception or terminate pregnancy by substantially limiting access
to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely.”); Akron v. Akron Ctr. for
Reprod. Health, 462 U.S. 416, 427 (1983) (“But restrictive state regulation of the right to choose abortion, as with other fundamental
rights subject to searching judicial examination, must be supported
by a compelling state interest.”); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 749 (1986) (The “reporting
requirements raise the specter of public exposure and harassment
of women who choose to exercise their personal, intensely private,
right, with their physician, to end a pregnancy.”)
6
6
“liberty” (in Casey), and later “equality” (in Justice Ginsburg’s dissent in Gonzales v. Carhart). See Roe, 410 U.S.
at 152–53; Casey, 505 U.S. at 846; Gonzales v. Carhart,
550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting). It has
been operationalized pursuant to the “trimester framework” of Roe, later discarded for the pre- versus postviability “undue burden” analysis of Casey, transformed
yet again into an open-ended “burden vs. benefit” calculus in Whole Woman’s Health v. Hellerstedt, and then finally remade into its current iteration in June Medical
Services v. Russo, which seems to combine a “substantial
obstacle” assessment with a “rational basis test.” See
Roe, 410 U.S. at 163; Casey, 505 U.S. at 873; Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309
(2016); June Medical Servs., LLC v. Russo, 140 S. Ct.
2103, 2135 (2020) (Roberts, C.J., concurring in judgment). Despite these decades of attempts at post-hoc rationalization, there has never been a defensible connection between the putative right to abortion and the Constitution itself.
A. Roe v. Wade and Doe v. Bolton are
unjustifiable as a matter of constitutional
law.
1. The process of inventing a constitutional right to
abortion began in earnest with the 1970 decision of a
three-judge panel of a U.S. District Court in Texas in
1970. 7 Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970).
“Jane Roe” and other parties challenged Texas’s law
A more detailed history and critique of the genesis of the right
to abortion can be found in O. Carter Snead, What It Means to be
Human: The Case for the Body in Public Bioethics, Chapter 3, pp.
106–85 (Harvard U. Press 2020).
7
7
banning abortion (except when necessary to save the life
of the mother). Relying upon Justice Goldberg’s concurring opinion in Griswold v. Connecticut, 381 U.S. 479,
486–99 (1965), the trial court concluded—without any evidentiary hearing—that the law was an unconstitutional
violation of the right “to choose whether to have children” guaranteed by Ninth Amendment (made applicable to Texas via the Fourteenth Amendment). 8 Roe, 314
F. Supp. at 1219. But the trial court declined to enjoin
the law on abstention grounds, as it would interfere in
the process of state criminal procedures. Id. at 1224. By
operation of the Three-Judge Court Act, the matter was
appealed directly to the Supreme Court of the United
States. See 28 U.S.C. § 2284. 9
The Supreme Court issued its opinion by Justice
Blackmun on January 22, 1973. Roe, 410 U.S. 113. Put
succinctly, the Court held that the unenumerated fundamental right to privacy announced in Griswold “is broad
enough to encompass a woman’s decision whether or not
to terminate her pregnancy.” Id. at 153. The Court did
not embrace the Ninth Amendment as the source of authority for this right, but rather the Fourteenth Amendment’s Due Process Clause, under the still-controversial
doctrine of “substantive due process.” Id. at 164. As will
be explained further below, the Court created the right
to abortion as a response to the burdens before and after
the child is born both for the mother and “for all concerned, associated with the unwanted child.” Id. at 153.
Moreover, the State’s countervailing interests in what
The district court also found Texas’s law to be unconstitutionally vague. Roe, 314 F. Supp. at 1223.
9
The relevant provisions of this statute were repealed soon after Roe v. Wade in 1976. Pub. L. 94–381, 90 Stat. 1119 (1976).
8
8
Justice Blackmun described as “health and potential life”
were not sufficiently compelling to warrant Texas’s restrictions. Id. at 156. No mention was made of the interest of members of the medical profession concerned
about potential liability for their increasing, but legally
dubious, practice of “therapeutic” abortions.
Without much argument, and without reliance on any
evidentiary record (for there was none), the Court held
that the Fourteenth Amendment’s protections did not
apply to unborn human beings, while simultaneously
claiming not to take a position on the moral or ontological
status of the unborn human child. Id. at 157–59. It declared that Texas was not permitted to embrace “one
theory of life,” and “override the rights of the pregnant
woman that are at stake.” Id. at 162. Thus, by forbidding
Texas from protecting unborn children as persons and
making their status entirely dependent on whether they
were wanted by their mothers, it effectively declared
them to be beyond the bounds and protection of our legal
system. That is, the Court forbade lawmakers throughout country from treating the unborn as persons.
Then, relying in part on a law review article written
by counsel for the abortion rights advocacy organization
NARAL (though not identified as such), the majority
embraced a novel and now thoroughly debunked 10
(though regrettably oft-repeated) account of American
history which suggested that abortion restrictions were
an innovation of the mid-nineteenth century undertaken
for the sake of policing the professional boundaries of
physicians rather than out of concern for the unborn
child. The majority asserted that “at common law, at the
See, e.g., Joseph W. Dellapenna, The Historical Case Against
Roe v. Wade, NLA Rev. 11–13 (Spring 1988).
10
9
time of the adoption of our Constitution, and throughout
the major portion of the 19th century, abortion was
viewed with less disfavor than under most American
statutes currently in effect. Phrasing it another way, a
woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today.”
Roe, 410 U.S. at 140. But “[a] more recent trawl of the
authorities . . . confirms that abortion was an offense at
common law both in England and its American colonies
. . . [and] precedents unearthed hitherto (in Connecticut,
Delaware, Maryland, Rhode Island and Virginia) show
that the prohibition on abortion was at least as strict as
in England.” John Keown, Back to the Future of Abortion Law: Roe’s Rejection of America’s History and
Traditions, 22 Issues in L. & Med. 3, 11 (2006) (citing
Joseph W. Dellapenna, Dispelling the Myths of Abortion
History ch. 3–5 (2006)).
Based on his own research and speculation regarding
the relative safety of abortion and childbirth, untested
for reliability or accuracy by the adversarial process,
Justice Blackmun next announced the infamous “trimester framework,” which no party had ever argued for.
Roe, 410 U.S. at 163. He concluded that the State may
not interfere at all with the woman’s right to choose abortion in the first trimester of pregnancy. The State’s interest in promoting maternal health becomes “compelling” in the second trimester when abortion is no longer
(in his judgment) safer than childbirth. The State’s interest in “potential life” becomes compelling at the beginning of the third trimester, after which it can restrict
abortion, but must include exceptions for cases in which
the life or “health” of the mother was threatened. Id.
The Court did not define what sort of health conditions might be sufficient to warrant such an exception,
10
but the previous discussion of the burdens of unwanted
pregnancy and parenthood are instructive. The majority
opinion makes note of not just physical and mental health
concerns associated with the pregnancy, but adverse effects of various kinds subsequent to the child’s birth, including “a distressful life and future,” mental and physical health “taxed by childcare,” “distress, for all concerned, associated with the unwanted child,” the problem
of bringing an additional child into a family unwilling or
unable to care for it, and the “stigma of unwed motherhood.” Roe, 410 U.S. at 153. In the companion case, Doe
v. Bolton, which the Court said “must be read together”
with Roe, the Court articulated additional factors relevant to medical judgment regarding health concerns, including “physical, emotional, psychological, familial, and
the woman’s age.” 410 U.S. 179, 191–92 (1973). In this
way, Justice Blackmun’s conception of health (triggering
an exception to third trimester abortion restrictions) is
capacious to the point of effectively nullifying any restriction, since it depends on the abortion doctor’s definition of well-being.
2. Put bluntly, Roe and Doe were breathtaking departures from the text, history, and tradition of the U.S.
Constitution. First, and most damning, neither the framers of the Fourteenth Amendment, the States that ratified it, nor any member of the American public at that
time with knowledge of its contents could have intended
or understood that the Amendment precluded states
from protecting unborn children or otherwise legally
proscribing abortion. To the contrary, in the year it was
ratified (1868), thirty of thirty-seven states explicitly
criminalized abortion by statute. See Dellapenna, Dispelling the Myths of Abortion History, supra, at 315. Moreover, and contrary to the assertions of Justice Blackmun
11
in the majority opinion, abortion was a longstanding
common-law crime (both in Colonial America and in England) prior to the codification of these laws in the nineteenth century. See, e.g., Keown, supra, at 11 (“the common law consistently prohibited abortion; the early common law from fetal formation, the later from quickening.”). The majority of American laws codifying abortion
at the time of the Fourteenth Amendment’s ratification—27 of 30 states—prohibited abortion before and after quickening. Id. at 27. No one suggested at the time
that the Fourteenth Amendment nullified or even modified these laws. To the contrary, four months after ratification, the Ohio Legislature passed a law criminalizing
abortion from the moment of conception, which its Senate Committee on Criminal Abortion equated with “child
murder.” Snead, supra, at 117.
In short, until Roe, no serious legal authority suggested that the Fourteenth Amendment created a right
to abortion. Some jurists, including the iconic Judge
Henry Friendly, concluded that even if there is a general
right to privacy in the Constitution, it does not include
abortion. See A. Raymond Randolph, Before Roe v.
Wade: Judge Friendly’s Draft Abortion Opinion, 29
Harv. J.L. & Pub. Pol’y 1037 (2006).
3. The absurdity of Roe’s reasoning becomes even
more apparent when one considers the complexity of the
trimester framework. According to the majority’s argument, the Due Process Clause does not only imply a right
to privacy that includes abortion. It also requires a byzantine sliding-scale framework that continually recalibrates the balance between a woman’s right to reproductive autonomy versus the State’s interest in maternal
health and in protecting prenatal human life. Moreover,
the majority’s argument depends on assertions about the
12
relative safety of abortion that were not presented (much
less demonstrated) at trial and that have been forcefully
challenged in subsequent studies. 11
It is not surprising, therefore, that commentators of
all ideological stripes have criticized Roe v. Wade as
uniquely badly reasoned and disconnected from the Constitution. 12 John Hart Ely, who was a supporter of abortion rights as a matter of legislative policy, wrote that
Roe “was not constitutional law and gives almost no
sense of an obligation to try to be.” John Hart Ely, The
Wages of Crying Wolf: A Comment on Roe v. Wade, 82
Yale L.J. 920, 947 (1973). He continued:
What is frightening about Roe is that this superprotected right is not inferable from the language
of the Constitution, the framers’ thinking respecting the specific problem in issue, any general
value derivable from the provisions they included,
or the nation’s governmental structure. Nor is it
explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis
the interest that legislatively prevailed over
it. . . . At times the inferences the Court has
See, e.g., Byron Calhoun, The Maternal Mortality Myth In
the Context of Legalized Abortion, 80 Linacre Q. 264, 264–76 (2013)
(arguing, for example, that the claim that “the risk of death associated with childbirth is fourteen times higher than with abortion” is
“unsupported by the literature and there is no scientific basis to support it.”).
12
Journalist Tim Carney of the Washington Examiner aggregated several quotes in this regard from prominent progressive legal figures. Timothy P. Carney, Honest pro-choicers admit Roe v.
Wade was a horrible decision, Wash. Exam’r, Jan. 22, 2011,
https://www.washingtonexaminer.com/honest-pro-choicers-admitroe-v-wade-was-a-horrible-decision.
11
13
drawn from the values the Constitution marks for
special protection have been controversial, even
shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
Id. at 935–37 (emphasis added).
In short, there is no theory of constitutional interpretation respectful of the text, history, or tradition of the
Constitution that can justify the rule and reasoning of
Roe v. Wade.
B. Casey effectively overruled Roe and further
disconnected the abortion jurisprudence of
the Court from the Constitution.
These fundamental errors were not corrected nineteen years later when the Court issued its opinion in Casey, 505 U.S. 833. In a 5-4 decision, the three-judge plurality affirmed what it described as the “essential holding of Roe” for both substantive reasons (relating to the
constitutional right to abortion), and for prudential reasons (concerning the principle of stare decisis and the
Court’s institutional reputation). Id. at 845–46.
Despite its statements to the contrary, it is fair to say
that Casey overruled Roe in nearly every key respect. It
downgraded the right to abortion from “fundamental” to
a protected “liberty interest.” Id. at 876. Accordingly, it
repudiated the “strict scrutiny” standard of review for
evaluating abortion restrictions, as required by Roe, and
abandoned the trimester framework. Id. at 873. Instead,
it provided that prior to viability, states may not impose
an “undue burden,” where the law’s “purpose or effect is
to place a substantial obstacle” in the way of a woman
seeking a previability abortion, or to deprive her of “the
ultimate decision to terminate her pregnancy” up to the
14
point of fetal viability. Id. at 877. After viability, the State
is free to prohibit abortion, so long as it includes exceptions for the life or health of the mother. Id. at 879. 13
Despite these dramatic changes, the Court’s decision
in Casey did not succeed in grounding its rule and reasoning in the text, history, or tradition of the Constitution. To the contrary, it doubled down on Roe’s freewheeling derivation of a constitutional right merely from
its own normative balancing of the goods of (1) a woman’s
freedom to make intimate, personal, and self-defining reproductive choices that also enable her to participate
equally in the economic and social life of the nation, versus (2) the State’s interest in defending prenatal life, defending the integrity of the medical profession, and promoting respect for life more generally. 14 In short, Casey
fully embraced Roe’s method of constitutionally untethered philosophizing and wholesale legislation from the
bench. Again, to borrow a recent phrase from Chief Justice Roberts, the Court’s reasoning in Casey theorized
the right to abortion from its own “weigh[ing] the State’s
interests in ‘protecting the potentiality of human life’ and
the health of the woman, on the one hand, against the
woman’s liberty interest in defining her ‘own concept of
Casey did not, however, modify the overbroad definition of
“health” for these purposes set forth in Roe and Doe. Instead, the
Court directly quoted the language from Roe asserting that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Casey, 505 U.S. at 879 (quoting Roe, 410 U.S. at 164–65).
14
See Snead, supra, at 142–44 (quoting Casey, 505 U.S. at 846–
53).
13
15
existence, of meaning, of the universe, and of the mystery of human life on the other.” June Med., 140 S. Ct. at
2136 (Roberts, C.J., concurring in judgment) (quoting
Casey, 505 U.S. at 851). Whatever this process might be,
it is not constitutional interpretation. And, as Chief Justice Roberts further noted, “there is no plausible sense
in which anyone, let alone this Court, could objectively
assign weight to such imponderable values and no meaningful way to compare them if there were.” Id.
C. Precedents following Casey have moved yet
further from the Constitution’s text, history,
and tradition, and have caused more
confusion in the lower federal courts.
After Casey, the two Supreme Court decisions in
2000 and 2007 involving the constitutionality of partialbirth abortion bans did not re-tether the Court’s reasoning to the Constitution, but rather dealt with ancillary
questions associated with the State’s authority to prohibit a particularly grisly and controversial method of
abortion. See Gonzales, 550 U.S. 124; Stenberg v. Carhart, 530 U.S. 914 (2000). Ultimately, the Court declared
in Gonzales that the government can prohibit such methods of abortion (even without a health exception), so long
as there are alternative, safe methods of abortion available. While this at least had a moderating impact on the
extremism of the Court’s abortion jurisprudence in practice, it did nothing to reconcile it with the Constitution
itself. 15
It is worth noting that in her dissent in Gonzales, Justice Ginsburg invoked yet another normative good (aside from privacy and
liberty) to ground the right to abortion: equality. 550 U.S. at 172
15
16
In 2016, the Court drifted even further away from the
text, history, and tradition of the Constitution in its abortion jurisprudence. In Whole Woman’s Health v. Hellerstedt, the Court retheorized its Casey framework and
adopted an even broader, more open-ended analytic approach, claiming for itself the authority to weigh (without
meaningful deference to legislative factual findings) the
benefits of a challenged law versus its burdens on the
right to abortion. 136 S. Ct. at 2309. The Court concluded
that the Texas law at issue, which aimed at advancing
maternal health by requiring abortion providers to have
admitting privileges at hospitals within a particular geographic radius of the abortion and to comply with strict
regulations for ambulatory surgical centers, was not sufficiently beneficial to justify the limits it imposed on
abortion access. Id.; see also Snead, supra, at 159–63.
A short four years later, in his concurring opinion in
June Medical (the fifth vote in a 5-4 decision), Chief Justice Roberts rejected the reasoning in Hellerstedt as inconsistent with Casey and articulated his own understanding of what the latter required. 140 S. Ct. at 2133
(Roberts, C.J., concurring in judgment). He was, however, careful to note that he was merely applying the
precedent and not re-evaluating its constitutional validity and thus, a fortiori, not reaffirming it. Id. Chief Justice Roberts read Casey as simply asking whether a challenged limitation is an “undue burden” or “substantial
obstacle” to a woman seeking an abortion prior to viability. Id. at 2135. If not, then the challenged law will survive so long as it advances a legitimate state interest via
(Ginsburg, J, dissenting). That is, she argued that abortion is a necessary mechanism to secure a woman’s participation in the economic
and social life of the community on an equal footing with men.
17
rational means—a very low bar known as the “rational
basis test” that states nearly always satisfy. Id. Chief
Justice Roberts concluded, however, that stare decisis
required the invalidation of the law at issue because it
was “nearly identical” to the law struck down in Hellerstedt a mere four years earlier. Id. at 2133. 16
Thus, as it currently stands, Casey, the controlling legal authority for the law of abortion in America, appears
to create an insuperable right to choose abortion prior to
viability. This implicit right, it would seem, is stronger
and more inviolable than any enumerated right in the
Constitution. After viability, the State’s law must yield
whenever the abortion provider invokes any aspect of
what he considers a woman’s well-being (including “familial” interests) to justify an exemption. It is thus unsurprising that the Court has never upheld any ban on
abortion as such, and has only permitted ancillary limits
such as informed consent, parental involvement (with judicial bypass), waiting periods, and restrictions on especially controversial methods of abortion.
In short, the story of American abortion jurisprudence is a tortured narrative of successive failed attempts to justify the invention of a near-absolute right to
abortion that is not warranted by the U.S. Constitution.
Despite decades of trying, the Court has never produced
a coherent defense of this naked power grab, nor has it
Lower federal courts have disagreed as to whether Chief Justice Roberts’ concurrence constitutes the binding precedent of the
Court. Compare EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 433–34 (6th Cir. 2020) and Hopkins v. Jegley,
968 F.3d 912, 915 (8th Cir. 2020) with Whole Woman’s Health v.
Paxton, 978 F.3d 896, 903–04 (5th Cir. 2020), reh’g en banc granted,
opinion vacated, 978 F.3d 974 (5th Cir. 2020) and Planned
Parenthood of Ind. and Ky. v. Box, 991 F.3d 740, 752 (7th Cir. 2021).
16
18
relinquished its grip on its self-proclaimed authority to
be the ultimate arbiter of abortion regulation in America.
It should take the opportunity to do so now.
II. Principles of Stare Decisis Counsel Overruling
the Precedents That Comprise American
Abortion Jurisprudence.
The Court’s precedents comprising the foundation of
its abortion jurisprudence (e.g., Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey) were not merely
wrongly decided, but uniquely, historically, and notoriously badly reasoned. Principles of stare decisis do not
counsel keeping them in place in spite of this. Even for
those Justices who regard stare decisis as part of the “judicial power” grounded in Article III of the Constitution,
the doctrine is no obstacle to dismantling the Court’s
misguided and destructive jurisprudence. To the contrary, fidelity to the very goods served by stare decisis—
promoting “the evenhanded, predictable, and consistent
development of legal principles,” fostering “reliance on
judicial decisions,” and contributing “to the actual and
perceived integrity of the judicial process”—impels the
Court to finally expunge these damaging precedents
from the law. Payne v. Tennessee, 501 U.S. 808, 827
(1991).
Stare decisis invites Justices of this Court to consider
a variety of factors prior to overruling a prior precedent
that they deem to be wrongly decided. 17 It is not, however, an “inexorable command” as this Court has stated
See, e.g., June Med., 140 S. Ct. at 2134 (Roberts, C.J., concurring in judgment) (“The Court accordingly considers additional factors before overruling a precedent, such as its administrability, its
fit with subsequent factual and legal developments, and the reliance
17
19
many times. See, e.g., Casey, 505 U.S. at 854. Indeed, the
doctrine is “at its weakest when [the Court] interpret[s]
the Constitution,” as precedential errors in this domain
are nearly impossible for the political branches to remedy. Knick, 139 S. Ct. at 2177. As Justice Frankfurter
once said, “Wisdom too often never comes, and so one
ought not to reject it merely because it comes late.”
Henslee v. Union Planters Nat’l Bank & Trust Co., 355
U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
In Ramos v. Louisiana, Justice Kavanaugh provided
a useful roadmap for the application of stare decisis principles. Noting that the Court requires a “special justification” to overrule an erroneous precedent beyond the
mere belief that it was “wrongly decided” in the first instance, he enumerated “three broad considerations” to
determine whether such a special justification is present.
140 S. Ct. at 1414 (Kavanaugh, J., concurring in part).
First, was the prior decision not merely wrong but
“grievously or egregiously wrong,” including “the quality of the precedent’s reasoning, consistency and coherence with other decisions, changed law, changed facts,
interests that the precedent has engendered.”); Ramos, 140 S. Ct.
at 1414 (Kavanaugh, J., concurring in part) (“The stare decisis factors identified by the Court in its past cases include: the quality of
the precedent’s reasoning; the precedent’s consistency and coherence with previous or subsequent decisions; changed law since the
prior decision; changed facts since the prior decision; the workability of the precedent; the reliance interests of those who have relied
on the precedent; and the age of the precedent.”); id. at 1405 (Gorsuch, J., for the Court) (“To balance these considerations, when it
revisits a precedent this Court has traditionally considered the quality of the decision’s reasoning; its consistency with related decisions;
legal developments since the decision; and reliance on the decision.”) (citation omitted).
20
and workability”? Id. at 1414–15. Next, “has the prior decision caused significant negative jurisprudential or realworld consequences,” including the “real-world effects
on the citizenry, not just its effects on the law and the
legal system”? Id. at 1415. Third and finally, “would
overruling the prior decision unduly upset reliance interests?” Id.
1. Contrary to the plurality’s reasoning in Casey, all
of these factors counsel overruling the precedents that
comprise current abortion jurisprudence. As explained
above, as a matter of constitutional interpretation, Roe
and Casey are not merely mistaken, but “grievously” and
“egregiously” so. Moreover, the Court’s constantly shifting rationales and standards, along with the general
vagueness of the concept of “undue burden,” leave state
legislatures with little guidance as to what types of restrictions will be deemed valid. Indeed, as Justice
Thomas noted in his dissent in June Medical, “the fact
that no five Justices can agree on the proper interpretation of our [abortion] precedents today evinces that our
abortion jurisprudence remains in a state of utter entropy.” 140 S. Ct. at 2152 (Thomas, J., dissenting). Lawmakers are left with the sole option of passing a restriction or regulation, and immediately litigating its
constitutionality all the way to the Supreme Court to
learn whether it passes constitutional muster. As Judge
Easterbrook recently complained,
The “undue burden” approach announced in
Planned Parenthood of Southeastern Pennsylvania v. Casey does not call on a court of appeals to
interpret a text. Nor does it produce a result
through interpretation of the Supreme Court’s
opinions. How much burden is “undue” is a matter
21
of judgment. . . . Only the Justices, the proprietors
of the undue-burden standard, can apply it to a
new category of statute . . .
Planned Parenthood of Ind. & Ky., Inc. v. Box, 949 F.3d
997, 999 (7th Cir. 2019) (Easterbrook, J., concurring in
the denial of rehearing en banc). This is now standard
practice in every State that seeks to even modestly limit
abortion. Because of the confusion, lower courts have
even struck down laws similar to laws this Court has already upheld. See Planned Parenthood of Ind. & Ky.,
Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d
809 (7th Cir. 2018), cert. granted, judgment vacated sub
nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 141
S. Ct. 184 (2020) (ultrasound and 18-hour waiting period); Planned Parenthood of Ind. & Ky., Inc. v. Adams,
937 F.3d 973 (7th Cir. 2019), cert. granted, judgment vacated sub nom. Box v. Planned Parenthood of Ind. &
Ky., Inc., 141 S. Ct. 187 (2020) (parental consent); Bristol
Reg’l Women’s Ctr., P.C. v. Slatery, 994 F.3d 774 (6th
Cir. 2021) (48-hour waiting period); Falls Church Med.
Ctr., LLC v. Oliver, 412 F. Supp. 3d. 668 (E.D. Va. 2019)
(ambulatory surgical center requirement for second-trimester abortions).
But this lack of workability is an inexorable consequence of the Court’s self-proclaimed, but constitutionally unwarranted, role as the nation’s “ex officio medical
board with powers to approve or disapprove medical and
operative practices and standards throughout the United
States.” Akron, 462 U.S. at 456 (O’Connor, J., dissenting). The Court lacks the constitutional authority and institutional competence for such a role.
22
2. Roe and Casey have had both adverse jurisprudential effects and grave “real-world consequences.” Ramos, 140 S. Ct. at 1415 (Kavanaugh, J., concurring in
part). Justice Scalia famously wrote that “no legal rule
or doctrine is safe from ad hoc nullification by this Court
when an occasion for its application arises in a case”
about abortion. Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753, 785 (1994) (Scalia, J. concurring in the judgment in part and dissenting in part). Examples of the
“abortion exception” to the usual rules are many. See,
e.g., Stenberg, 530 U.S. at 954 (Scalia, J., dissenting) (canons of statutory interpretation); Hellerstedt, 136 S. Ct. at
2330 (2016) (Alito, J., dissenting) (rules of civil procedure); Hill v. Colorado, 530 U.S. 703, 742–65 (2000)
(Scalia, J., dissenting) (First Amendment); June Med.,
140 S. Ct. at 2142 (Thomas, J. dissenting) (Article III
standing).
The “real-world effects on the citizenry” of Roe and
Casey have been staggering and devastating. Ramos,
140 S. Ct. at 1415 (Kavanaugh, J., concurring in part).
First, they have nullified the laws of every State seeking
to offer meaningful protections to human beings in utero
from the lethal violence of abortion. Since 1973, the number of abortions in the United States has exceeded 62
million. 18 The Court’s abortion jurisprudence has made
the United States one of only a handful of countries in
the world that allows elective abortions after twenty
weeks gestation. 19
Nat’l Right to Life, Abortion Statistics: United States Data
and Trends, https://www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf, (relying on adjusted data from the Guttmacher Institute, former research arm of Planned Parenthood).
19
See, e.g., Michelle Ye Hee Lee, Is the United States One of
Seven Countries that “Allows Elective Abortions After Twenty
18
23
America’s abortion jurisprudence has likewise
gravely damaged our electoral politics (especially elections for the U.S. Presidency and the Senate), making it
a bitter and polarized zero-sum contest for control of the
Supreme Court because of abortion. Supreme Court confirmation hearings have likewise devolved into a toxic
bloodsport. This does not appear to be the case in other
nations around the world that have been allowed to govern themselves on the question of abortion through democratic deliberation and compromise rather than having
the matter usurped by their Court of last resort.
3. Casey’s claim that overturning Roe would cause
intolerable disruption in American society because for
decades of “economic and social developments, people
have organized intimate relationships and made choices
that define their views of themselves and their places in
society, in reliance on the availability of abortion in event
that contraception should fail,” Casey, 505 U.S. at 856, is
conclusory, unproven, and appears to be wrong on its
face. First, and most obvious, as noted by the plurality in
Casey, “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” Casey, 505 U.S. at 856. Second,
Casey itself radically reconfigured the Court’s rule and
rationale in Roe and purported to open the door to increased, previously forbidden, types of state abortion
regulations. Third, and most important, the plurality
cited no authoritative empirical source for its conclusory
claims about abortion being the key to women’s flourishing and equality. In making this assertion, Casey ignored
a host of legal and sociological developments aimed at
Weeks of Pregnancy?”, Wash. Post, Oct. 9, 2017 (fact check rating
this statement as “true”).
24
providing women with protection against discrimination
and offering more opportunities for economic and social
freedom and equality. 20 All States cover the expenses of
pregnancy and childbirth through Medicaid, 21 and all
States provide enforceable child-support requirements
for delinquent fathers. 22 At the same time, the Casey plurality ignores that the abortion license has put women at
risk of bearing the burden of unplanned pregnancy
alone, since it vests decision-making authority in her
alone.
Casey was also mistaken in asserting that the “central holding of Roe” was deeply rooted in American culture and that Americans have “ordered their thinking
and living around [it].” 505 U.S. at 856. This conclusory
and unfounded claim is belied by the fact that legislatures around the country (including in Mississippi) have,
since 1973, continuously passed laws that directly conflict with this Court’s abortion jurisprudence. It is also
undermined by the fact that the abortion issue is much
less contentious in countries where the matter has been
left up to the legislative branch. Cf. Nguyen, supra.
Finally, the Casey plurality was mistaken in suggesting that undoing the Court’s abortion jurisprudence
See, e.g., 42 U.S.C. § 2000e(k) (protecting women in the workplace from pregnancy and sex discrimination).
21
See Kathy Gifford, et al., Medicaid Coverage of Pregnancy
and Perinatal Benefits: Results from a State Survey, KFF (Apr. 27,
2017), https://kff.org/womens-health-policy/report/medicaid-coverage-of-pregnancy-and-perinatal-benefits-results-from-a-state-survey/ (“By federal law, all states provide Medicaid coverage for pregnancy-related services to pregnant women with incomes up to 133%
of the federal poverty line (FPL) and cover them up to 60 days postpartum.”).
22
See 18 U.S.C. § 228 (making the willful failure to pay child
support a crime).
20
25
would cause catastrophic damage to the reputation of the
Court. To the contrary, the Court’s reputation for integrity is enhanced when it remains faithful to Constitution
regardless of the political consequences. Its greatest moment thus far was arguably when it followed this pathway in Brown v. Board of Education, 347 U.S. 483 (1954).
Regardless of the political blowback, the Court repudiated Plessy v. Ferguson’s noxious doctrine of “separate
but equal” discrimination despite the concern that it
would disrupt school districts that relied for nearly 60
years on Plessy’s authorization of racial segregation. Id.
In any event, should the Court overrule Roe and Casey, there is no reason to believe that Americans would
not rise to the challenge of governing themselves on this
vexed and contested matter, just as the vast majority of
citizens around the world have done through their respective political processes. If the public does not approve of the way their State regulates abortion, it can
hold its elected representatives accountable.
4. The Court may be tempted, in the name of stare
decisis, to repeat the errors of the past and reinvent Casey both to preserve the right to abortion and uphold
Mississippi’s law this case. It must resist this temptation.
First, it is the opinion of the amici professors that
basic intellectual honesty and integrity requires acknowledging that Casey and the law at issue here are incompatible. Casey forbids legal undue burdens on abortion that deprive a woman of the ultimate authority to
obtain a previability abortion. 505 U.S. at 879. Mississippi’s Gestational Age Act is a categorical ban that applies at 15 weeks’ gestation, which is previability according to Roe and Casey’s standard. The rule announced in
Casey and the challenged law are irreconcilable.
26
Second, reinventing Casey to preserve a right that
lacks any constitutional warrant and that has caused
such damage undermines the commitment to the rule of
law that stare decisis means to serve. On this issue, the
wisdom of Chief Justice Roberts is decisively instructive:
Stare decisis is a doctrine of preservation, not
transformation. It counsels deference to past mistakes, but provides no justification for making
new ones. There is therefore no basis for the
Court to give precedential sway to reasoning that
it has never accepted, simply because that reasoning happens to support a conclusion reached on
different grounds that have since been abandoned
or discredited.
Doing so would undermine the rule-of-law values
that justify stare decisis in the first place. It would
effectively license the Court to invent and adopt
new principles of constitutional law solely for the
purpose of rationalizing its past errors, without a
proper analysis of whether those principles have
merit on their own. This approach would allow the
Court’s past missteps to spawn future mistakes,
undercutting the very rule-of-law values that
stare decisis is designed to protect.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
384 (2010) (Roberts, C.J., concurring).
Stare decisis is thus no bar to overruling the egregiously wrong and damaging precedents that comprise
current American abortion jurisprudence.
27
III. The Court’s Abortion Jurisprudence Grafts On to
American Law a Constitutionally Unwarranted,
False, and Destructive Account of Human
Identity and Flourishing.
American abortion jurisprudence is deeply misguided and dangerous in yet another way. It entrenches
in our nation’s founding document, and by extension, the
laws of our nation, a concept of human identity and flourishing that is false, pernicious, and obstructive of needed
care for vulnerable mothers, babies, and families:
The current law of abortion . . . frames the public
question as a zero-sum conflict between isolated
strangers, one of whom is recognized as a person,
with the other deemed a sub-personal being
whose moral and legal status is contingent upon
the private judgment of others. It offers no comprehensive support for the vulnerable persons involved, including especially the unborn child and
her mother. . . .
In response to the bodily, psychic, and financial
burdens of unwanted pregnancy and parenthood,
American abortion jurisprudence offers nothing
more than the license to terminate the developing
human life in utero . . . . These are the rights and
privileges suited to atomized individual wills who
inhabit a world of strife. They are limited weapons
and tools of rational mastery fit for a lonely, disembodied self to defend and pursue its interests.
They are not well-designed to address the com-
28
plex needs and wants of a community of embodied, vulnerable, and interdependent human persons.
Snead, supra, at 271–72.
The conception of human identity and flourishing as
merely that of an atomized individual will seeking to discover and follow its own interior authentic truths—“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 851—is not required by the Constitution, and is
certainly not consistent with the complexity of lived experience or the rich variety of American attitudes. And
it biases the Court’s analysis to craft a solution for the
abortion issue that is more suitable for an individual
seeking to repel a stranger from intruding into her interests, namely, by conferring a right to use lethal violence.
This may be suitable for adversarial strangers in a world
of strife. Not for a mother and a child in crisis.
Nothing in the Constitution or the Court’s role requires this mis-framing of a complex human context. The
Court has no business in this space. It should remove itself from this domain and allow the American people to
pursue law and policies designed to meet the genuine
needs of all the vulnerable persons involved in these often tragic situations:
For such a community, the anthropology at the
core of these vital conflicts must be augmented to
correspond to the lived reality of embodiment. Issues and laws must be framed according to the
categories of connectivity of the networks of giving and receiving that embodied beings need to
survive and flourish. Reframing abortion as a con-
29
flict involving a mother and her child, thus summoning the support and care of the network in
which both are embedded, including the father,
extended family, community and polity (including
the government itself) opens channels of care,
concern, support, and summons the uncalculated
giving that everyone owes to the mother and her
child, before, during, and after her birth.
Snead, supra, at 273.
It is long past time for the Supreme Court to release
the American people from the constitutionally unwarranted shackles of its abortion jurisprudence. The Court
must overrule Roe v. Wade, Doe v. Bolton, and Planned
Parenthood v. Casey, and restore to the people’s elected
representatives the authority to care rightly for mothers, children, and families.
C O NC LU SIO N
The judgment of the court of appeals should be reversed.
Respectfully submitted.
HEATHER GEBELIN HACKER
Counsel of Record
HACKER STEPHENS LLP
108 Wild Basin Rd., Suite 250
Austin, Texas 78746
heather@hackerstephens.com
(512) 399-3022
JULY 2021
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.