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., 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 Governor Henry McMaster

And Eleven Additional Governors as

Amici Curiae in Support of

Petitioners

____________________

Counsel for Additional

Governors in Appendix

July 29, 2021

Thomas A. Limehouse, Jr.

Chief Legal Counsel

Wm. Grayson Lambert

Senior Legal Counsel

Counsel of Record

OFFICE OF THE GOVERNOR

South Carolina

State House

1100 Gervais Street

Columbia, SC 29201

(803) 734-2100

glambert@governor.sc.gov

Counsel for

Governor McMaster

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I.

As originally understood, the Fourteenth

Amendment does not include the right to

terminate the life of an unborn child.................. 3

II.

In Roe and Casey, the Court upset the

constitutional balance between States

and the Federal Government .............................. 8

A.

The Constitution creates a system of dual

sovereignty................................................... 8

B.

The political branches of the Federal

Government have too often infringed

on the States’ sovereignty ......................... 10

C.

The Court has, occasionally, converted

subjects the Constitution commits to

the States into matters of federal

constitutional law ...................................... 12

III. Leaving abortion regulations to the States

has benefits in addition to being faithful to

the Fourteenth Amendment’s original

understanding ................................................... 13

CONCLUSION .......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n,

576 U.S. 787 (2015) ................................................15

Blatchford v. Native Vill. of Noatak & Circle Vill.,

501 U.S. 775 (1991) ..................................................9

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) ..............................................3

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ..................................................3

District of Columbia v. Heller,

554 U.S. 570 (2008) ..................................................3

Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) ................................................10

Florida v. Jardines,

569 U.S. 1 (2013) ......................................................3

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) ..............................................4

Gamble v. United States,

139 S. Ct. 1960 (2019) ..............................................3

Gregg v. Georgia,

428 U.S. 153 (1976) ................................................14

iii

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................ 2, 10

June Med. Servs. L.L.C. v. Russo,

140 S. Ct. 2103 (2020) ..........................................6, 7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)..................................13

MKB Mgmt. Corp. v. Stenehjem,

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

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................11

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................15

New York v. United States,

505 U.S. 144 (1992) ................................................12

Obergefell v. Hodges,

576 U.S. 644 (2015) ................................................15

Oregon v. Ice,

555 U.S. 160 (2009) ................................................15

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ........................................ passim

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021) (en banc) ....................7

iv

Printz v. United States,

521 U.S. 898 (1997) .......................................... 10, 11

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ..............................................3

Roe v. Wade,

414 U.S. 113 (1973) ........................................ passim

Schuette v. BAMN,

572 U.S. 291 (2014) ................................................15

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ....................................................9

Texas v. White,

74 U.S. 700 (1868) ..................................................10

United States v. Lopez,

514 U.S. 549 (1995) ................................................11

United States v. Morrison,

529 U.S. 598 (2000) ................................................11

W. Ala. Women’s Ctr. v. Williamson,

900 F.3d 1310 (11th Cir. 2018) ................................7

Whole Woman’s Health v. Smith,

896 F.3d 362 (5th Cir. 2018) ....................................8

Wickard v. Filburn,

317 U.S. 111 (1942) ................................................10

v

Constitutional Provisions

S.C. Const. art. IV, § 15 ...............................................1

S.C. Const. art. VI, § 5 .................................................1

U.S. Const. amend. X ..................................................9

U.S. Const. amend. XIV, § 1........................................5

U.S. Const. art. I, § 2 ...................................................9

U.S. Const. art. I, § 8 ...................................................9

U.S. Const. art. III, § 2 ..............................................13

U.S. Const. art. IV, § 1 ................................................9

U.S. Const. art. IV, § 3 ................................................9

U.S. Const. art. V ........................................................9

Statutes

1883 S.C. Acts No. 354, § 1 .........................................6

2021 S.C. Acts No. 1 ....................................................1

Ala. Rev. Code § 3605 (1867).......................................5

Ark. Rev. Stat., ch. 44, div. III, Art. II, § 6 (1838)......5

Cal. Stat., ch. 521, § 45, p. 588 (1861) ........................5

vi

Colo. (Terr.) Rev. Stat. § 42 (1868) .............................5

Conn. Gen. Stat., Tit. 12, §§ 22–24 (1861)..................5

Fla. Acts 1st Sess., ch. 1637, subch. III, §§ 10, 11,

ch. 8, §§ 9, 10 (1868) .................................................5

Ga. Pen. Code, 4th Div., § 20 (1833) ...........................5

Hawaii Pen. Code, c. 12, §§ 1, 2, 3 (1850) ...................5

Ill. Stat., ch. 30, § 47 (1868) ........................................5

Ind. Laws ch. LXXXI, § 2 (1859) .................................5

Iowa Rev. Gen. Stat., ch. 165, § 4221 (1860) ..............5

Kan. Gen. Stat., ch. 31, §§ 14, 15, 44 (1868)...............6

La. Rev. Stat., Crimes & Offenses § 24 (1856) ...........6

Mass. Gen. Stat., ch. 165, § 9 (1860)...........................6

Md. Laws ch. 179, § 2, p. 315 (1868) ...........................6

Me. Rev. Stat., Tit. XI, ch. 124, § 8 (1857) ..................6

Mich. Rev. Stat., Tit. XXX, ch. 153, §§ 32, 33, 34

(1846) ........................................................................6

Miss. Rev. Code, ch. LXIV, Arts. 172, 173 (1857) ......6

Mo. Rev. Stat., Art. II, §§ 9, 10, 36 (1835) ..................6

vii

N.H. Laws ch. 743, §§ 1, 2, p. 708 (1848)....................6

N.J. Laws, pp. 266–267 (1849) ....................................6

N.Y. Laws ch. 22, § 1, p. 19 (1846) ..............................6

Ore. Gen. Laws, Crim. Code, ch. XLIII, § 509 (1845–

1864) .........................................................................6

Pa. Laws no. 374, §§ 87, 88, 89, pp. 404–05 (1860) ....6

S.C. Criminal Code § 122 (1893) .................................6

Terr. of Ariz., Howell Code, ch. 10, § 45 (1865) ..........5

Terr. of Idaho Laws, Crimes & Punishments § 42

(1864) ........................................................................5

Terr. of Minn. Rev. Stat., ch. 100, §§ 10, 11 (1851) ....6

Terr. of Mont. Laws, Criminal Practice Acts § 41

(1864) ........................................................................6

Terr. of N.M. Laws ch. 3, §§ 10, 11, p. 88 (1854) ........6

Terr. of Neb. Rev. Stat., Crim. Code § 42 (1866) ........6

Terr. of Nev. Laws ch. 28, § 42 (1861) ........................6

Terr. of Wash. Stat., ch. II, §§ 37, 38 (1854) ...............6

Tex. Gen. Stat. Dig., Penal Code, ch. VII, Arts. 531–

36 (1859) ...................................................................6

viii

Va. Acts, Tit. II, ch. 3, § 9, p. 96 (1848) ......................6

Vt. Acts & Resolves no. 57, §§ 1, 3, pp. 64–66

(1867) ........................................................................6

Wis. Rev. Stat., ch. 164, §§ 10, 11, ch. 169, §§ 58, 59

(1858) ........................................................................6

Other Authorities

Br. of Pet’rs, No. 11-398, Dep’t of Health and Human

Servs. v. Florida (U.S. Jan. 6, 2012) ......................11

John Hart Ely, The Wages of Crying Wolf: A

Comment on Roe v. Wade, 82 Yale L.J. 920

(1973) ........................................................................5

John Locke, Second Treatise of Government,

reprinted in Political Writings (David Wootton ed.,

Hackett Publishing Co. 1993) (1681).....................14

The Federalist No. 10 (J. Madison) (C. Rossiter & C.

Kelser eds. 2003) ......................................................8

The Federalist No. 39 (J. Madison) (C. Rossiter & C.

Kelser eds. 2003) ......................................................9

The Federalist No. 45 (J. Madison) (C. Rossiter & C.

Kelser eds. 2003) ......................................................9

The Federalist No. 78 (A. Hamilton) (C. Rossiter & C.

Kelser eds. 2003) ....................................................10

1

INTEREST OF AMICI CURIAE

Henry McMaster is Governor of the State of

South Carolina. 1 Governor McMaster has sworn to

“preserve, protect, and defend” both the South Carolina Constitution and the United States Constitution.

S.C. Const. art. VI, § 5. As Governor, he is responsible

for ensuring that South Carolina law is “faithfully executed.” Id. art. IV, § 15. This oath and obligation compel Governor McMaster to stand up for the constitutional principles on which our Republic is founded,

particularly the relationship between the States and

the Federal Government, and to assert South Carolina’s sovereign interests and authority to adopt and

enforce its laws.

Earlier this year, Governor McMaster signed into

law the South Carolina Fetal Heartbeat and Protection from Abortion Act. See 2021 S.C. Acts No. 1. After

several abortionists challenged the constitutionality

of that law in federal court and the United States District Court for the District of South Carolina restrained the State from enforcing it, Governor McMaster intervened to defend the Act. The role of federal

courts in passing upon the constitutionality of state

laws regulating abortion is thus of particular importance to Governor McMaster.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amici curiae and their

counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to Supreme Court Rule

37.3, counsel of record for all parties have consented to this filing

via blanket consents filed with the Clerk’s Office on June 1, 2021

(Respondents) and June 9, 2021 (Petitioners).

2

Other Governors (see Appendix for full list of

amici curiae) have taken similar oaths. And they have

supported similar prolife legislation. Like Governor

McMaster, they have a strong interest in seeing the

Constitution faithfully interpreted and the proper

roles of the Federal Government and the States upheld.

SUMMARY OF ARGUMENT

“As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the

States and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). Every schoolchild may

learn this fundamental principle, but unfortunately,

the Federal Government does not always abide by it.

Although intrusions into State sovereignty typically

come from the Federal Government’s political

branches, they have at times come from the Federal

Judiciary (including this Court), too.

In perhaps no area of law is that judicial intrusion into State sovereignty greater than abortion. Justices on this Court and circuit court judges have consistently recognized that the original understanding

of the Fourteenth Amendment’s Due Process Clause

does not include any right to terminate the life of an

unborn child. Indeed, none of this Court’s major abortion decisions—including Roe v. Wade, 414 U.S. 113

(1973), and Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992)—claims otherwise. Nevertheless, half a century ago, this Court

(without any consideration of the original meaning of

the Fourteenth Amendment) found a constitutional

right to abortion somewhere in the Constitution.

3

The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign

sphere of the States. Returning to the States the plenary authority to regulate abortion without federal interference would restore the proper (i.e., constitutional) relationship between the States and the Federal Government. It also would produce positive results, including letting the democratic process work as

intended, deescalating tensions on this divisive topic,

and allowing the States to serve as laboratories of democracy for establishing and implementing suitable

abortion regulations based on the latest scientific

knowledge.

ARGUMENT

I.

As originally understood, the Fourteenth

Amendment does not include the right to

terminate the life of an unborn child.

1. This Court has repeatedly made clear that constitutional provisions must be given the meaning they

were understood to have at the time they were ratified. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390

(2020) (Sixth Amendment right to jury trial); Gamble

v. United States, 139 S. Ct. 1960 (2019) (Fifth Amendment protection from double jeopardy); Bucklew v.

Precythe, 139 S. Ct. 1112 (2019) (Eighth Amendment

protection from cruel and unusual punishments);

Florida v. Jardines, 569 U.S. 1 (2013) (Fourth Amendment right to be free from unreasonable searches);

Citizens United v. Fed. Election Comm’n, 558 U.S. 310

(2010) (First Amendment right to free speech); District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment right to keep and bear arms). This

approach to constitutional interpretation requires

4

reviewing the text and historical context to determine

how a constitutional provision was originally understood. See, e.g., Fulton v. City of Philadelphia, 141 S.

Ct. 1868, 1894, 1898 (2021) (Alito, J., concurring in the

judgment) (examining the original understanding of

the Free Exercise Clause).

2. The Court in Casey admittedly did not apply

this approach to the Fourteenth Amendment. The plurality in that case expressly rejected the idea that the

Fourteenth Amendment must be interpreted based on

its original public meaning, insisting such an approach was “inconsistent” with this Court’s case law.2

Casey, 505 U.S. at 847 (plurality opinion). Such an explicit rejection of the Court’s now well-accepted interpretive theory cannot stand. The Court should therefore reexamine Casey’s central tenet that the Fourteenth Amendment’s Due Process Clause protects a

“woman’s decision to terminate her pregnancy” under

the proper interpretive framework. Id. at 846.

The argument that Casey is inconsistent with the

original understanding of the Due Process Clause has

already been laid out by Justices of this Court and

2 The Court in Roe consciously did not specify whether the

right to an abortion was found in—or more accurately, inferred

from—the Fourteenth Amendment or the Ninth Amendment.

See 410 U.S. at 153. Given this lack of a clearly identified constitutional anchor, it is no surprise that Roe, like Casey, lacked any

meaningful analysis of the original understanding of the Constitution. Given the Casey plurality’s unwillingness to engage with

the text or original understanding of the Fourteenth Amendment

in that case, it is also not surprising that the plurality did not

defend Roe as being “correct as an original matter.” Casey, 505

U.S. at 953 (Rehnquist, C.J., concurring in part and dissenting

in part).

5

lower court judges (as well as Petitioners and presumably will be by other amici too). Thus, Governor

McMaster and the other Governors only briefly address this issue.

a. Start with the text. The Due Process Clause

provides, “[N]or shall any State deprive any person of

life, liberty, or property without due process of law.”

U.S. Const. amend. XIV, § 1. The Due Process Clause

is a mere seventeen words, and it “says absolutely

nothing about” abortion. Casey, 505 U.S. at 980

(Scalia, J., concurring in part and dissenting in part);

see also John Hart Ely, The Wages of Crying Wolf: A

Comment on Roe v. Wade, 82 Yale L.J. 920, 935 (1973)

(a right to abortion “is not inferable from the language

of the Constitution”).

b. Turn now to historical context. A review of the

legal landscape from the late nineteenth century leads

to the same conclusion that the Due Process Clause

does not create or protect a right to abortion. Between

the statutes cited by then-Justice Rehnquist in Roe

and Justice Thomas in June Medical, at least thirtysix States (some of which were still territories or, in

the case of Hawaii, not yet even part of the United

States) had statutes that limited, if not completely

outlawed, abortion when the Fourteenth Amendment

was ratified. 3 See June Med. Servs. L.L.C. v. Russo,

3 See Ala. Rev. Code § 3605 (1867); Terr. of Ariz., Howell

Code, ch. 10, § 45 (1865); Ark. Rev. Stat., ch. 44, div. III, Art. II,

§ 6 (1838); Cal. Stat., ch. 521, § 45, p. 588 (1861); Colo. (Terr.)

Rev. Stat. § 42 (1868); Conn. Gen. Stat., Tit. 12, §§ 22–24 (1861);

Fla. Acts 1st Sess., ch. 1637, subch. III, §§ 10, 11, ch. 8, §§ 9, 10

(1868); Ga. Pen. Code, 4th Div., § 20 (1833); Hawaii Pen. Code, c.

12, §§ 1, 2, 3 (1850); Terr. of Idaho Laws, Crimes & Punishments

§ 42 (1864); Ill. Stat., ch. 30, § 47 (1868); Ind. Laws ch.

6

140 S. Ct. 2103, 2151 n.7 (2020) (Thomas, J., dissenting) (collecting statutes); Roe, 410 U.S. at 175 n.1

(Rehnquist, J., dissenting) (same).

In addition to these three-quarters of States with

statutory abortion regulations in effect in 1868, other

States adopted similar laws shortly after the Fourteenth Amendment’s ratification. South Carolina provides a good example. South Carolina criminalized

abortion in 1883, making it a felony to use any drug

or instrument “to cause or procure the miscarriage or

abortion or premature labor” of a pregnant woman,

unless “necessary to preserve her life.” 1883 S.C. Acts

No. 354, § 1 (codified at S.C. Criminal Code § 122

(1893)). Thus, a decade and a half after the Fourteenth Amendment was ratified, South Carolina made

it illegal to perform virtually all abortions. Had the

original understanding of the Fourteenth Amendment

LXXXI, § 2 (1859); Iowa Rev. Gen. Stat., ch. 165, § 4221 (1860);

Kan. Gen. Stat., ch. 31, §§ 14, 15, 44 (1868); La. Rev. Stat.,

Crimes & Offenses § 24 (1856); Me. Rev. Stat., Tit. XI, ch. 124,

§ 8 (1857); Md. Laws ch. 179, § 2, p. 315 (1868); Mass. Gen. Stat.,

ch. 165, § 9 (1860); Mich. Rev. Stat., Tit. XXX, ch. 153, §§ 32, 33,

34 (1846); Terr. of Minn. Rev. Stat., ch. 100, §§ 10, 11 (1851);

Miss. Rev. Code, ch. LXIV, Arts. 172, 173 (1857); Mo. Rev. Stat.,

Art. II, §§ 9, 10, 36 (1835); Terr. of Mont. Laws, Criminal Practice

Acts § 41 (1864); Terr. of Neb. Rev. Stat., Crim. Code § 42 (1866);

Terr. of Nev. Laws ch. 28, § 42 (1861); N.H. Laws ch. 743, §§ 1, 2,

p. 708 (1848); N.J. Laws, pp. 266–267 (1849); Terr. of N.M. Laws

ch. 3, §§ 10, 11, p. 88 (1854); N.Y. Laws ch. 22, § 1, p. 19 (1846);

Ohio Laws § 2, pp. 135–36 (1867); Ore. Gen. Laws, Crim. Code,

ch. XLIII, § 509 (1845–1864); Pa. Laws no. 374, §§ 87, 88, 89, pp.

404–05 (1860); Tex. Gen. Stat. Dig., Penal Code, ch. VII, Arts.

531–36 (1859); Vt. Acts & Resolves no. 57, §§ 1, 3, pp. 64–66

(1867); Va. Acts, Tit. II, ch. 3, § 9, p. 96 (1848); Terr. of Wash.

Stat., ch. II, §§ 37, 38 (1854); Wis. Rev. Stat., ch. 164, §§ 10, 11,

ch. 169, §§ 58, 59 (1858).

7

been that abortion was generally constitutionally protected, South Carolina would not have enacted, almost

contemporaneously with the Amendment’s ratification, a law directly contrary to that understanding.

Based on this historical record, multiple Justices

have concluded that no one in 1868 could have reasonably believed the Fourteenth Amendment enshrined a

right to abortion. Then-Justice Rehnquist observed

that the idea that the Fourteenth Amendment protected abortion was “completely unknown to the drafters of the Amendment.” Roe, 410 U.S. at 174. Just last

year, Justice Thomas called “the idea that the Framers of the Fourteenth Amendment understood the Due

Process Clause to protect a right to abortion” “farcical.” June Med., 140 S. Ct. at 2151.

Circuit court judges have also noted the disconnect between this Court’s abortion jurisprudence and

the original understanding of the Due Process Clause.

See, e.g., Preterm-Cleveland v. McCloud, 994 F.3d 512,

546 (6th Cir. 2021) (en banc) (Bush, J., concurring)

(“history also raises serious questions as to the correctness of the Supreme Court’s abortion jurisprudence more generally as a matter of the Constitution’s original meaning”); Pet.App. 20a (Ho., J., concurring in the judgment) (“Nothing in the text or original understanding of the Constitution establishes a

right to an abortion. Rather, what distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion from the democratic process established by our Founders—is Supreme Court precedent.”); W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1330 (11th Cir. 2018) (Dubina, J., concurring specially) (agreeing with Justice

8

Thomas that the Court’s “abortion jurisprudence . . .

has no basis in the Constitution”); Whole Woman’s

Health v. Smith, 896 F.3d 362, 376 (5th Cir. 2018) (Ho,

J., concurring) (“It is hard to imagine a better example

of how far we have strayed from the text and original

understanding of the Constitution than this [abortion]

case.”); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768,

773 (8th Cir. 2015) (“good reasons exist for the Court

to reevaluate its [abortion] jurisprudence”).

II.

In Roe and Casey, the Court upset the constitutional balance between States and the

Federal Government.

The misapplication of the Fourteenth Amendment in Roe and Casey is, to be sure, reason enough to

overrule those decisions and return to the original understanding of the Fourteenth Amendment. But the

flaws in those cases have resulted in more than merely

an error in this one area of jurisprudence. These flaws

have also upended the careful balance that the Constitution strikes between the Federal Government

and the States.

A.

The Constitution creates a system of

dual sovereignty.

The Constitution forms “a happy combination” of

the Federal Government and the States. The Federalist No. 10, p. 77 (J. Madison) (C. Rossiter & C. Kelser

eds. 2003). In this scheme, “the States [are to] retain . . . a very extensive portion of active sovereignty”

and “have the advantage of the federal government”

because the powers which “remain in the State governments are numerous and indefinite,” while powers

in the Federal Government are “few and defined.” The

9

Federalist No. 45, pp. 286–89 (J. Madison); see also

The Federalist No. 39, p. 242 (J. Madison) (the Federal

Government’s “jurisdiction extends to certain enumerated objects only,” and the Constitution “leaves to the

several States a residuary and inviolable sovereignty

over all other objects”).

To that end, the Constitution provides numerous

protections for States, in addition to delegating only

specific authority to the Federal Government. See,

e.g., U.S. Const. art. I, § 8 (listing powers granted to

Congress). Consider just a few examples. Every State

“shall have at Least one Representative” in the House.

Id. art. I, § 2. Each State’s acts, records, and judicial

decisions are entitled to “Full Faith and Credit” in

other States. Id. art. IV, § 1. No State is required to

give up any of its territory to form any new State without consent. Id. art. IV, § 3. No State may be “deprived

of its equal Suffrage in the Senate” without consent.

Id. art. V. If these structural protections left any

doubt, the Tenth Amendment removes it: “The powers

not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.” Id. amend.

X.

This Court’s decisions have consistently acknowledged States’ sovereignty. “The Constitution,” the

Court has explained, “specifically recognizes the

States as sovereign entities.” Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 71 n.15 (1996). In other words,

“the States entered the federal system with their sovereignty intact.” Blatchford v. Native Vill. of Noatak

& Circle Vill., 501 U.S. 775, 779 (1991). An “essential

attribute” of Sates’ sovereignty is “that they remain

10

independent and autonomous within their proper

sphere of authority.” Printz v. United States, 521 U.S.

898, 928 (1997); see also Texas v. White, 74 U.S. 700,

725 (1868) (discussing the sovereignty that the States

retained).

This resulted in “a system of dual sovereignty between the States and the Federal Government.” Gregory, 501 U.S. at 457. This system is “a defining feature”—not a vice—“of our Nation’s constitutional

blueprint.” Fed. Mar. Comm’n v. S.C. State Ports

Auth., 535 U.S. 743, 751 (2002).

B.

The political branches of the Federal

Government have too often infringed

on the States’ sovereignty.

Sadly, the Constitution’s balance between the

power of the Federal Government and the States has

not always held, and the Federal Government has encroached repeatedly on the sovereignty of the States.

Certainly, and unsurprisingly, Congress and the Executive (primarily Congress, as Executive overreach

against the States through regulation typically follows legislation) have been the most common culprits

on this front. Cf. The Federalist No. 78, p. 464 (A.

Hamilton) (describing the Judiciary as the “least dangerous” branch).

Congress has often relied on the Commerce

Clause to pass sweeping legislation. Yet even with

this Court having taken a broad 4 view of that power,

e.g., Wickard v. Filburn, 317 U.S. 111 (1942), Congress

4 Too broad, in fact. But the scope of congressional power un-

der the Commerce Clause is a question for another day.

11

nevertheless still goes too far, reaching into areas that

belong to the States. For example, this Court struck

down the Gun-Free School Zones Act because, under

the Federal Government’s argument that crime impacted the economy, “it is difficult to perceive any limitation on federal power, even in areas . . . where

States have historically been sovereign.” United

States v. Lopez, 514 U.S. 549, 564 (1995). The Court

did the same with the Violence Against Women Act

because, whatever the aggregate effect of domestic violence on the economy, allowing Congress to legislate

in that area would permit Congress to control “other

areas of traditional state regulation.” See United

States v. Morrison, 529 U.S. 598, 615 (2000). More recently, a majority of the Court rejected the Federal

Government’s defense of the Affordable Care Act’s individual mandate as a valid exercise of the commerce

power. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. 519, 552–61 (2012) (opinion of Roberts, C.J.); id.

at 649–60 (joint dissent of Scalia, Kennedy, Thomas,

and Alito, JJ.); see also Br. of Pet’rs 21–52, No. 11-398,

Dep’t of Health and Human Servs. v. Florida (U.S.

Jan. 6, 2012) (raising the Commerce Clause as the primary argument in defense of the Affordable Care Act).

Beyond the Commerce Clause, Congress has also

overstepped its constitutional boundaries by trying to

commandeer State officials to carry out specific federal laws—something “provocative of federal-state

conflict.” See Printz, 521 U.S. at 920 (discussing commandeering and the Brady Handgun Violence Prevention Act). Congress has even tried to commandeer

State legislatures and force them to regulate certain

areas, despite the fact that “the Framers explicitly

chose a Constitution that confers upon Congress the

12

power to regulate individuals, not States.” See New

York v. United States, 505 U.S. 144, 166 (1992) (discussing commandeering and the Low-Level Radioactive Waste Policy Amendments Act of 1985).

C.

The Court has, occasionally, converted

subjects the Constitution commits to

the States into matters of federal constitutional law.

Although the Federal Government’s political

branches are typically the ones infringing upon

States’ sovereignty, this Court is not immune from

such mistakes. Indeed, the Court’s decisions in Roe

and Casey are prime examples of invading an area

that has not been committed to the Federal Government and remains reserved to the States.

As discussed already, see supra Part I, the central

tenet of the Court’s abortion jurisprudence is inconsistent with the original understanding of the Fourteenth Amendment. The Fourteenth Amendment has

nothing to do with abortion. Therefore, regulating

abortion is constitutionally committed to the States

(as no other constitutional provision speaks to abortion either).

By holding that the Due Process Clause includes

an implicit right to “terminate [a] pregnancy,” Casey,

505 U.S. at 846 (plurality opinion), the Court took an

issue that had belonged exclusively to the States for

two centuries and judicially created, conferred, and effectively ratified a new constitutional right. No longer

can States regulate abortion as they, through their

peoples’ representatives, deem appropriate. Instead,

their regulation of abortion must fit within the narrow

13

confines that the Court left open to them in Casey.

Just as Congress has gone beyond its constitutional

limits in legislating, the Court strayed beyond the

Constitution in Casey and upset the delicate balance

the Constitution strikes between those issues that are

committed to the Federal Government and those issues that remain reserved to the States.

III. Leaving abortion regulations to the States

has benefits in addition to being faithful to

the Fourteenth Amendment’s original understanding.

That the framers and ratifiers of the Fourteenth

Amendment did not understand the Due Process

Clause to create or protect a right to abortion should

be enough to end the analysis: Casey’s central holding

should be overturned, and the authority to regulate

abortion should be returned to the States. Doing so

would be a proper exercise of this Court’s “judicial

Power” to resolve this “Case[],” U.S. Const. art. III,

§ 2, and consistent with its “duty . . . to say what the

[Fourteenth Amendment] is,” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803).

Nevertheless, it is worth a brief discussion of why

returning abortion regulation to the States is a good

thing (beyond accurately interpreting the Constitution). Abortion has been one of this country’s most divisive issues for the past half century. It was that way

in 1973. This Court in Roe recognized “the sensitive

and emotional nature of the abortion controversy,”

“the vigorous opposing views” on abortion, and “the

deep and seemingly absolute convictions” people held

on the topic. 410 U.S. at 116 (majority opinion). It was

that way in 1992, when this Court in Casey observed

14

that “[m]en and women of good conscience can disagree, and we suppose some always shall disagree,

about the profound moral and spiritual implications of

terminating a pregnancy, even in its earliest stage.”

505 U.S. at 850. And it remains that way today. Leaving this divisive issue to the States provides at least

three benefits.

First, by de-constitutionalizing abortion, the

Court can let democracy work again on this issue. A

State may permit abortion. A State may ban abortion.

A State may chart a middle ground. Whatever a State

decides, that decision will be made “like most important questions in our democracy: by citizens trying

to persuade one another and then voting.” Id. at 979

(Scalia, J., concurring in part and dissenting in part).

Once voters cast their ballots, it is up to a State legislature to decide how the State will regulate abortion

(assuming the State does not address abortion

through constitutional amendment or referendum).

Cf. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion) (“in a democratic society legislatures, not

courts, are constituted to respond to the will and consequently the moral values of the people” (cleaned

up)). And if voters do not like what a legislature does,

then they have democracy’s ultimate check: the ballot

box. After all, majority rule is the bedrock of civil society (at least on any issue not put beyond the ballot box

by the people in a constitution, which abortion has not

been). See John Locke, Second Treatise of Government,

§ 96, p. 310 reprinted in Political Writings (David

Wootton ed., Hackett Publishing Co. 1993) (1681)

(“For when any number of men have, by the consent

of every individual, made a community, they have

thereby made that community one body, with a power

15

to act as one body, which is only by the will and determination of the majority.”).

There is nothing wrong with giving this issue

back to the people. “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent

and rational grounds.” Schuette v. BAMN, 572 U.S.

291, 313 (2014). Keeping the issue from the people is

nothing more than judicial paternalism that “[s]teal[s]

the issue from the people.” Obergefell v. Hodges, 576

U.S. 644, 687 (2015) (Roberts, C.J., dissenting).

Second, de-constitutionalizing abortion should

lower the proverbial temperature in these debates. No

longer would abortion define the confirmation process

for Justices. No longer would the issue dominate presidential campaigns. America is “a heterogeneous society,” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 817 (2015), and allowing

decisions about abortion regulations to be made at the

State level better allows those differing voices to be

heard and to shape policy.

Third, de-constitutionalizing abortion would allow States to explore different approaches to abortion.

This Court has “long recognized the role of the States

as laboratories for devising solutions to difficult legal

problems.” Oregon v. Ice, 555 U.S. 160, 171 (2009).

Giving the States freedom to enact different ideas allows States to see what may work (or not work) for

them and for States to learn from each other, as scientific knowledge of fetal development advances. See

Ariz. State Legislature, 576 U.S. at 817; New State Ice

Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting).

16

*

*

*

For too long, the Federal Government has dived

(not just waded) into issues reserved to the States under the Constitution. Although those forays usually

come from the political branches, they have, on occasion, come from this Court as well. Roe and Casey are

quintessential examples of such misadventures. The

Court should take this opportunity to correct the mistakes in its abortion jurisprudence and recognize that

the text and original understanding of the Fourteenth

Amendment have nothing to do with abortion. Rather

than creating a federal constitutional right, the Court

should leave regulating abortion to the States, where

the people may act through the democratic process.

This Court should hold as much—and in the process,

help restore the constitutional (but currently disrupted) balance between the Federal Government and

the States.

CONCLUSION

For these reasons, the Court should reverse the

judgment of the Fifth Circuit.

17

Respectfully submitted,

Thomas A. Limehouse, Jr.

Chief Legal Counsel

Wm. Grayson Lambert

Senior Legal Counsel

Counsel of Record

OFFICE OF THE GOVERNOR

South Carolina

State House

1100 Gervais Street

Columbia, SC 29201

(803) 734-2100

glambert@governor.sc.gov

Counsel for

Governor McMaster

Counsel for Additional

Governors in Appendix

APPENDIX

1a

APPENDIX

THOSE JOINING IN AMICI CURIAE BRIEF

The following Governors join Governor McMaster in this amici curiae brief:

Governor Kay Ivey of Alabama

William G. Parker, Jr., General Counsel

Governor Douglas A. Ducey of Arizona

Anni Lori Foster, General Counsel

Governor Asa Hutchinson of Arkansas

Governor Ron DeSantis of Florida

James Uthmeier, General Counsel

Governor Brian K. Kemp of Georgia

David B. Dove, Executive Counsel

Governor Brad Little of Idaho

Brady Hall, General Counsel

Governor Kim Reynolds of Iowa

Michael Boal, Senior Legal Counsel

Governor Michael L. Parson of Missouri

Andrew Bailey, General Counsel

Governor Greg Gianforte of Montana

Anita Milanovich, General Counsel

Governor J. Kevin Stitt of Oklahoma

Jason Reese, General Counsel

2a

Governor Greg Abbott of Texas

Jeff Oldham, General Counsel