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

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No. 19-1392

IN THE

Supreme Court of the United States

THOMAS E. DOBBS, M.D., M.P.H., IN HIS OFFICIAL

CAPACITY AS STATE HEALTH OFFICER OF THE MISSISSIPPI

DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

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 AMERICANS UNITED FOR LIFE AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

CATHERINE GLENN FOSTER

STEVEN H. ADEN

CLARKE D. FORSYTHE

Counsel of Record

KATIE GLENN

NATALIE HEJRAN

AMERICANS UNITED FOR LIFE

1150 Connecticut Ave., NW Ste. 500

Washington, D.C. 20036

Clarke.Forsythe@aul.org

Tel.: (202) 741-4917

July 29, 2021

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE............................ 1

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

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

PRECEDENT IS ONLY ENTITLED TO STARE

DECISIS RESPECT IF IT IS SETTLED ................. 3

II.

THE COURT HAS TRADITIONALLY LOOKED

TO SEVERAL FACTORS TO DETERMINE

WHETHER PRECEDENT IS SETTLED. ................. 6

III.

ROE V. WADE IS RADICALLY UNSETTLED. ........ 8

IV.

PLANNED PARENTHOOD V. CASEY

FAILED TO SETTLE ROE V. WADE AND

THUS NEITHER IS ENTITLED TO STARE

DECISIS RESPECT. ......................................... 21

CONCLUSION ......................................................... 29

TABLE OF AUTHORITIES

Cases

Page(s)

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................ 5, 18, 28

Agostini v. Felton,

521 U.S. 203 (1997) ............................................ 7

Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1983) .................................. passim

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019) .............................. 4, 6, 11

Arizona v. Gant,

556 U.S. 332 (2009) .............................. 4, 7, 8, 28

Associated Press v. Nat’l Lab. Rels. Bd.,

301 U.S. 103 (1937) .......................................... 13

Bristol Reg’l Women’s Ctr., P.C. v. Slatery,

988 F.3d 329 (6th Cir. 2021)............................ 26

Carey v. Population Servs. Int’l.,

431 U.S. 678 (1977) ............................................ 2

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ............................ 7, 8, 23, 24

City of Hammond v. Schappi Bus Line,

275 U.S. 164 (1927) .......................................... 13

iii

City L. A. v. Patel,

135 S. Ct. 2443 (2015) ...................................... 14

Colautti v. Franklin,

439 U.S. 379 (1979) .................................... 14, 15

Comm’r of Internal Revenue v. Fink,

483 U.S. 89 (1987) ............................................ 28

Connecticut v. Menillo,

423 U.S. 9 (1975) .............................................. 14

Continental T.V. Inc. v. GTE Sylvania, Inc.,

433 U.S. 36 (1977) .............................................. 6

CSX Transp., Inc. v. McBride,

564 U.S. 685 (2011) ............................................ 4

Davis v. United States,

564 U.S. 229 (2011) .......................................... 28

Dickerson v. United States,

530 U.S. 428 (2000) ............................................ 5

District of Columbia v. Heller,

554 U.S. 570 (2008) .......................................... 28

Emp. Div. v. Smith,

494 U.S. 872 (1990) .......................................... 11

Fargo Women’s Health Organization v. Shafer,

507 U.S. 1013 (1993) .................................. 26, 27

Fulton v. City of Philadelphia, Pa.,

593 U.S. ___ (2021) .................................... 11, 28

Gonzales v. Carhart,

550 U.S. 124 (2007) ...................................... 9, 15

Graham v. Collins,

506 U.S. 461 (1993) ............................................ 6

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ............................................ 5

Harper v. Va. Dep’t of Taxation,

509 U.S. 86 (1993) .............................................. 6

Helvering v. Hallock,

309 U.S. 106 (1940) .................................. 3, 5, 20

Hertz v. Woodman,

218 U.S. 205 (1910) ............................................ 4

Hill v. Colorado,

530 U.S. 703 (2000) .......................................... 11

Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197 (1991) ............................................ 4

Janklow v. Planned Parenthood,

517 U.S. 1174 (1996) ........................................ 27

Janus v. Am. Fed’n of State, Cnty., & Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) .................................... 4, 7

Johnson v. United States,

135 S. Ct. 2551 (2015) ........................................ 6

June Medical Services L.L.C. v. Russo,

140 S. Ct. 2103 (2020) .............................. 1, 2, 16

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .............................. 4, 8, 20

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ............................................ 5

Kleppe v. New Mexico,

426 U.S. 529 (1976) .......................................... 13

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) .............................. 6, 7, 11

LaRue v. DeWolff, Boberg & Assocs. Inc.,

552 U.S. 248 (2008) .......................................... 28

Lawrence v. Texas,

539 U.S. 558 (2003) .......................................... 25

Leegin Creative Leather Products, Inc. v.

PSKS, Inc,

551 U.S. 877 (2007) ............................................ 6

Lemon v. Kurtzman,

403 U.S. 602 (1971) .......................................... 11

Marks v. United States,

430 U.S. 188 (1977) .......................................... 22

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................... 12, 33

Montejo v. Louisiana,

556 U.S. 778 (2009) ...................................... 8, 20

New Haven Inclusion Cases,

399 U.S. 392 (1970) .......................................... 13

New York v. Ferber,

458 U.S. 747 (1982) .......................................... 13

Nestlé USA, Inc. v. Doe,

No. 19-416, slip. op. (U.S. June 23, 2021) ....... 29

Payne v. Tennessee,

501 U.S. 808 (1991) .................................. passim

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ............................................ 6

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................... 17

Planned Parenthood Ass’n v. Ashcroft,

462 U.S. 476 (1983) .......................................... 15

Planned Parenthood of Central Mo. v. Danforth,

428 U.S. 52 (1976) ............................................ 20

Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott,

748 F.3d 583 (5th Cir. 2014)............................ 27

vii

Planned Parenthood of Ind. & Ky., Inc. v. Box,

949 F.3d 997 (7th Cir. 2019).................. 9, 16, 26

Planned Parenthood of Ind. & Ky., Inc. v. Box,

991 F.3d 740 (7th Cir. 2021)............................ 10

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

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

Price v. City of Chicago,

915 F.3d 1107 (7th Cir. 2019).......................... 11

Pub. Affairs Assocs. v. Rickover,

369 U.S. 111 (1962) .......................................... 13

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021)............................ 17

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .............................. 3, 7, 28

Randall v. Sorrell,

548 U.S. 230 (2006) .......................................... 20

Renne v. Geary,

501 U.S. 312 (1991) .......................................... 13

Roe v. Wade,

410 U.S. 113 (1973) .......................... 2, 12, 18, 21

Roper v. Simmons,

543 U.S. 551 (2005) .................................... 20, 21

viii

Smith v. Allwright,

321 U.S. 649 (1944) ............................................ 5

Stenberg v. Carhart,

530 U.S. 914 (2000) .................................... 15, 27

Swift Co. v. Wickham,

382 U.S. 111 (1965) .......................................... 17

Thornburgh v. American College of

Obstetricians & Gynecologists,

476 U.S. 747 (1986) ...................................... 8, 15

Vasquez v. Hillery,

474 U.S. 254 (1986) ...................................... 5, 29

Washington v. Glucksberg,

521 U.S. 702 (1997) .......................................... 23

Webster v. Reproductive Health Services,

492 U.S. 490 (1989) .................................. passim

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ........................................ 2

Witters v. Wash. Dep’t of Servs. for the Blind,

474 U.S. 481 (1986) .......................................... 13

Women’s Med. Prof’l Corp. v. Voinovich,

130 F.3d 187 (6th Cir. 1997), cert. denied,

523 U.S. 1036 (1998) ........................................ 21

Statutes

S.F. 96, 66th Gen. Assemb., Gen. Sess. (Wyo.

2021) ............................................................. 1, 19

Other Authorities

William Van Alstyne, Closing the Circle of

Constitutional Review from Griswold v.

Connecticut to Roe v. Wade: An Outline of a

Decision Merely Overruling Roe, 1989 Duke L.J.

1677 (1989) .......................................................... 12

Jack M. Balkin, ed., What Roe v. Wade Should Have

Said (2005) .......................................................... 16

Linda A. Bartlett et al., Risk Factors for Legal Induced

Abortion-Related Mortality in the United States,

103 Obstetrics & Gynecology 729 (2004) ........... 14

William Baude, Precedent and Discretion, 2019

Supreme Court Review 313 (2020) ...................... 9

Randy Beck, Fueling Controversy, 95 Marq. L. Rev.

735 (2011) ............................................................ 21

Randy Beck, Gonzales, Casey and the Viability Rule,

103 Nw. U. L. Rev. 249 (2009).............................. 2

Randy Beck, The Essential Holding of Casey:

Rethinking Viability, 75 U. Mo. Kan. City L. Rev.

713 (2007) ........................................................ 9, 10

Anita Bernstein, Common Law Fundamentals of the

Right to Abortion, 63 Buff. L. Rev. 1141 (2015)12

Philip Bobbitt, CONSTITUTIONAL FATE: THEORY OF THE

CONSTITUTION (1982) .......................................... 12

Ruth Burdick, Note, The Casey Undue Burden

Standard: Problems Predicted and Encountered,

and the Split Over the Salerno Test, 23 Hastings

Const. L.Q. 825 (1996) ..................................... 26

Steven G. Calabresi, Text, Precedent, and the

Constitution: Some Originalist and Normative

Arguments for Overruling Planned Parenthood of

Southeastern Pennsylvania v. Casey, 22

Constitutional Commentary 311 (2005) ............ 25

Joseph W. Dellapenna, DISPELLING THE MYTHS OF

ABORTION HISTORY (2006)........................... passim

Neal Devins, How Planned Parenthood v. Casey

(Pretty Much) Settled the Abortion Wars, 118 Yale

L. J. 1318 (2009)............................................ 25, 26

John Hart Ely, The Wages of Crying Wolf: A Comment

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

(1973) ....................................................... 12, 16, 18

Email from Michael J. New, Ph.D., Professor, Cath. U.

of Am., to Clarke Forsythe, Senior Counsel, Am.

United for Life (July 9, 2021, 06:07 CST) (on file

with author) ........................................................ 28

Richard H. Fallon, Jr., Constitutional Precedent

Viewed Through the Lens of Hartian Positivist

Jurisprudence, 86 N.C. L. Rev. 1107 (2008) ........ 9

Clarke D. Forsythe, A Draft Opinion Overruling Roe

v. Wade, 16 Geo. J. L. & Pub. Pol’y 445

(2018) .................................................................. 9

Clarke D. Forsythe & Rachel N. Morrison, Stare

Decisis, Workability, and Roe v. Wade: An

Introduction, 18 Ave Maria L. Rev. 48

(2020) ................................................................... 17

Henry J. Friendly, The Courts and Social Policy:

Substance and Procedure, 33 U. Mia. L. Rev. 21

(1978) ................................................................... 13

Bryan A. Garner et al., THE LAW OF JUDICIAL

PRECEDENT (2016) ......................................... 11, 22

Michael J. Gerhardt, Super Precedent, 90 Minn. L.

Rev. 1204 (2006) .................................................. 10

Michael J. Gerhardt, The Role of Precedent in

Constitutional Decisionmaking and Theory, 60

Geo. Wash. L. Rev. 68 (1991) ............................. 10

Stephen G. Gilles, Why the Right to Elective Abortion

Fails

Casey’s

Own

Interest-Balancing

Methodology—and Why It Matters, 91 Notre

Dame L. Rev. 691 (2015) .................................... 24

Ruth Bader Ginsburg, Speaking in a Judicial Voice,

67 N.Y.U. L. Rev. 1185 (1992) ........................ 9, 21

xii

Mary Ann Glendon, A NATION UNDER LAWYERS

(1994) ................................................................... 25

Paul Benjamin Linton, Overruling Roe v. Wade:

Lessons from the Death Penalty, 48 Pepp. L. Rev.

261 (2021) ............................................................ 19

Paul Benjamin Linton, Planned Parenthood v. Casey:

The Flight from Reason in the Supreme Court, 13

St. Louis U. Pub. L. Rev. 15 (1993) ........ 24, 25, 28

Paul Benjamin Linton, The Legal Status of the

Unborn Child Under State Law, 6 U. St. Thomas

J. L. & Pub. Pol’y. 141 (2011) ................. 19, 22, 23

Paul Benjamin Linton & Maura K. Quinlan, Does

Stare Decisis Preclude Reconsideration of Roe v.

Wade? A Critique of Planned Parenthood v.

Casey, 70 Case W. Res. L. Rev. 283

(2019) ............................................................. 19, 25

Earl M. Maltz, Abortion, Precedent, and the

Constitution: A Comment on Planned Parenthood

of Southeastern Pennsylvania v. Casey, 68 Notre

Dame L. Rev. 11 (1999) ...................................... 25

Richard S. Myers, Lower Court “Dissent” from Roe and

Casey, 18 Ave Maria L. Rev. 1 (2020) ................ 17

L.A. Powe, Jr., Intragenerational Constitutional

Overruling, 89 Notre Dame L. Rev. 2093

(2014) ................................................................... 25

xiii

Robert F. Nagel, THE IMPLOSION OF AMERICAN

FEDERALISM (2001) .............................................. 25

Michael Stokes Paulsen, Does the Supreme Court’s

Current Doctrine of Stare Decisis Require

Adherence to the Supreme Court’s Current

Doctrine of Stare Decisis?, 86 N.C. L. Rev. 1165

(2008) ................................................................... 25

Michael Stokes Paulsen, The Worst Constitutional

Decision of All Time, 78 Notre Dame L. Rev. 995

(2003) ................................................................... 25

Stephen B. Presser & Clarke D. Forsythe, Restoring

Self-Government on Abortion: A Federalism

Amendment, 10 Tex. Rev. of L. & Pol. 301

(2006) ................................................................... 18

Paul C. Quast, Respecting Legislators and Rejecting

Baselines: Rebalancing Casey, 90 Notre Dame L.

Rev. 913 (2014) .............................................. 24, 26

David M. Smolin, The Jurisprudence of Privacy in a

Splintered Supreme Court, 75 Marq. L. Rev. 975

(1992) ............................................................. 21, 22

Marc Spindelman, Embracing Casey: June Medical

Services L.L.C. v. Russo and the Constitutionality

of Reason-Based Abortion Bans, 109 Georgetown

L.J. Online 115 (2020) .......................................... 9

John Paul Stevens, The Life Span of a Judge-Made

Rule, 58 N.Y.U. L. Rev. 1 (1983) .......................... 3

xiv

Sandra L. Tholen & Lisa Baird, Con Law is as Con

Law Does: A Survey of Planned Parenthood v.

Casey in the State and Federal Courts, 28 Loy.

L.A. L. Rev. 971 (1995) ....................................... 26

Tr. of Oral Argument, Roe v. Wade, 410 U.S. 113

(1973) (No. 70-18) ................................................ 13

Tr. of Oral Argument, Doe v. Bolton, 410 U.S. 179

(1973) (No. 70-40) ................................................ 13

Mark V. Tushnet, Following the Rules Laid Down: A

Critique of Interpretivism and Neutral Principles,

96 Harv. L. Rev. 781 (1983) ................................ 16

INTEREST OF AMICUS CURIAE1

Since its founding in 1971, Americans United for

Life (AUL) has represented parties or filed amicus

briefs in virtually every abortion-related case decided

by this Court. Briefs authored by AUL have been cited

in Akron v. Akron Center for Reproductive Health, 462

U.S. 416, 426 n.9 (1983), Webster v. Reproductive

Health Services, 492 U.S. 490, 530 (1989) (O’Connor,

J., concurring in part and concurring in the

judgment), and June Medical Services L.L.C. v. Russo,

140 S. Ct. 2103, 2156 n.3 (2020) (Alito, J., dissenting).

AUL’s 50 years of work in Congress, state

legislatures, and the courts has influenced a range of

bioethical issues in American law, including assisted

suicide and life-sustaining care for persons with

disabilities. AUL’s legal counsel to state legislatures

on bioethical issues has guided legislators in virtually

every state and encouraged significant changes in

state legislation, including the 31 states which have

enacted a fetal homicide law that provides legal

protection for the developing human being from

conception, as Wyoming did in 2021. S.F. 96, 66th

Gen. Assemb., Gen. Sess. (Wyo. 2021) (enacted).

1 No party’s counsel authored any part of this brief. No person

other than Amici and their counsel contributed money intended

to fund the preparation or submission of this brief. Counsel for

all parties were provided notice of the filing of this amicus brief

pursuant to Sup. Ct. R. 37.2(a), and have granted written consent

to its filing.

SUMMARY OF ARGUMENT

This appeal highlights the unsettled precedential

status of Roe v. Wade, 410 U.S. 113 (1973) and

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992). The standard of review for

abortion regulations has bounced around, case by

case, from Roe to June Medical. 140 S. Ct. at 2182

(Kavanaugh. J., dissenting) (“Today, five Members of

the Court reject the Whole Woman’s Health costbenefit standard.”); Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Thomas, J.,

dissenting); Casey, 505 U.S. at 999 (Scalia, J.,

concurring in the judgment in part and dissenting in

part) (“Has Roe succeeded in producing a settled body

of law?”); Akron, 462 U.S. at 461 & n.8 (O’Connor, J.,

dissenting); Carey v. Population Servs. Int’l., 431 U.S.

678, 704 (1977) (Powell, J., concurring in part and

concurring in the judgment).

Aside from the constantly shifting standard of

review, Roe is radically unsettled for additional

reasons. It has not received the acquiescence of

Justices or lower court judges. Roe was wrongly

decided and poorly reasoned. Numerous adjudicative

errors during the original deliberations—especially

the absence of any evidentiary record—have

contributed to making Roe unworkable. It has been

the subject of persistent judicial and scholarly

criticism. There is a constant search for a

constitutional rationale for Roe, and the Court has yet

to give a reasoned justification for the viability rule.

See Randy Beck, Gonzales, Casey and the Viability

Rule, 103 Nw. U. L. Rev. 249 (2009).

Casey is unsettled by its failure to ground the

abortion right in the Constitution, by an ambiguous

standard of review that is unworkable, by conflicting

precedents that have “defied consistent application”

by the lower courts, and by persistent judicial and

scholarly criticism. Payne v. Tennessee, 501 U.S. 808,

828–830 (1991). Politics aside, reconsidering Roe and

Casey does not involve uprooting a stable, settled

feature of the legal landscape. Because they are

radically unsettled, Roe and Casey contradict the

stare decisis values of consistency, dependability, and

predictability and are entitled to minimal stare

decisis respect.

ARGUMENT

I. PRECEDENT IS ONLY ENTITLED TO STARE

DECISIS RESPECT IF IT IS SETTLED.

Stare decisis and settled law are inextricably

intertwined. The complete Latin maxim, stare decisis

et quieta non movere, means “stand by the decisions

and not disturb what is settled.” Cf. Ramos v.

Louisiana, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh,

J., concurring in part).2 Stare decisis et quieta non

movere is first and foremost about settled law, as

Justice Frankfurter emphasized in his opinion for the

Court in Helvering v. Hallock, 309 U.S. 106 (1940).

2 See also John Paul Stevens, The Life Span of a Judge-Made

Rule, 58 N.Y.U. L. Rev. 1, 1–2 & nn.1–2 (1983) (citing authorities

for the complete Latin maxim and translation). However, stare

decisis et quieta non movere (rather than non quieta movere)

preserves the proper sense of “do not disturb.”

If the legal rule is unsettled, it is likely that one or

more of the factors of stare decisis has unsettled the

precedent, and it is not entitled to stare decisis

respect. If the legal rule is settled, the question is

whether there is a compelling reason to overturn it.

The purpose of stare decisis et quieta non movere is to

respect not any precedent but settled precedent.

This Court has recognized that unsettled

precedent undermines the virtues of stare decisis. Am.

Legion v. Am. Humanist Ass’n., 139 S. Ct. 2067 (2019)

(Lemon unsettled); Janus v. Am. Fed’n of State, Cnty.,

& Mun. Emps., Council 31, 138 S. Ct. 2448 (2018)

(Abood unsettled); Payne, 501 U.S. 808 (Booth and

Gathers unsettled); Kisor v. Wilkie, 139 S. Ct. 2400,

2444 (2019) (Gorsuch, J., with Thomas and

Kavanaugh, JJ., concurring in the judgment) (Auer v.

Robbins unsettled).

Unsettled precedent cannot promote the virtues of

stare

decisis:

reliability,

consistency,

and

predictability.

Unsettled

precedent

negates

reasonable and substantial reliance. The American

judicial tradition demonstrates the duty of correcting

3 CSX Transp., Inc. v. McBride, 564 U.S. 685, 699 (2011) (“the

goals of ‘stability’ and ‘predictability’ that the doctrine of

statutory stare decisis aims to ensure” (quoting Hilton v. S.C.

Pub. Rys. Comm’n, 502 U.S. 197, 201 (1991)); Arizona v. Gant,

556 U.S. 332, 348 (2009) (“the stability of the law”); Payne, 501

U.S. at 827 (“evenhanded, predictable, and consistent

development of legal principles”); Hertz v. Woodman, 218 U.S.

205, 212 (1910) (“tending to consistency and uniformity of

decision”).

the error and the imperative of settling the law.4 The

rule of law is not served by unsettled law that

perpetuates unpredictability and unreliability, and

shifts from case to case instead of “develop[ing] in a

principled and intelligible fashion.” Vasquez v.

Hillery, 474 U.S. 254, 265 (1986).

This Court has affirmed this by stating that

settled or “long-settled” precedent needs “special

justification” to reconsider or overrule it. Halliburton

Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 350

(2014).5 Unsettled precedents do not need such

justification to be reconsidered.

When faced with unsettled law of conflicting

precedents in Helvering, the Court recognized that

stare decisis was “not a mechanical formula of

adherence to the latest decision, however recent and

questionable, when such adherence involves collision

with a prior doctrine more embracing in its scope,

intrinsically sounder, and verified by experience.” 309

U.S. at 119.

4 See e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 470 (2015)

(Alito, J., dissenting) (“Stare decisis is important to the rule of

law, but so are correct judicial decisions.”); Payne, 501 U.S. at

827 (“when governing decisions are unworkable or are badly

reasoned, this Court has never felt constrained to follow

precedent”) (internal quotation marks omitted); Smith v.

Allwright, 321 U.S. 649, 665 (1944) (“when convinced of former

error, this Court has never felt constrained to follow precedent”).

5 See also Marvel Ent., 576 U.S. at 459 (“long-settled”); Dickerson

v. United States, 530 U.S. 428, 461 (2000) (Scalia, J., with

Thomas, J., dissenting) (“longstanding precedent”); Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 234 (1995) (“wellsettled”).

Because unsettled law cannot provide reliability,

consistency, and predictability, unsettled precedent is

due minimal stare decisis respect. Knick v. Township

of Scott, 139 S. Ct. 2162, 2178 (2019) (“Because of its

shaky foundations, the state-litigation requirement

has been a rule in search of a justification for over 30

years. . . .another factor undermining the force of stare

decisis.”).6

II. THE COURT HAS TRADITIONALLY LOOKED TO

SEVERAL FACTORS TO DETERMINE WHETHER

PRECEDENT IS SETTLED.

Payne v. Tennessee is perhaps the leading modern

decision where the Court looked to several factors to

6 See also Am. Legion v. Am. Humanist Ass’n., 139 S. Ct. 2067,

2080–81 (2019) (“this Court has either expressly declined to

apply the [Lemon] test or has simply ignored it’); Johnson v.

United States, 135 S. Ct. 2551, 2563 (2015) (“Standing by James

and Sykes would undermine, rather than promote, the goals that

stare decisis is meant to serve.”); Harper v. Va. Dep’t of Taxation,

509 U.S. 86, 104 (1993) (Scalia, J., concurring) (“the well-settled

proposition that stare decisis has less force where intervening

decisions ‘have removed or weakened the conceptual

underpinnings from the prior decisions’” (quoting Patterson v.

McLean Credit Union, 491 U.S. 164, 173 (1989))); Continental

T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 47 (1977) (“Schwinn

itself was an abrupt and largely unexplained departure from

[White Motor]. . . . Since its announcement, Schwinn has been

the subject of continuing controversy and confusion, both in the

scholarly journals and in the federal courts.”); Graham v. Collins,

506 U.S. 461, 497 (1993) (Thomas, J., concurring) (“When a

single holding does so much violence to so many of this Court’s

settled precedents in an area of fundamental constitutional law,

it cannot command the force of stare decisis.”); Leegin Creative

Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 924 (2007)

(Breyer, J., dissenting) (“[T]he fact that a decision ‘unsettles’ the

law may argue in favor of overruling.”).

determine whether precedent is unsettled or settled.

There the Court observed why the two precedents

overturned were unsettled: they “were decided by the

narrowest of margins, over spirited dissents

challenging the basic underpinnings of those

decisions. They have been questioned by Members of

the Court in later decisions and have defied consistent

application by the lower courts.” 501 U.S. at 828–30.

In addition, the Court has looked to

“acquiescence” by the Justices and other judges. It has

looked to whether the precedent was well-reasoned,

Ramos, 140 S. Ct. at 1405, Knick, 139 S. Ct. at 2178,

Janus, 138 S. Ct. at 2478, and whether there has been

a series of consistent precedents or a series of

conflicting precedents. The Court has also looked to

judicial criticism and scholarly criticism. Intervening

doctrinal developments may unsettle a precedent,7 as

well as the constant search for a new rationale for the

precedent.8

7 Janus, 138 S. Ct. at 2460 (Abood “is inconsistent with other

First Amendment cases and has been undermined by more

recent decisions.”); Gant, 556 U.S. at 358 (Alito, J., dissenting)

(considering “whether there has been an important change in

circumstances in the outside world”); Agostini v. Felton, 521 U.S.

203, 235–36 (1997) (“[S]tare decisis does not prevent us from

overruling a previous decision where there has been a significant

change in or subsequent development of our constitutional

law.”).

8 See also Janus, 138 S. Ct. at 2481 n.25 (“the fact that [t]he

rationale of [Abood] does not withstand careful analysis is a

reason to overrule it” (alteration in original) (internal quotation

marks omitted)); Citizens United v. Fed. Election Comm’n, 558

U.S. 310, 363 (2010) (“When neither party defends the reasoning

of a precedent, the principle of adhering to that precedent

III. ROE V. WADE IS RADICALLY UNSETTLED.

Despite 48 years, Roe is radically unsettled due to

a badly reasoned opinion based on a mistaken history

and mistaken factual assumptions, a divided Court,

conflicting precedents, lower court criticism, scholarly

criticism, and the lack of state acquiescence.

Roe has been applied inconsistently in more than

thirty cases and has only been reaffirmed in three. In

Akron and Thornburgh v. American College of

Obstetricians & Gynecologists, the Court “reaffirmed”

based on a rigid application of stare decisis, but did

not reaffirm Roe on the merits. Akron, 462 U.S. at 420–

21 & n.1; Thornburgh, 476 U.S. 747, 772 (1986). Of

course, Casey overturned both Akron and

Thornburgh. 505 U.S. at 882. In Casey, the plurality

heavily relied on stare decisis, especially the reliance

interest factor, but never reaffirmed Roe on the

merits; the plurality merely reiterated what Roe had

said. See Section IV infra.

through stare decisis is diminished.”), id. at 379 (Roberts, CJ.,

joined by Alito, J., concurring) (“when the precedent's underlying

reasoning has become so discredited that the Court cannot keep

the precedent alive without jury-rigging new and different

justifications to shore up the original mistake”); Montejo v.

Louisiana, 556 U.S. 778, 792 (2009) (“We do not think that stare

decisis requires us to expand significantly the holding of a prior

decision—fundamentally revising its theoretical basis in the

process—in order to cure its practical deficiencies.”); Kisor v.

Wilkie, 139 S. Ct. 2400, 2445 (2019) (Gorsuch, J., concurring in

the judgment) (“[E]veryone agrees that . . . this Court should not

always remain bound to decisions whose “rationale no longer

withstands ‘careful analysis.’”) (quoting Gant, 556 U.S. at 348)).

Numerous Justices and federal judges have

observed that Roe and Casey are unsettled.9 Legal

scholars too have repeatedly warned of the unsettled

state of abortion law.10 The Eighth Circuit, the Fifth

9 Gonzales v. Carhart, 550 U.S. 124, 186 (2007) (Ginsburg, J.,

dissenting) (referring to “[t]he Court’s hostility to the right Roe

and Casey secured”); id. at 187 (“Casey’s principles . . . are merely

‘assume[d]’ . . . rather than ‘retained’ or ‘reaffirmed’”) (alteration

in original) (quoting Casey, 505 U.S. at 846); Planned Parenthood

of Ind. & Ky., Inc. v. Box, 949 F.3d 997, 999 (7th Cir. 2019)

(Kanne, J., joined by Barrett, J., dissenting from denial of

rehearing en banc) (“Given the existing unsettled status of preenforcement challenges in the abortion context, I believe this

issue should be decided by our full court.”); Ruth Bader Ginsburg,

Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1198 (1992)

(“Doctrinal limbs too swiftly shaped, experience teaches, may

prove unstable. The most prominent example in recent decades

is Roe v. Wade.”).

10 Marc Spindelman, Embracing Casey: June Medical Services

L.L.C. v. Russo and the Constitutionality of Reason-Based

Abortion Bans, 109 Georgetown L.J. Online 115 (2020) (“June

Medical . . . has already begun gaining a certain reputation as a

Trojan Horse: in form, a pro-choice ruling that overturns a

Louisiana anti-abortion measure, but in substance, an antichoice, pro-life decision that sets the stage for future reversals of

the Supreme Court’s reproductive rights jurisprudence.”);

William Baude, Precedent and Discretion, 2019 Supreme Court

Review 313, 332 (2020) (“Consider the most salient precedent in

the country, Roe v. Wade. . . [T]he Court did not succeed at its

goal of ‘call[ing] the contending sides of a national controversy to

end their national division by accepting a common mandate

rooted in the Constitution.’ The future of the decision remains

unsettled.”) (alteration in original); Richard H. Fallon, Jr.,

Constitutional Precedent Viewed Through the Lens of Hartian

Positivist Jurisprudence, 86 N.C. L. Rev. 1107, 1116 (2008) (“[A]

decision as fiercely and enduringly contested as Roe v. Wade has

acquired no immunity from serious judicial reconsideration, even

if arguments for overruling it ought not succeed.”); Randy Beck,

Circuit, and other courts have written recently on the

unsettled status of the basic standard of review in

abortion law after June Medical.11

Unsettled by a divided Court. Acquiescence in Roe

and Casey has been prevented by consistent criticism

from Justices of this Court. After declaring a “right”

to abortion, the Court quickly grew divided over the

application of that right to specific state regulations.

Casey, 505 U.S. at 950 (Rehnquist, J., concurring in

the judgment in part and dissenting in part). By the

“splintered” decision in Casey, the number of

dissenters had grown to four, which has since marked

The Essential Holding of Casey: Rethinking Viability, 75 U. Mo.

Kan. City L. Rev. 713 (2007) (In Stenberg, “the three justices who

formed the Casey plurality had not successfully resolved the

abortion issue even among themselves.”); Michael J. Gerhardt,

Super Precedent, 90 Minn. L. Rev. 1204, 1220 (2006) (“[T]he

persistent condemnation of Roe, particularly by national political

leaders—including Presidents Reagan, George H.W. Bush, and

George W. Bush, as well as a current majority of the United

States Senate—undermines its claim to entrenchment.”); Joseph

W. Dellapenna, DISPELLING THE MYTHS OF ABORTION HISTORY,

846 (2006) (“Webster left uncertain just what standard should be

applied to test the constitutionality of abortion statutes”);

Michael J. Gerhardt, The Role of Precedent in Constitutional

Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 105

(1991) (citing Roe as “[a] particularly controversial example of a

case illustrating the costs of the Court's failure to reach ‘judicial

closure’ . . . Whatever the merits of Roe, it has never stabilized;

from the beginning it has been criticized by a wide spectrum of

politicians and scholars, and has been the subject of constant

challenges.”).

11 Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740,

741, 751 n.7 (7th Cir. 2021) (noting the Court’s abortion

jurisprudence is “not stable” and is “challenging and fluid”); id.

at 752 (Kanne, J., dissenting) (observing that June Medical was

“a fractured case that produced six different opinions”).

most abortion decisions. Decisions that lack

acquiescence by the members of the Court and are

marked by dissents are unsettled. Payne, 501 U.S. at

829 (“decided . . . over spirited dissents challenging

the basic underpinnings of those decisions”); Knick,

139 S. Ct. at 2178 (“repeated criticism over the years

from Justices of this Court and many respected

commentators”).12 To the extent that unanimous

decisions lend stability to the law and reinforce the

legitimacy of the Court, the splintered decisions that

Roe and Casey have consistently fostered dramatically

undercut stability and legitimacy.

Unsettled because wrongly decided. Roe was

wrongly decided because it lacked a precedential

foundation, lacked any evidentiary record, and

created a “right” for which there was no historical

foundation in Anglo-American law. In addition, Roe

violated a number of settled prudential rules. These

defects explain why Roe is still radically unsettled.

Roe had no precedential foundation. The Court

cited a string of “privacy” cases for the ipse dixit that

Cf. Emp. Div. v. Smith, 494 U.S. 872 (1990), is obviously

unsettled. See Fulton v. City of Philadelphia, Pa., 593 U.S. ___

(2021) (Alito, J., concurring) (slip op., at 11) (“five sitting

Justices” have urged that Smith be reconsidered)). Hill v.

Colorado, 530 U.S. 703 (2000), is obviously unsettled. See Price

v. City of Chicago, 915 F.3d 1107, 1119 (7th Cir. 2019) (“While

the Supreme Court has deeply unsettled Hill, it has not

overruled the decision.”). Lemon v. Kurtzman, 403 U.S. 602

(1971) is obviously unsettled. See Am. Legion, 139 S. Ct. 2067.

See also Bryan A. Garner et al., THE LAW OF JUDICIAL

PRECEDENT 190–91 n.44 (2016) (collecting divided decisions by

the Court).

the “right of privacy” is “broad enough to encompass a

woman’s decision whether or not to terminate her

pregnancy,” 410 U.S. at 152–53, but then

acknowledged that a woman “carries an embryo and,

later, a fetus” and that “[t]he situation therefore is

inherently different from marital intimacy, or bedroom

possession of obscene material, or marriage, or

procreation, or education, with which Eisenstadt and

Griswold [and] Stanley . . . were respectively

concerned.” Id. at 159 (emphasis added).13

Roe had no historical foundation. The history

proffered in Roe, which makes up nearly half of the

Roe opinion, has been severely criticized as

erroneous.14 It was abandoned by the Court by the

time of Webster, 492 U.S. at 537, and the Casey Court

did not defend it. The Court has never demonstrated

that Roe’s abortion right is “deeply rooted in this

Nation's history and tradition.” McDonald v. City of

Chicago, 561 U.S. 742, 767 (2010).

Roe is unsettled due to basic adjudicative errors.

There was no evidentiary record in either Roe or Doe

13 The precedential foundation has been criticized by numerous

scholars. See e.g., Philip Bobbitt, CONSTITUTIONAL FATE: THEORY

OF THE CONSTITUTION 159 (1982); John Hart Ely, The Wages of

Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973);

William Van Alstyne, Closing the Circle of Constitutional Review

from Griswold v. Connecticut to Roe v. Wade: An Outline of a

Decision Merely Overruling Roe, 1989 Duke L.J. 1677 (1989).

14 Dellapenna, supra note 10, 13–15 & nn.71–72 (collecting

authorities), 125–370; Anita Bernstein, Common Law

Fundamentals of the Right to Abortion, 63 Buff. L. Rev. 1141,

1193 (2015) (“Dellapenna argues persuasively that this

combination [safety and effectiveness] did not come together

until the nineteenth century.”).

v. Bolton—they were decided on motions to dismiss or

for summary judgment—as counsel for Georgia and

Texas made clear at oral argument.15 This violated

the settled principle that the Court will not decide a

constitutional claim without “an adequate and fullbodied record.” Kleppe v. New Mexico, 426 U.S. 529,

546 (1976) (quoting Pub. Affairs Assocs. v. Rickover,

369 U.S. 111, 113 (1962) (per curiam)); New York v.

Ferber, 458 U.S. 747, 780–81 (1982) (Stevens, J.,

concurring in judgment) (“Hypothetical rulings are

inherently treacherous and prone to lead us into

unforeseen errors; they are qualitatively less reliable

than the products of case-by-case adjudication.”).16

15 Tr. of Oral Argument at 16, Roe v. Wade, 410 U.S. 113 (1973)

(No. 70-18) (counsel for Texas saying, “The record that came up

to this Court contains the amended petition of Jane Roe, an

unsigned alias affidavit, and that is all.”); Tr. of Oral Argument

at 18, Doe v. Bolton, 410 U.S. 179 (1973) (No. 70-40) (counsel for

Georgia saying, “And that again is one of the great problems with

this case. We know of no facts, there are no facts, in this case, no

established facts.”).

16 See also Renne v. Geary, 501 U.S. 312, 321–22 (1991) (citing

cases); Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S.

481, 486 n.3 (1986); New Haven Inclusion Cases, 399 U.S. 392,

450 n.66 (1970); Associated Press v. Nat’l Lab. Rels. Bd., 301 U.S.

103, 132 (1937) (“Courts deal with cases upon the basis of the

facts disclosed, never with nonexistent and assumed

circumstances.”); City of Hammond v. Schappi Bus Line, 275

U.S. 164, 171–72 (1927). See also Henry J. Friendly, The Courts

and Social Policy: Substance and Procedure, 33 U. Mia. L. Rev.

21, 36–38 (1978) (“The Court’s conclusion in Roe that ‘[m]ortality

rates for women undergoing early abortions, where the

procedure is legal, appear to be as low as or lower than the rates

for normal childbirth’ rested entirely on materials not of record

in the trial court, and that conclusion constituted the

underpinning for the holding that the asserted interest of the

state ‘in protecting the woman from an inherently hazardous

procedure’ during the first trimester did not exist.”).

Deciding Roe and Doe with no evidentiary record

led to serious problems in fashioning judicial rules

and applying them in subsequent cases. Two problems

flowing from those adjudicative errors, which bear

directly on Mississippi’s 15-week limit here, are the

viability rule and the factual assumption that

“abortions are safer than childbirth.” Akron, 462 U.S.

at 430 n.11; Connecticut v. Menillo, 423 U.S. 9, 11

(1975) (per curiam) (“[T]he insufficiency of the State's

interest in maternal health is predicated upon the

first trimester abortion’s being as safe for the woman

as normal childbirth at term. . . .”). As utter dictum,

Roe’s viability rule violated the long-established rule

that “[f]ederal courts may not ‘decide questions that

cannot affect the rights of litigants in the case before

them’ or give ‘opinion[s] advising what the law would

be upon a hypothetical state of facts.’” City of L. A. v.

Patel, 135 S. Ct. 2443, 2457 (2015) (Scalia, J.,

dissenting) (alterations in original) (citation omitted).

One of many problems that resulted from the lack

of any evidentiary record in Roe and Doe is that when

the Court announced the viability rule in Roe, it

considered the relation of viability to fetal life but

never considered the implications for maternal

health, which is now implicated in this case. Linda A.

Bartlett et al., Risk Factors for Legal Induced

Abortion-Related Mortality in the United States, 103

Obstetrics & Gynecology

729 (2004). After the

dictum in Roe, the Court has never actually examined

the viability rule as applied to the state interests of

maternal health or fetal survivability. For example,

the statute defining viability in Colautti v. Franklin

was challenged on its face and invalidated as

unconstitutionally vague. 439 U.S. 379, 391–93

(1979). Gonzales v. Carhart was also a facial

challenge. 550 U.S. 124, 145 (2007). It upheld a ban

on an abortion procedure that applied before and after

viability, over the objection of the dissent that the

decision “blur[red] the line, firmly drawn in Casey,

between previability and postviability abortions.” Id.

at 171 (Ginsburg, J., dissenting).17

Unsettled by a poorly reasoned opinion. “[W]hen

governing decisions are unworkable or are badly

reasoned, this Court has never felt constrained to

follow precedent.” Payne, 501 U.S. at 827 (internal

quotation marks omitted). Roe’s rationale and

reasoning have been subjected to withering and

enduring criticism from Justices, judges, and

scholars. “[T]he opinion in Roe is so poorly written

that defenders of its outcome usually begin their

analysis by apologizing for the opinion.” Joseph W.

Dellapenna, DISPELLING THE MYTHS OF ABORTION

17 Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983),

involved a facial challenge, id. at 476, where the Court upheld a

Missouri statute that required a second physician to be present

if the fetus was aborted post-viability. Id. at 486. Thornburgh v.

Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986)

involved a facial challenge filed before the effective date of the

statute, id., requiring a particular standard of care during an

abortion procedure and the presence of a second physician after

viability. Id. at 768. Webster v. Reprod. Health Servs., 492 U.S.

490 (1989), involved a facial challenge, id. at 521, to a

requirement that physicians perform tests to determine whether

the fetus is viable if the physician had reason to believe that the

mother is twenty or more weeks pregnant. Id. at 501. Stenberg v.

Carhart, 530 U.S. 914 (2000), involved a facial challenge, id. at

922, and the statute was invalidated on its face for lacking an

adequate “health” exception. Id. at 937.

HISTORY 687 & n.433 (2006) (citing sources). See also

Jack M. Balkin, ed., What Roe v. Wade Should Have

Said (2005); John Hart Ely, The Wages of Crying Wolf:

A Comment on Roe v. Wade, 82 Yale L.J. 920, 943

(1973) (“Roe lacks even colorable support in the

constitutional text, history, or any other appropriate

source of constitutional doctrine.”). Mark V. Tushnet

concluded, “It seems to be generally agreed that, as a

matter of simple craft, Justice Blackmun's opinion for

the Court was dreadful.” Following the Rules Laid

Down: A Critique of Interpretivism and Neutral

Principles, 96 Harv. L. Rev. 781, 820 & n.121 (1983).

Unsettled by conflicting precedents. Justice

O’Connor highlighted the problem in her Akron

dissent. 462 U.S. at 461–64 & n.8. The decisions from

Roe to Casey exhibited a confused standard of review.

Casey, 505 U.S. at 944 (Rehnquist, J., concurring in

judgment in part and dissenting in part) (“the

confused

state

this

Court's

abortion

jurisprudence”). The Court’s abortion doctrine is also

plagued by an unsettled standard for pre-enforcement

challenges.18 Likewise, the rule for third-party

standing in abortion litigation is unsettled. June Med.

Servs., 140 S. Ct. at 2146 (Thomas J., dissenting). And

the rule for facial challenges and whether a “large

fraction” is required is unsettled.

Unsettled by lower court criticism. The Court has

traditionally observed that its decisions have been

18 See e.g., Box, 949 F.3d at 999 (Kanne, J., joined by Barrett, J.,

dissenting from denial of rehearing en banc) (referring to “the

existing unsettled status of pre-enforcement challenges in the

abortion context”).

unsettled by lower court criticism. Pearson v.

Callahan, 555 U.S. 223, 234 (2009) (“Lower court

judges . . . have not been reticent in their

criticism. . . .”); Swift Co. v. Wickham, 382 U.S. 111,

124–25 (1965) (citing the criticism of the Kesler rule

in the lower court by Judge Henry J. Friendly). Lower

court criticism of the Court’s abortion doctrine has

been persistent. As Judge Sutton recently wrote about

the Court’s abortion case law:

What have been the effects of this

centralization of power? Has it left the

competing sides to the debate content or more

fearful of what’s next? Has judicial authority

over the issue been healthy for the federal

courts? More than all that, has it worked? Has

our jurisprudence facilitated more compromise

and thus more settled law? Today’s case, it

seems to me, is Exhibit A in a proof that federal

judicial authority over the [abortion] issue has

not been good for the federal courts or for

increased stability over this difficult area of

law.

Preterm-Cleveland v. McCloud, 994 F.3d 512, 536 (6th

Cir. 2021) (Sutton, J., concurring).19

Unsettled by scholarly criticism. The Court has

traditionally cited the criticism of legal scholars as

19 See Clarke D. Forsythe, A Draft Opinion Overruling Roe v.

Wade, 16 Geo. J. L. & Pub. Pol’y 445, 491–93 (2018) (listing

additional examples of judicial criticism); Richard S. Myers,

Lower Court “Dissent” from Roe and Casey, 18 Ave Maria L. Rev.

1 (2020).

showing that a precedent is unsettled or warrants

reconsideration. Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 232 (1995). Roe is one of the most widely

and frequently criticized decisions in the Court’s

history. See Dellapenna, supra, at 771 n.6 (2006) (a

comprehensive collection of critical sources). Roe was

immediately questioned in an influential critique by

John Hart Ely.20 Many of the most influential

constitutional law experts of the 1970s criticized

Roe.21 Scholarly criticism has continued after every

abortion decision.

Unsettled by state resistance (non-acquiescence).

The Roe Court anticipated that state legislatures

would respond to the decision with abortion

regulations that would fill the legal vacuum. 410 U.S

at 165 n.67; id. at 174 (Rehnquist, J., dissenting). And

many States responded immediately. “State

legislatures across the United States never quit

attempting to discover restrictions on abortion that

would pass muster before the Supreme Court.”

Dellapenna, supra, at 838. See also id. at 887–88 nn.

3–7.

In the past decade, however, a growing number of

states have enacted increasingly strong limits.

Twenty-four states have enacted limits on abortion at

20 Ely, supra note 13.

21 See Stephen B. Presser & Clarke D. Forsythe, Restoring Self-

Government on Abortion: A Federalism Amendment, 10 Tex. Rev.

of L. & Pol. 301 (2006) (compiling sources).

or near 20 weeks.22 Nearly a dozen states have passed

laws prohibiting abortion upon evidence of a fetal

heartbeat.23 Outside the context of abortion, 37 states

have enacted a fetal homicide law, with 31 of these

states extending protection from conception.24 Since

Roe, numerous states have increased legal protection

for the prenatal human being in tort and criminal law.

Paul Benjamin Linton, The Legal Status of the

Unborn Child Under State Law, 6 U. St. Thomas J. L.

& Pub. Pol’y. 141, 146–48 (2011). A recent analysis by

Linton shows that “in at least nine distinct ways, the

overwhelming majority of states have expressed their

profound disagreement with (and rejection of) the

abortion regime imposed upon them by the Court in

Roe.”25 Clearly, more than half of the States have not

accepted Roe and Doe.

Unsettled by an unworkable role and rule.

Unworkability is a traditional defect that unsettles a

22 These include Alabama, Arizona, Arkansas, Georgia, Idaho,

Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi,

Montana, Nebraska, North Carolina, North Dakota, Ohio,

Oklahoma, South Carolina, South Dakota, Tennessee, Texas,

Utah, West Virginia, and Wisconsin. The limitations in Arizona,

Idaho, Missouri, North Carolina, Tennessee, and Utah are not in

effect.

23 These include Arkansas, Georgia, Idaho, Iowa, Kentucky,

Louisiana, Ohio, Oklahoma, South Carolina, South Dakota, and

Texas. None are currently in effect.

24 See Paul Benjamin Linton & Maura K. Quinlan, Does Stare

Decisis Preclude Reconsideration of Roe v. Wade? A Critique of

Planned Parenthood v. Casey, 70 Case W. Res. L. Rev. 283, 321

nn. 204–05 (2019); S.F. 96, (Wyo. 2021).

25 Paul Benjamin Linton, Overruling Roe v. Wade: Lessons from

the Death Penalty, 48 Pepp. L. Rev. 261, 274 (2021); see id. at 333

(listing state legislative responses).

precedent or legal rule. Montejo v. Louisiana, 556 U.S.

778, 792 (2009); Randall v. Sorrell, 548 U.S. 230, 272

(2006); Payne, 501 U.S. at 827. See generally, Clarke

D. Forsythe & Rachel N. Morrison, Stare Decisis,

Workability, and Roe v. Wade: An Introduction, 18

Ave Maria L. Rev. 48 (2020). This is especially so if the

rule is judge-made. See e.g., Kisor, 139 S. Ct. at 2444

(Gorsuch, J., concurring in judgment) (force of stare

decisis is less for “judicially invented default rule[s].”)

(alteration in original) (internal quotation marks

omitted). The unworkability of the Court’s detailed

abortion doctrine has been one consistent point of

criticism.26

The Court adopted an unworkable role as the

nation’s “ex officio medical board with powers to

approve or disapprove medical and operative

practices. . . .” Planned Parenthood of Central Mo. v.

Danforth, 428 U.S. 52, 99 (1976) (White, J., concurring

in part and dissenting in part); see also Hellerstedt,

136 S. Ct. at 2326 (Thomas, J., dissenting) (same);

Webster, 492 U.S. at 519 (plurality opinion) (same);

Akron, 462 U.S. at 456 (O’Connor, J., dissenting)

(same).

The Court has been unable to competently fill that

self-appointed role in the medical context of abortion.

Roper v. Simmons, 543 U.S. 551, 618 (2005) (Scalia,

J., dissenting) (“Legislatures are better qualified to

weigh and evaluate the results of statistical studies in

terms of their own local conditions and with a

26 See e.g., Webster, 492 U.S.at 518–21 (plurality opinion); Akron

v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 459 (1983)

(O’Connor, J., dissenting).

flexibility of approach that is not available to the

courts.”) (internal quotation marks omitted).

Consequently, the Court has delegated that role to

abortion providers, creating an irresolvable

contradiction that has resulted in the Court

denigrating the states’ interests and the states’ role in

protecting those interests.

Unsettled by its sweeping scope. Roe v. Wade and

Doe v. Bolton are unique decisions. The Court did not

merely strike down the Texas laws “as a unit.” Roe,

410 U.S. at 166. The Court drafted a detailed regime,

Webster, 492 U.S. at 520 (plurality opinion), and Doe

created a health exception after viability that has

been applied to invalidate limits on post-viability

abortion. Women’s Med. Prof’l Corp. v. Voinovich, 130

F.3d 187, 209 (6th Cir. 1997), cert. denied, 523 U.S.

1036 (1998). Roe and Doe are generally understood to

have created a right to abortion for any reason, at any

time of pregnancy, which positioned the Court at odds

with enduring public opinion. Randy Beck, Fueling

Controversy, 95 Marq. L. Rev. 735, 737 (2011) (“Roe’s

extension of abortion rights through the second

trimester of pregnancy created a structural

misalignment between constitutional law and popular

sentiment.”) (reviewing polling data).

IV.PLANNED PARENTHOOD V. CASEY FAILED TO

SETTLE ROE V. WADE AND THUS NEITHER IS

ENTITLED TO STARE DECISIS RESPECT.

Casey was a splintered decision, decided 3-2-4,

necessarily weakening its precedential effect. Ruth

Bader Ginsburg, Speaking in a Judicial Voice, 67

N.Y.U. L. Rev. 1185, 1199 (1992); David M. Smolin,

The Jurisprudence of Privacy in a Splintered Supreme

Court, 75 Marq. L. Rev. 975 (1992); Bryan A. Garner

et al., THE LAW OF JUDICIAL PRECEDENT 194–97 (2016)

(“[I]n general these split decisions make weak

precedents.”). The rule from Marks v. United States,

430 U.S. 188 (1977) cobbles together a controlling

opinion for purposes of identifying a holding for

vertical precedent but cannot provide a constitutional

rationale for horizontal precedent. The plurality in

Casey recognized that Roe was unsettled but failed to

consider that fact in its stare decisis analysis. Casey,

505 U.S. at 843 (referring to “a jurisprudence of

doubt”).

Casey was simply incoherent. The plurality

emphasized stare decisis but expressly overruled

Akron and Thornburgh. Casey, 505 U.S. at 870, 882.

It refused to overrule Roe due to political pressure, id.

at 867, but failed to acknowledge the political

pressure on both sides. It suggested that abortion was

“sui generis,” id. at 857, even though there is a long

Anglo-American tradition protecting prenatal life,

and extensive state protection in prenatal injury,

wrongful death, and fetal homicide law. Dellapenna,

supra; Linton, The Legal Status of the Unborn Child

Under State Law, supra. It talked about a “covenant,”

Casey, 505 U.S. at 901, but not the Anglo-American

legal protection for the prenatal human that

historically parallels that covenant. It called “the

contending sides . . . to end their national division by

accepting a common mandate rooted in the

Constitution,” id. at 867 (alteration in original), but

failed to explain how an abortion “right” was “rooted

in the Constitution.” Id. It only justified the “right” by

repeating the ipse dixit of Eisenstadt (“If the right of

privacy means anything, it is the right. . . .”). Id. at

896. And the “mystery” passage necessarily ignores

the reality that state legal protection specifically

protects the prenatal human as a human being.

Linton, The Legal Status of the Unborn Child Under

State Law, supra.

Casey did not “reaffirm” Roe on the merits but on

stare decisis. 505 U.S. at 854–69.27 Casey did not

provide a constitutional foundation for Roe in text,

history, or structure. Casey did not demonstrate that

an abortion right is “deeply rooted in this Nation's

history and tradition.” McDonald, 561 U.S. at 767

(quoting Washington v. Glucksberg, 521 U.S. 702, 721

(1997)). See Casey, 505 U.S. at 982 (Scalia J.,

concurring in judgment in part and dissenting in part)

(“The authors of the joint opinion, of course, do not

squarely contend that Roe v. Wade was a correct

application of ‘reasoned judgment’; merely that it

must be followed, because of stare decisis.”). Casey

failed its own test: “a decision without principled

justification would be no judicial act at all.” 505 U.S.

at 865. Cf. Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 384 (2010) (Roberts, C.J., concurring)

(“Stare decisis is a doctrine of preservation, not

transformation. . . There is . . . 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

See also Dellapenna, supra note 10, at 853 (The plurality

“contented themselves with standing on the rule of stare decisis

without an original examination of the relevant history and

tradition.”).

grounds that

discredited.”).

have

since

been

abandoned

The closest the plurality in Casey came to

addressing the merits of the constitutional “right” was

an ipse dixit. 505 U.S. at 846 (“Constitutional

protection of the woman’s decision to terminate her

pregnancy derives from the Due Process Clause of the

Fourteenth Amendment.”). Next, there are several

ambiguous recitations of Roe’s analysis; id. at 848

(“[T]he Constitution places limits on a State’s right to

interfere with a person’s most basic decisions about

family and parenthood, as well as bodily integrity.”

(citations omitted)); id. at 851 (“Our law affords

constitutional protection to personal decisions

relating to marriage, procreation, contraception,

family relationships, child rearing, and education.”);

id. at 853 (“[I]ts holding invoked the reasoning and

the tradition of the precedents we have discussed,

granting protection to substantive liberties of the

person.”); id. at 869 (“[T]he basic decision in Roe was

based on a constitutional analysis which we cannot

now repudiate.”). Finally, there is the vague “mystery”

passage. Id. at 851.

Casey has been unsettled by scholarly criticism.28

And Casey’s stare decisis discussion has been an

28 See e.g., Stephen G. Gilles, Why the Right to Elective Abortion

Fails Casey’s Own Interest-Balancing Methodology—and Why It

Matters, 91 Notre Dame L. Rev. 691 (2015); Paul Benjamin

Linton, Planned Parenthood v. Casey: The Flight from Reason in

the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15 (1993); Paul

C. Quast, Respecting Legislators and Rejecting Baselines:

Rebalancing Casey, 90 Notre Dame L. Rev. 913, 915 n.12 (2014)

(collecting case and scholarly sources).

orphan. Michael Stokes Paulsen, Does the Supreme

Court’s Current Doctrine of Stare Decisis Require

Adherence to the Supreme Court’s Current Doctrine of

Stare Decisis?, 86 N.C. L. Rev. 1165 (2008). Despite

proclaiming a “full-blown” theory of stare decisis, the

exposition of stare decisis in the plurality opinion in

Casey has been relied upon by the Court’s majority in

no stare decisis decision in the 29 years since Casey.

Lawrence v. Texas, 539 U.S. 558 (2003), of course,

relied on the “mystery” passage of Casey, not the stare

decisis exposition. Casey’s stare decisis analysis has

also been the subject of significant scholarly

criticism.29

Casey is unsettled by an ambiguous standard of

review. Neal Devins, How Planned Parenthood v.

29 Robert F. Nagel, THE IMPLOSION OF AMERICAN FEDERALISM 99–

111 (2001); Mary Ann Glendon, A NATION UNDER LAWYERS 114–

15 (1994); Dellapenna supra note 10, at 856 & n.171 (“its utter

intellectual incoherence”); Steven G. Calabresi, Text, Precedent,

and the Constitution: Some Originalist and Normative

Arguments for Overruling Planned Parenthood of Southeastern

Pennsylvania v. Casey, 22 Constitutional Commentary 311

(2005); Linton & Quinlan, Does Stare Decisis Preclude

Reconsideration of Roe v. Wade? A Critique of Planned

Parenthood v. Casey, supra note 24; L.A. Powe, Jr.,

Intragenerational Constitutional Overruling, 89 Notre Dame L.

Rev. 2093, 2112 (2014) (“Casey’s intentional failure to mention

what appears to be the principal factor in overruling seriously

undermines the credibility of its treatment of stare decisis.”);

Michael Stokes Paulsen, The Worst Constitutional Decision of All

Time, 78 Notre Dame L. Rev. 995 (2003); Linton, Planned

Parenthood v. Casey: The Flight from Reason in the Supreme

Court, supra note 28; Earl M. Maltz, Abortion, Precedent, and the

Constitution: A Comment on Planned Parenthood of

Southeastern Pennsylvania v. Casey, 68 Notre Dame L. Rev. 11

(1999).

Casey (Pretty Much) Settled the Abortion Wars, 118

Yale L. J. 1318, 1322 (2009) (“Casey is a sufficiently

malleable standard that it can be applied to either

uphold or invalidate nearly any law that a state is

likely to pass.”).30 What is an “undue burden” in the

abortion context is continually litigated. See e.g.,

Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 988 F.3d

329, 335 (6th Cir. 2021) (holding 2-1 that a 24 to 48

hour waiting period for women an undue burden and

noting that “disagreement had arisen as to the proper

application of Casey’s undue burden standard (as the

Casey plurality itself predicted that it would. . . .)”);

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) (“How

much burden is ‘undue’ is a matter of judgment, which

depends on what the burden would be (something the

injunction prevents us from knowing) and whether

that burden is excessive (a matter . . . which one judge

is apt to do differently from another. . . . .)”). The

undue burden standard is unworkable. Quast, supra,

at 915 n.12 (collecting criticism of undue burden

standard).

Casey has been unsettled by the conflicting

precedents that followed. Several months after Casey

was decided, Fargo Women’s Health Organization v.

Shafer, 507 U.S. 1013, 1014 (1993) (O’Connor, J.,

See also Ruth Burdick, Note, The Casey Undue Burden

Standard: Problems Predicted and Encountered, and the Split

Over the Salerno Test, 23 Hastings Const. L.Q. 825 (1996) (citing

cases); Sandra L. Tholen & Lisa Baird, Con Law is as Con Law

Does: A Survey of Planned Parenthood v. Casey in the State and

Federal Courts, 28 Loy. L.A. L. Rev. 971 (1995) (citing cases).

concurring), resulted in the “large fraction” test being

applied to all state abortion regulations. In Janklow

v. Planned Parenthood, 517 U.S. 1174 (1996), a

divided Court disputed the applicable standard of

review. Stenberg v. Carhart, 530 U.S. 914 (2000),

upended the Casey standard of review. The standard

of review has bounced around from Casey to Fargo to

Stenberg to Gonzales to Whole Woman’s Health, to

June Medical Services. Casey is unsettled because of

at least two lines of conflicting precedent with

contradictory standards of review: Casey-StenbergWhole Woman’s Health versus Casey-Gonzales-June

Medical.

Casey is unsettled by judicial criticism in the lower

courts. See e.g., Planned Parenthood of Greater Tex.

Surgical Health Servs. v. Abbott, 748 F.3d 583, 588

(5th Cir. 2014) (noting confusion over pre-enforcement

facial challenge standard in abortion cases); supra

note 26 (collecting examples).

Casey’s exposition of reliance interests was

exceptionally weak. Casey repeated the error of Roe.

Just as Roe had no evidentiary record for its

constitutional rationale, Casey had no evidentiary

record for its adoption of “reliance interests.” Instead,

the Casey Court cited two pages from a 1990 book as

its entire case for reliance: Rosalind Petchesky’s

ABORTION AND WOMEN’S CHOICE. But Petchesky never

made the claim for which the Casey Court cited her;

she did not claim that abortion can be shown to be

necessary for workforce participation. She staked that

claim on contraception, not abortion. Since Casey, the

abortion rate has declined considerably—by more

than 52% since 1980.31 In addition, Roe is a doctrinal

orphan: it stands for abortion but has not been relied

upon “as a basis of women’s rights in any area other

than abortion.” Dellapenna, supra, at 866; Paul

Benjamin Linton, Planned Parenthood v. Casey: The

Flight from Reason in the Supreme Court, 13 St. Louis

U. Pub. L. Rev. 15, 43–45, 78–102 (1993) (citing cases

and statutes). Reliance interests must be reasonable

and they must be substantial; both are undercut by

the unsettled status of Roe and Casey.32

31 According to Professor Michael New, based on data from the

Alan Guttmacher Institute, “the abortion rate peaked at 29.3 per

thousand women of childbearing age in 1980 and fell to 13.5 per

thousand women of childbearing age in 2017. (29.3 - 13.5)/29.3 =

.539 (or a decline of over 53 percent).” Email from Michael J.

New, Ph.D., Professor, Cath. U. of Am., to Clarke Forsythe,

Senior Counsel, Am. United for Life (July 9, 2021, 06:07 CST) (on

file with author).

32 See e.g., Ramos, 140 S. Ct. at 1420 (Sotomayor, J., concurring)

(“[T]he reliance interests at stake in this case are not especially

substantial. . . .”); Id. at 1440 (Alito, J., dissenting) (“entirely

reasonable reliance”); Davis v. United States, 564 U.S. 229, 241

(2011) (“in reasonable reliance on binding precedent”); Comm’r

of Internal Revenue v. Fink, 483 U.S. 89, 105 (1987) (Stevens, J.,

dissenting) (“reasonable reliance on a previous interpretation”);

Fulton, 593 U.S. __, (slip op., at 73) (Alito, J., concurring in

judgment) (“even if more substantial reliance could be shown”);

Gant, 556 U.S. at 359 (Breyer, J., dissenting) (“substantial

reliance here”); LaRue v. DeWolff, Boberg & Assocs. Inc., 552 U.S.

248, 259 (2008) (Roberts, C.J., concurring in part and concurring

in judgment) (“no doubt engendered substantial reliance

interests”); Adarand Constructors, 515 U.S. at 233 (1995)

(“because Monroe was a departure from prior practice that had

not engendered substantial reliance”) (internal quotation marks

omitted); District of Columbia v. Heller, 554 U.S. 570, 679 (2008)

(Stevens, J., dissenting) (“upon which substantial reliance has

been placed by legislators and citizens for nearly 70 years”).

Matched against the demands of stare decisis,

Casey has utterly failed to “ensure that the law will

not merely change erratically, but will develop in a

principled and intelligible fashion.” Vasquez, 474 U.S.

at 265. The continued confusion and turmoil since

Casey should dispel any notion that the Court can

settle the abortion issue and dispel any reasonable

expectation that Roe will remain the law. Overruling

Roe would “avoid the false modesty of adhering to a

precedent that seized power we do not possess in favor

of the truer modesty of ceding an ill-gotten gain.”

Nestlé USA, Inc. v. Doe, No. 19-416, slip. op. at 7 (U.S.

June 23, 2021) (Gorsuch, J., joined by Kavanaugh, J.,

concurring).

CONCLUSION

Because Roe v. Wade and Planned Parenthood v.

Casey are radically unsettled, the Court has no choice

but to reconsider them. Upon reconsideration,

applying the factors of stare decisis et quieta non

movere as this Court has done in Helvering, Allwright,

Adarand, Payne, Janus, Citizens United, and Knick,

Roe and Casey should be overruled.

Respectfully submitted,

Catherine Glenn Foster

Steven H. Aden

Clarke D. Forsythe

Counsel of Record

Katie Glenn

Natalie Hejran

AMERICANS UNITED FOR LIFE

1150 Connecticut Ave., NW

Suite 500

Washington, D.C. 20036

Clarke.Forsythe@aul.org

(202) 741-4919

July 29, 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.