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, STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

v.

JACKSON WOMEN'S HEALTH ORGANIZATION, ET AL.,

Respondents.

________________

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

________________

BRIEF OF AMICI CURIAE REP. STEVE

CARRA AND 320 STATE LEGISLATORS FROM

35 STATES IN SUPPORT OF PETITIONERS

________________

Matthew E. Gronda

Counsel of Record for Amici Curiae

Philip L. Ellison

P.O. Box 70

Saint Charles, Michigan 48655

Telephone: 989-249-0350

Email: matt@matthewgronda.com

Counsel for Amici Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Table of Authorities .................................................. ii

Interests of Amici Curiae ...........................................1

Summary of Argument ..............................................2

Argument ....................................................................2

I. Under this Court’s stare decisis analysis, Roe

should be overturned. ...........................................3

A. Roe is egregiously wrong. .................................4

B. Negative jurisprudential and real-world

consequences compel this Court to overturn

Roe. ...................................................................6

Roe as interpreted by Casey has proven

unworkable. ........................................6

ii. Roe and its progeny have politicized

this Court by forcing it to engage in

high-stakes constitutional litigation. ...12

iii. Roe and its progeny have undermined

the Constitution’s structure. .............17

i.

C. Overturning Roe will not inordinately upset

reliance interests. ..........................................19

II. Upon overturning Roe and its progeny, this Court

should assess state laws regulating abortion

under the rational basis standard. ...................20

Conclusion ................................................................23

Appendix ...................................................................1a

i

TABLE OF AUTHORITIES

Cases

American Med. Ass’n v. Cochran, 141 S. Ct. 1368

(2021) ........................................................................14

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997) ........................................................................16

Beal v. Doe, 432 U.S. 438 (1977) ..............................15

Box v. Planned Parenthood of Ind. and Ky., Inc, 139

S. Ct. 1780 (2019) ...............................................7,9,15

Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005) ...9

Crowley v. Christensen, 137 U.S. 86 (1890) ............21

Day-Brite Lighting Inc. v. Missouri, 342 U.S. 421

(1952) ........................................................................15

Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) ....14

EMW Women’s Surgical Center v. Friedlander, 978

F.3d 418 (6th Cir. 2020) ...........................................11

Evans v. Gore, 253 U.S. 245 (1920) .........................13

Gibbons v. Ogden, 22 U.S. 1 (1824) .........................22

Goldblatt v. Town of Hempstead, 369 U.S. 590

(1962) ........................................................................22

Goldfarb v. Va. State Bar, 421 U.S. 773 (1975) ......22

Gonzales v. Carhart, 550 U.S. 124 (2007) .... 8-9,20,22

Griswold v. Connecticut, 381 U.S. 479 (1965) ...........5

Harris v. McRae, 448 U.S. 297 (1980) .....................22

ii

Hill v. Colorado, 530 U.S. 703 (2000) ......................14

Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153

(1916) ........................................................................21

Jackson Whole Women’s Health Org. v. Dobbs, 945

F.3d 265 (5th Cir. 2019) ...........................................16

Jackson Women’s Health Org. v. Currier, 349 F. Supp.

3d 536 (S.D. Miss. 2018) ..........................................16

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

(2020) .....................................................................8,10

Maher v. Roe, 432 U.S. 464 (1977) ..........................15

Marbury v. Madison, 1 Cran. 137 (1803) ..................4

McCullen v. Coakley, 573 U.S. 464 (2014) ..............14

M’Culloch v. Maryland 17 U.S. 316 (1819) .............17

Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41

(1921) ........................................................................22

Montejo v. Louisiana, 556 U.S. 778 (2009) ..........7,12

Munn v. Illinois, 94 U.S. 113 (1876) .......................23

Nat’l Abortion Federation v. Gonzales, 437 F.3d 278

(2006) ..........................................................................9

Nat’l Inst. of Family and Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) ..............................................14

New State Ice Co. v. Liebmann, 285 U.S. 262

(1932) ........................................................................17

Ogden v. Saunders, 25 U.S. 213 (1827) ...................22

iii

Payne v. Tennessee, 501 U.S. 808 (1991) ....... 3,6-7,12

Pierce v. Society of the Sisters of the Holy Names of

Jesus and Mary, 268 U.S. 510 (1925) ........................4

Planned Parenthood Federation of America, Inc. v.

Gonzales, 435 F.3d 1163 (9th Cir. 2006) ...................9

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997

(7th Cir. 2018) .................................................... 10-11

Planned Parenthood of Ind. & Ky., Inc. v. Comm’ner

of Ind. Dep’t of Health, 917 F.3d 532 (7th Cir.

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

Planned Parenthood of Southeastern Pa. v. Casey, 505

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

Poelker v. Doe, 432 U.S. 519 (1977) .........................15

Prince v. Massachusetts, 321 U.S. 158 (1944) ...........4

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) .............3

Roe v. Wade, 410 U.S. 113 (1973) .................... passim

Skinner v. Oklahoma, 316 U.S. 535 (1942) ...............5

Smith v. Allwright, 321 U.S. 649 (1944) ............... 6-7

Stenberg v. Carhart, 530 U.S. 914 (2000) ............. 8-9

Washington v. Glucksberg, 521 U.S. 702

(1997) ........................................................... 5,21,22,23

Washington v. Harper, 494 U.S. 210 (1990) ..............5

West Coast Hotel Co. v. Parrish, 300 U.S. 379

(1937) ........................................................................21

iv

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292

(2016) ................................................................ passim

Williams v. Zbaraz, 448 U.S. 358 (1980) .................15

Winston v. Lee, 470 U.S. 753 (1985) ..........................5

Constitutional and Statutory Provisions

U.S. Const. amend. X .......................................4,17,21

U.S. Const. amend. XIV ......................................15,21

U.S. Const. Art. I, § 8 ...............................................17

Arkansas Human Heartbeat Protection Act, Ark.

Code Ann. §§ 20-16-1301 to 1307 (2013) ........... 13-14

Title XIX of the Social Security Act .........................15

Other Authorities

Brief for Amicus Curiae Illinois Right to Life in

Support of Petitioners, Dobbs v. Jackson Women’s

Health Organization, No. 19-1392 (U.S. Jul. 30,

2020) ...........................................................................6

The Federalist No. 11 ......................................... 17-18

The Federalist No. 14 ...............................................17

The Federalist No. 39 ...............................................21

The Federalist No. 45 ...............................................21

The Federalist No. 51 ...............................................17

Kaia Hubbard, A Guide to Abortion Laws by State,

U.S.

News

(Apr.

29,

2021),

https://www.

v

usnews.com/news/best-states/articles/a-guide-toabortion-laws-by-state .............................................14

Paul Benjamin Linton, The Legal Status of the Child

Under State Law, 6 U. St. Thomas J.L. & Pub. Pol’y

141 (2011) ...................................................................5

Joseph Story, 3 Commentaries on the Constitution §§

1900-01 .....................................................................21

vi

INTERESTS OF AMICI CURIAE 1

State legislatures exist to protect the health and

welfare of their state’s respective citizens. This

includes the creation of standards and regulations

that protect the most vulnerable in society. However,

as demonstrated by the Fifth Circuit’s decision below,

flawed precedent interferes with this constitutionally

delegated duty. Specifically, legislatures across the

country have enacted reasonable abortion regulations

with the intent of protecting the life and health of both

mothers and preborn children, yet these regulations

have regularly been struck down by this Court and

lower courts.

Amicus Curiae is a group of 321 legislators from 35

states 2 acting on behalf of their constituents (“State

Legislators”). Each asserts that the Constitution

delegates abortion legislation to the political

branches, and each seeks to make his or her voice, as

well as the voices of their constituents, heard before

this Court.

The State Legislators contend that the ruling in this

case will have far-reaching consequences for

legislatures across the country. In particular, it will

affect the State Legislators’ ability to propose, enact,

and defend future abortion legislation.

1 The parties to this action have filed blanket consents to the

submission of amicus briefs pursuant to this Court’s Rule

37.3(a). Further, and in compliance with Rule 37.6, amici state

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

part, and no person made any monetary contribution intended

to fund the preparation or submission of this brief.

2 See Appendix A.

1

For these reasons, the State Legislators have a

substantial and unique interest in the disposition of

the case that would be considerable help to the Court.

Rule 37.1. They now urge the Court to find

Mississippi’s

fifteen-week

abortion

ban

is

constitutional.

SUMMARY OF ARGUMENT

This Court should overturn Roe 3 because all three

prongs of the stare decisis analysis support

overturning the precedent: Roe is egregiously wrong,

it has caused negative jurisprudential and real-world

consequences, and overturning Roe will not

necessarily upset reliance interests. Once this Court

overturns Roe, it should apply rational basis to state

laws regulating abortion, as rational basis review

conforms to this Court’s precedent and the

Constitution’s structure. The application of rational

basis review would once again afford States their

proper constitutional role in protecting the health and

welfare of their citizens, empowering democraticallyelected state legislators, who are your amici, to make

considered policy decisions carefully crafted to protect

the life and health of both the mother and child.

ARGUMENT

The late Justice Scalia’s prediction in Casey has come

to fruition: The undue burden standard has proven to

be “inherently manipulable” and “hopelessly

unworkable in practice.” Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 986 (1992)

(Scalia, J., concurring in the judgment in part and

dissenting in part). This case provides the opportunity

3 Roe v. Wade, 410 U.S. 113 (1973)

2

to begin making a needed course correction. The State

Legislators urge this Court to do so.

I.

Under this Court’s stare decisis analysis,

Roe should be overturned.

While precedent warrants “our deep respect,” stare

decisis is not an “inexorable command.” Ramos v.

Louisiana, 140 S. Ct. 1390, 1405 (2020). This is

especially true of constitutional precedent because a

mistaken constitutional interpretation is often

“‘practically impossible’ to correct through other

means.” Id. (quoting Payne v. Tennessee, 501 U.S. 808,

828 (1991)).

Justice Kavanaugh, in a thorough review of precedent

that addresses stare decisis, articulated a three-prong

standard that should serve as this Court’s framework.

Id. at 1414-1415 (Kavanaugh, J., concurring). First,

the Court must assess whether the decision at issue

is “grievously or egregiously wrong.” Id. at 1414. This

inquiry includes an examination of the precedent’s

reasoning, consistency with other precedent, changed

law, and changed facts. Id. at 1414-1415. Second, the

Court should ask whether the precedent has “caused

significant negative jurisprudential or real-world

consequences.” Id. at 1415. This prong incorporates

workability as well as the “real-world effects on the

citizenry.” Id. The Court lastly must address reliance

interests—the “legitimate expectations of those who

have reasonably relied on the precedent.” Id.

The Ramos factors weigh against upholding Roe as

interpreted by Casey. Amicus State Legislators

expressly assert that Roe was and is egregiously

wrong. It is based on inadequate reasoning; it is at

odds with modern law; and it has been undermined

3

by modern science. Roe and its progeny have also

caused significant negative jurisprudential and realworld consequences, as this line of jurisprudence is

unworkable, has politicized the Court, and

undermined

the

Constitution’s

structure.

Additionally, overturning Roe will not unduly upset

reliance interests; on the contrary, overruling Roe and

its progeny will help stabilize the law.

A.

Roe is egregiously wrong.

First and foremost, Roe, as articulated by Casey, is not

supported by the Constitution’s text. It is the

“province and duty” of the judicial department to say

what the law is.” Marbury v. Madison, 1 Cran. 137,

177 (1803). But in “an exercise of raw judicial power,”

Roe, 410 U.S. at 222 (White, J., dis.), this Court

“discovered” the “right” to an abortion without any

grounding in the Constitution’s text. Id. at 152-153

(citing the First, Fourth, Fifth, Ninth, and Fourteenth

amendments). The power to regulate abortion,

however, is reserved to the States, not to this Court.

See U.S. Const. amend. X.

Apart from Roe’s atextual reading of the Constitution,

the precedents it relied upon do not support its

conclusion. While a generous reading of the “intimate

relations” cases could amount the recognition of a zone

of privacy, the Court has consistently subjected

regulation of rights within that category to rational

basis review. See, e.g., Prince v. Massachusetts, 321

U.S. 158 (1944); Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary, 268 U.S. 510 (1925).

Moreover, it stretches credulity to read the

“procreation” cases as providing substantial support

for Roe, as the holdings in those cases were based on

4

categorically different facts than those at issue in Roe.

See Skinner v. Oklahoma, 316 U.S. 535 (1942);

Griswold v. Connecticut, 381 U.S. 479 (1965). And the

“bodily integrity” cases cited by Casey not only present

factual and legally distinct issues, but their logic

undermines both Roe’s holding and Casey’s application

of the “undue burden” analysis. See Casey, 505 U.S. at

849 (citing, e.g., Washington v. Harper, 494 U.S. 210

(1990); Winston v. Lee, 470 U.S. 753 (1985)). 4

Additionally, Roe and its progeny are at odds with

modern law. In particular, modern regulation of the

medical profession in areas as intimate as pregnancy

has rendered Roe’s prohibition on pre-viability

abortion regulation a legal anomaly. See, e.g.,

Washington v. Glucksberg, 521 U.S. 702 (1997).

Similarly, other areas of the law such as tort and

contract have increasingly recognized the rights of

preborn children. See Paul Benjamin Linton, The

Legal Status of the Child Under State Law, 6 U. St.

Thomas J.L. & Pub. Pol’y 141 (2011).

Roe is also wrong on the science. As articulated by

Casey, “[t]he woman’s right to terminate her

pregnancy before viability is the most central

principle of Roe v. Wade.” 505 U.S. 833 at 871. The

Roe Court then chose “viability” because the body of

scientific knowledge then-known suggested “viability

marks the earliest point at which the State’s interest

in fetal life is constitutionally adequate to justify a

legislative ban on nontherapeutic abortions.” Casey,

505 U.S. at 860. Modern medicine, however, now

Many of these cases rely on this Court’s expansive twentieth

century, atextual substantive due process jurisprudence. To the

extent that Roe relied upon such cases, it built on a rotten foundation.

4

5

understands this to be inaccurate. See Brief for

Amicus Curiae Illinois Right to Life in Support of

Petitioners, Dobbs v. Jackson Women’s Health

Organization, No. 19-1392 (U.S. Jul. 30, 2020).

In sum, Roe’s holding is unsupported by the

Constitution’s text and this Court’s precedent. It has

also been undermined by developments in law and in

fact. Roe is thus egregiously wrong.

B.

Negative jurisprudential and realworld consequences compel this Court to

overturn Roe.

Nearly fifty years have passed since Roe “call[ed] the

contending sides of a national controversy to end their

national division by accepting a common mandate

rooted in the Constitution.” Casey, 505 U.S. at 867.

Yet national division over the issue of abortion

remains as implacable as ever. Pro-life advocates still

vehemently defend their position, and abortionadvocates fervently resist abortion regulation. But

such vigorous debate is not limited to the halls of state

government. No—this debate consistently spills

political vitriol upon this Court.

All told, fifty years of unworkability, high stakes

litigation, and constitutional subversion imposes

upon this Court to overturn Roe and return abortion’s

regulation to the legal arena where it belongs—in the

state legislatures.

i.

Roe as interpreted by Casey has proven

unworkable.

The Court has “never felt constrained to follow

precedent” that is unworkable. Payne, 501 U.S. at 827

(internal quotation marks omitted) (quoting Smith v.

6

Allwright, 321 U.S. 649, 655 (1944)); see also Montejo

v. Louisiana, 556 U.S. 778, 792 (2009). Fifty years

have proven the unworkability of this Court’s

abortion jurisprudence.

Casey rejected Roe’s trimester framework in favor of

the “undue burden” standard. In doing so, the Casey

plurality deprived Roe of all “principled or coherent

legal basis,” Casey, 505 U.S. at 987 (Scalia, J.,

concurring in part and dissenting in part),

condemning this Court’s abortion jurisprudence to a

state of chaos.

Out of the gate, the term “undue burden” is

ambiguous. Id. (Scalia, J., concurring in part and

dissenting in part). As the Casey plurality admitted,

members of the Court had already utilized the undue

burden test “in ways that could be considered

inconsistent.” Id. at 876. But the plurality’s attempt

to clarify “undue burden” just made matters worse,

defining this ambiguous term with another

ambiguous term: “substantial obstacle.” Id. at 877.

And this Court has since made precious little progress

in clarifying the standard.

For instance, the Court itself cannot agree on how the

standard should be applied. In the last five years

alone, only one majority opinion has garnered more

than five votes. See Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292 (2016) (a five-to-three

decision with one concurrence); Nat. Inst. of Family &

Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (a

five-to-four decision with one concurrence); Box v.

Planned Parenthood of Ind. and Ky., Inc, 139 S. Ct.

1780 (2019) (a per curiam opinion with one

concurrence, one concurrence in part, and one

7

dissent); June Medical Services LLC v. Russo, 140 S.

Ct. 2103 (2020) (a four-member plurality with one

concurrence in judgment). And all these cases came

over vigorous dissents. See, e.g., Hellerstedt, 136 S. Ct.

at 2230 (Alito, J., dis.) (joined by Roberts, C.J., and

Thomas, J.) (“[D]etermined to strike down two

provision of a new Texas abortion statute in all of

their applications, the Court simply disregards basic

rules that apply in all other cases.”); June Medical,

140 S. Ct. at 2153 (Alito, J., dis.) (joined by Gorsuch,

J., and in part by Thomas, J., and Kavanaugh, J.)

(“The divided majority cannot agree on what the

abortion right requires, but it nevertheless strikes

down a [law] that the legislature enacted for the

asserted purpose of protecting women’s health. To

achieve this end, the majority misuses the doctrine of

stare decisis, invokes an inapplicable standard of

appellate review, and distorts the record.”).

This Court’s partial birth abortion ban jurisprudence

demonstrates the difficulty of applying the undue

burden standard. The statute at issue in Stenberg v.

Carhart, 530 U.S. 914 (2000) prohibited partial birth

abortions except when necessary to save the mother’s

life. In a five-to-four decision, this Court rejected the

statute because (a) it lacked a health exception, id. at

937-938, and (b) its language covered not just the less

common dilation and extraction procedure (D & X),

but also the more common dilation and evacuation

procedure (D & E), id. at 939. Just seven years later,

this Court analyzed the federal Partial-Birth

Abortion Ban Act of 2003 in Gonzales v. Carhart, 550

U.S. 124 (2007). That law, like the one at issue

Stenberg, prohibited partial birth abortions, including

D & E. Id. at 147. But because the law was deemed

8

“more specific” than that at issue in Stenberg and

included a health exception, a simple five-to-four

majority upheld the law. Id. at 132.

The State Legislators believe that both lower courts

and legislatures can be excused if they view the

practical differences between these cases negligible.

After all, three district courts and three circuit courts

could not distinguish the cases. See Carhart v.

Gonzales, 413 F.3d 791 (8th Cir. 2005) (relying on

Stenberg to strike down the federal law); Planned

Parenthood Federation of America, Inc. v. Gonzales,

435 F.3d 1163 (9th Cir. 2006) (same); Nat’l Abortion

Federation v. Gonzales, 437 F.3d 278 (2006) (same).

Disagreement also exists about when this standard

applies. For instance, this Court in Box applied

rational basis to a law regulating fetal remains. 139

S. Ct. at 1782. At least one justice, however, would

have applied Hellerstedt’s undue burden standard.

See id. at 1793 (Ginsburg, J., concurring in part)

(suggesting that the Court should have applied

Hellerstedt’s undue burden standard); see also id. at

1782 (noting that Justice Sotomayor would have

denied certiorari, leaving in place the Seventh

Circuit’s holding that rejected the law under rational

basis review). 5

But what may be worse than this unpredictability in

application is the fact that this Court cannot even

The plaintiffs conceded that the disposal provision did not

implicate fundamental rights and therefore should be reviewed

under rational basis. Planned Parenthood of Ind. & Ky., Inc. v.

Comm’ner of Ind. Dep’t of Health, 917 F.3d 532 (7th Cir. 2018)

(Wood, Chief Judge, concurring in denial of rehearing en banc).

Chief Judge Wood suggested that this litigation strategy was a

mistake, id. at 534, one future plaintiffs will surely not make.

5

9

agree on what the standard is. In Casey, the plurality

suggested that, when assessing laws under the undue

burden standard, the Court should look to whether

the regulation “has the purpose or effect of placing a

substantial obstacle in the path of a woman seeking

an abortion of a nonviable fetus.” 505 U.S. at 877. But

in Hellerstedt, the five-member majority applied a

balancing test that weighed the law’s “asserted

benefits against the burdens.” 136 U.S. at 2310. Four

years later, in June Medical, a four-justice plurality

repeated this standard, 140 S. Ct. at 2112, but five

justices—one concurring in judgment and four

dissenting—explicitly rejected this balancing. See id.

at 2135-2136 (Roberts, C.J., concurring in

judgement); id. at 2154 (Alito, J., dis.) (noting that

Hellerstedt “should be overruled insofar as it changed

the Casey test”).

This ambiguity has a profound effect on lower courts

and state legislatures. When faced with a piece of

challenged legislation, they must wrestle with Casey’s

(and now Hellerstedt’s and June Medical’s) hopelessly

ambiguous terms, resulting in disparate conclusions

among the circuits and constant appeals to this Court.

See June Medical, 2179 (Gorsuch, J., concurring)

(“Some judges have thrown up their hands at the task

put to them by the Court in this area.”). As Judge

Easterbrook noted:

The ‘undue burden’ approach announced

in [Casey] does not call on a court of

appeals to interpret a text. Nor does it

produce a result through interpretation

of the Supreme Court’s opinions. How

much burden is ‘undue’ is a matter of

judgment, which depends on what the

10

burden would be . . . and whether that

burden is excessive. Only the Justices,

the proprietors of the undue-burden

standard, can apply it to a new category

of statute. Planned Parenthood of Ind. &

Ky. v. Box, 949 F.3d 997, 999 (7th Cir.

2018) (Eastbrook, J., concurring).

The recent Sixth Circuit case EMW Women’s Surgical

Center v. Friedlander, 978 F.3d 418 (6th Cir. 2020)

demonstrates a similar struggle to ascertain and

apply the test that this Court has created. Id. at 433

(suggesting that Chief Justice Robert’s opinion in

June Medical was controlling and therefore Casey’s

standard applied); id. at 448 (Clay, circuit judge, dis.)

(accusing the majority of “openly disregard[ing]” this

Court’s standard of review, “condon[ing] the

evisceration of the constitutional right to abortion

access in Kentucky”).

Beyond the courts, the ambiguity and unworkability

inherent in Roe as applied by Casey leaves

legislatures, women, and abortion providers with

uncertainty and doubt. When a legislature acts on its

“important and legitimate interest” in protecting

preborn life, it cannot be sure that the law will pass

muster unless the statute falls well within the

boundaries of this Court’s precedent. See Hellerstedt,

136 U.S. at 2326 (Thomas, J., dis.) (“[T]he majority

seriously burdens States, which must guess at how

much more compelling their interests must be to pass

muster and what ‘commonsense inferences’ of an

undue burden this Court will identify next.”).

Moreover, women who seek an abortion and abortion

providers cannot be certain whether courts will

uphold new abortion regulations. Thus, women

11

contemplating an abortion are rushed to a decision

whenever a state legislature prepares to pass

abortion restrictions or a district court enjoins a

newly minted law. And abortion providers cannot

know whether they should alter their practice in

conformance with new law or if they should wait and

see what the courts do. For instance, this Court found

the law at issue in Hellerstedt—one that the Court

would ultimately strike down—led to the closure of

half of Texas’ abortion clinics.

The fact that this Court cannot consistently agree on

how the standard applies, when the standard applies,

or even what standard applies demonstrates the clear

unworkability of Roe as applied by Casey. And, to put

it frankly, if this Court cannot come to some sort of

consensus, why should it expect lower courts,

legislatures, abortion providers, and women to do the

same? Justice Scalia’s prediction in Casey came

true—the undue burden standard is “inherently

manipulable” and “hopelessly unworkable in

practice.” 505 U.S. at 986. This Court is not required

to adhere to such an ineffectual precedent. Payne, 501

U.S. at 827 (1991); see also Montejo, 556 U.S.at 792.

ii.

Roe and its progeny have politicized this

Court by forcing it to engage in highstakes constitutional litigation.

Year in and year out, the American people hold their

collective breath as this Court decides upon the

newest challenge to abortion legislation. In fact, since

Roe, this Court has decided forty-one cases that

involve abortion amounting to just under one per

year. In deciding these cases, this Court has regularly

placed itself in an adverse position to the States and,

12

by extension, to the People of those States. Moreover,

debates over abortion have consistently dragged this

Court into the morass of other sensitive areas of

constitutional law. And the Court has become

increasingly fractured over the issue. The result? This

Court is becoming unnecessarily politicized. To stem

the tide of this institutional damage, the Court should

overturn Roe.

“[T]he judiciary is beyond comparison the weakest of

the three departments of power.” Evans v. Gore, 253

U.S. 245, 250 (1920). Judges are unelected, and they

have “neither force nor will, but merely judgment.” Id.

Consequently, judicial review is a grave task. For

when this Court strikes down a statute, it strikes

down the will of the majority and effectively removes

the issue from the democratic arena. Thus, while

judicial review is unquestionably part of the

American system of government, it can cause

significant friction between the judiciary and

legislative bodies. This is especially true when the

Court reviews laws under its substantive due process

jurisprudence. See Casey, 505 U.S. at 1000 (Scalia, J.,

concurring in part and dissenting in part) (suggesting

that “what the [Casey majority] call[ed] ‘reasoned

judgement’” “turns out to be nothing but philosophical

predilection and moral intuition”).

By removing the issue of pre-viability abortion

regulation from the democratic sphere, Roe has

created unhelpful tension. Some state regulations

have inadvertently run afoul of Casey’s “undue

burden” standard. See, e.g., Hellerstedt, 136 S. Ct. at

2292. Other States have attempted to push the

bounds of Roe. See, e.g., Arkansas Human Heartbeat

Protection Act, Ark. Code Ann. §§ 20-16-1301 to 1307

13

(2013) (preventing abortions where the preborn child

has a detectable heartbeat) (permanently enjoined by

Edwards v. Beck, 786 F.3d 1113, 1115 (8th Cir. 2015)).

Yet one thing remains consistent: States desire to

regulate abortion. And States that do regulate

abortion 6 are in constant conflict with the judiciary.

In fact, of twenty-six cases that asked this Court to

review state abortion regulations, half struck down

all or part of the State legislation.

But the discomforting pressure on this Court caused

by Roe and its progeny does not end at the review of

abortion regulations. Instead, abortion has forced this

Court into other sensitive constitutional areas such as

freedom of speech, equal protection, and federal-state

relations. For instance, because “the public spaces

outside of [abortion-providing] facilities . . . ha[ve]

become, by necessity and by virtue of this Court’s

decisions, a forum of last resort” for pro-life advocates,

Hill v. Colorado, 530 U.S. 703, 763 (2000) (Scalia, J.,

dis.), states have implemented laws restricting speech

near such facilities, requiring this Court to adjudicate

the constitutionality of such laws under the first

amendment. Compare Hill, 530 U.S. 703 (2000) with

McCullen v. Coakley, 573 U.S. 464 (2014); see also

Nat’l Inst. of Family and Life Advocates v. Becerra,

138 S. Ct. 2361 (2018). Even this term, the Court had

a pending First Amendment case involving abortion.

American Med. Ass’n v. Cochran, 141 S. Ct. 1368

(2021) (granting cert.)

6 See Kaia Hubbard, A Guide to Abortion Laws by State, U.S.

News (Apr. 29, 2021), https://www.usnews.com/news/beststates/articles/a-guide-to-abortion-laws-by-state.

14

Roe’s recognition of a right to abortion has also

spawned equal protection challenges to various state

and federal laws. The plaintiffs in Poelker v. Doe, 432

U.S. 519 (1977), for example, contended that a city’s

refusal to provide nontherapeutic abortions while

providing services for childbirth violated the

Fourteenth Amendment’s Equal Protection Clause.

Id. at 520. The Court rejected this challenge. Id. at

521-522; see also Maher v. Roe, 432 U.S. 464 (1977)

(rejecting an equal protection challenge to a state law

prohibiting funding for nontherapeutic abortions

while providing funding for pregnancies); Box, 139 S.

Ct. at 1782 (denying review of the Seventh Circuit’s

rejection of a state law prohibiting abortions based on

the sex, race, or disability of the preborn child). And

congressional

abortion

legislation—navigating

among Roe, federalism, and the Bill of Rights—has

brought cases to this Court that implicate complex

federal-and-state relations. See, e.g., Beal v. Doe, 432

U.S. 438, 440 (1977) (holding that Title XIX of the

Social Security Act did not require participating

States to fund nontherapeutic abortions); see also

Williams v. Zbaraz, 448 U.S. 358 (1980).

Because Roe has forced this Court to essentially sit as

a “super-legislature to weigh the wisdom” of abortion

legislation, see Day-Brite Lighting Inc. v. Missouri,

342 U.S. 421, 423 (1952), this Court has become

increasingly politicized. No longer can citizens resort

to their elected representatives. Instead, they must

turn solely to this Court through marches, mail, and

protests “aimed at inducing [this Court] to change

[its] opinions.” Casey, 505 U.S. at 999 (Scalia, J.,

concurring in part and dissenting in part). Lawyers

speculate as to how the Court will handle the next

15

abortion case. The media declares certain Justices to

be “Republican” or “Democrat” and questions whether

judicial nominees will pass or fail the abortion litmus

test. Presidential candidates campaign on appointing

justices who will overturn or uphold Roe. Politicians

even argue that the Court should be packed. And

every abortion case decided increases the hostilities

between the pro-life and pro-choice camps. 7

In short, “[n]ot only did Roe not . . . resolve the deeply

divisive issue of abortion; it did more than anything

else to nourish it.” Casey, 505 U.S. at 995 (Scalia, J.,

concurring in part and dissenting in part). This Court

should overturn Roe and return the debate back to the

People and their legislators.

The rhetoric from some federal courts has increased this

politicization. Without evidence, the District Court Judge below

suggested that Mississippi was “bent on controlling women and

minorities” and accused the State of “pure gaslighting.” Jackson

Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 fn.22

(S.D. Miss. 2018). Such blatant bias and “disrespect for the

millions of Americans who believe that babies deserve legal

protection during pregnancy as well as after birth” reflects

poorly upon the entire judiciary and should be condemned by

this Court. Jackson Whole Women’s Health Org. v. Dobbs, 945

F.3d 265, 278 (5th Cir. 2019) (Ho, J., concurring); Arizonans for

Official English v. Arizona, 520 U.S. 43, 75 (1997) (“When

anticipatory relief is sought in federal court against a state

statute, respect for the place of the States in our federal system

calls for close consideration of that core question.”).

7

16

iii.

Roe and its progeny have undermined

the Constitution’s structure.

This Court’s abortion jurisprudence has also

subverted the structure of the American Constitution.

The Founders formed a constitutional republic.

Specifically, while the People remain sovereign, they

divided power both vertically and horizontally. The

Constitution thus splits our government into one

federal government and many state governments.

The Federalist No. 51, 320 (James Madison). Both

levels of government are divided into three separate

departments, and all departments at each level are

subject to restraints contained in the federal

Constitution; the state departments are also subject

to restraints included within their respective state

constitutions. The federal government then received

certain enumerated powers, see, e.g., U.S. Const. Art.

I, § 8; M’Culloch v. Maryland 17 U.S. 316, 405 (1819);

see also The Federalist No. 14 (James Madison)

(noting that the jurisdiction of the federal government

extends to those matters that “concern all the

members of the republic, but which are not to be

attained by the separate provisions of any”), while the

States retained plenary authority, see U.S. Const.

Amend. X; The Federalist No. 14, at 97 (James

Madison) (noting that state power extends “to all

those other objects which can be separately provided

for”).

Because of their much broader authority, the

Founders intended the States to serve as laboratories

of democracy. See New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932). In fact, Alexander Hamilton in

Federalist No. 11 lists this as an advantage of the

Constitution: Relegation of the most sensitive

17

subjects to the States diffuses tensions at the national

level and allows States to resolve such issues in

unique ways. See The Federalist No. 11, at 79

(Alexander Hamilton).

States embraced this power for one hundred and fifty

years, regulating abortion to varying degrees and

making different value judgments regarding the

health of mothers and the lives of preborn children.

See supra. Then the Court decided Roe.

Roe elevated abortion from a state-based debate “to

the national level where it is infinitely more difficult

to resolve.” Casey, 505 U.S. at 995 (Scalia, J.,

concurring in part and dissenting in part). If only the

Court stopped there. Instead, Roe made this Court the

sole arbiter of abortion regulation, “destroy[ing]

compromises of the past, render[ing] compromise

impossible for the future, and requir[ing] the entire

issue to be resolved uniformly.” Id.

Late Justice Antonin Scalia described the situation

best:

[B]y foreclosing all democratic outlet for

the deep passions this issue arouses, by

banishing the issue from the political

forum that gives all participants, even

the losers, the satisfaction of a fair

hearing and an honest fight, by

continuing the imposition of a rigid

national rule instead of allowing for

regional differences, the Court merely

prolongs and intensifies the anguish.

18

Casey, 505 U.S. at 1002 (Scalia, J., concurring in part

and dissenting in part). To restore our constitutional

order, this Court must overturn Roe.

A half-century has passed since this Court decided

that individuals have a fundamental right to an

abortion before the point of viability. And for a halfcentury, Supreme Court Justices, lower court judges,

legislatures, and citizens have registered their

disagreement with this precedent. See, e.g., Casey,

505 U.S. 833, 944 (Rehnquist, J., concurring in part)

(joined by White, J., Scalia, J., Thomas, J.) (“We

believe that Roe was wrongly decided); June Medical,

140 S. Ct. 2103, 2149 (Thomas, J., dis.) (“[T]he

putative right to abortion is a creation that should be

undone.”); id. at 2154 (Alito, J., dis.) (joined by

Gorsuch, J., and in part by Thomas, J., and

Kavanaugh, J.) (“Unless Casey is reexamined . . . the

test it adopted should remain the governing

standard.”). Roe has proven unworkable, but, perhaps

more importantly, it has politicized and delegitimized

this Court while simultaneously undermining the

foundations of our Republic. Such negative

jurisprudential and real-world consequences counsel

this court to overturn Roe.

C.

Overturning

Roe

will

not

inordinately upset reliance interests.

Finally, reliance interests cannot sustain Roe and its

progeny, as the precedents’ unworkability has

systematically undermined reliance interests of both

public and private actors. State legislatures cannot

rely on Roe as interpreted by Casey when developing

abortion regulations, as the undue burden standard

puts even sensible regulations for the health and

19

safety of the mother on tenuous ground. See, e.g.,

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

2292 (striking down a law requiring physicians

performing abortions to have admitting privileges at

a hospital located no more than thirty miles away

from where the abortion is performed). Women who

seek an abortion are forced to make hasty decisions

as courts enjoin and overrule one another. See, e.g.,

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

injunctions established by the Eighth and Ninth

Circuits). And abortion providers must decide

whether to implement new regulations or wait for the

courts. Consequently, reliance interests are few.

To summarize, all three stare decisis factors compel

this Court to overturn Roe and its progeny. Roe is

egregiously wrong, as its reasoning is inadequate and

it has been undermined by modern law and new facts.

Moreover, Roe has caused negative jurisprudential

and real-world consequences: The precedent is

unworkable, has politicized this court, and has

undermined our Nation’s constitutional structure.

Lastly, reliance interests are minimal. This Court

should overturn Roe and its progeny.

II.

Upon overturning Roe and its progeny,

this Court should assess state laws regulating

abortion under the rational basis standard.

Upon reversing Roe, this Court must decide the

appropriate constitutional standard to review

abortion legislation going forward. The State

Legislators urge that rational basis review best

conforms with both the Constitution and this Court’s

precedents.

20

The Founders created a constitution that is neither

wholly national nor wholly federal, but a composition

of both. The Federalist No. 39, 242 (James Madison).

Under this design, the Founders reserved to the

states a power that “extend[s] to all the objects, which,

in the ordinary course of affairs, concern the lives,

liberties and properties of the people; and the internal

order, improvement, and prosperity of the State.” The

Federalist No. 45, 289 (James Madison); see also The

Federalist No. 39, 242 (Madison). The Nation then

enshrined this principle in the Tenth Amendment.

See Joseph Story, 3 Commentaries on the Constitution

§§ 1900-01.

The Fourteenth Amendment did not upend this

arrangement. Instead, it secured to all Americans the

equal protection of the law and extended federal

protection to rights “deeply rooted in this Nation’s

history and tradition, or implicit in the concept of

ordered liberty such that neither liberty nor justice

would exist if they were sacrificed.” Washington v.

Glucksberg, 521 U.S. 702, 720-721 (1997). So long as

a State does not run afoul of its state constitution or

the federal Constitution, it may still exercise its police

power over a wide range of subjects touching upon the

public’s health and welfare. See West Coast Hotel Co.

v. Parrish, 300 U.S. 379 (1937); see also Crowley v.

Christensen, 137 U.S. 86, 89 (1890).

In consequence, this Court has upheld regulations as

mundane as the prohibition of oleomargarine, Powell

v. Pennsylvania, 127 U.S. 678 (1888), and a ban on ice

cream without specific proportions of butter fat,

Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153

(1916). This power, however, equally extends to much

weightier objects such as the regulation of drugs, see,

21

e.g., Minnesota ex rel. Whipple v. Martinson, 256 U.S.

41 (1921), the regulation of the medical profession,

see, e.g., Gonzales, 550 U.S. at 157; Goldfarb v. Va.

State Bar, 421 U.S. 773, 791 (1975), and the

regulation of medical procedures, see, e.g.,

Glucksberg, 521 U.S. at 735 (1997), see also Gibbons

v. Ogden, 22 U.S. 1, 78 (1824).

From the early days of the Republic, this Court has

applied a “rational basis” standard of review to such

regulations. See Ogden v. Saunders, 25 U.S. 213, 270

(1827) (“It is but a decent respect due to the wisdom,

the integrity, and the patriotism of the legislative

body, by which any law is passed, to presume in

favour of its validity, until its violation of the

[C]onstitution is proved beyond all reasonable

doubt.”). Since then, the test traditionally applied in

the area of social and economic legislation is whether

or not a law has a rational relation to a valid state

objective. See Goldblatt v. Town of Hempstead, 369

U.S. 590, 595-596 (1962).

The power to regulate abortion falls squarely into

States’ police powers. In fact, the power to regulate

abortion did fall squarely into this design for one

hundred and fifty years leading up to Roe. At its core,

abortion is a medical procedure that involves the

death of a preborn child and potential harm to the

mother. The Constitution has delegated the task of

balancing such “considerations of marginal safety,”

Gonzales, 550 at 166, and competing interests, see

Harris v. McRae, 448 U.S. 297, 325-326 (1980);

22

Glucksberg, 521 U.S. at 735, to the States, not to the

federal judiciary. 8

The application of rational basis review would once

again afford States their proper constitutional role in

protecting the health and welfare of their citizens,

empowering democratically elected state legislatures

to make considered policy decisions carefully crafted

to protect the life and health of both the mother and

child. If citizens in turn disagree with these decisions,

they “must resort to the polls, not to the courts.”

Munn v. Illinois, 94 U.S. 113, 134 (1876).

CONCLUSION

The State Legislators are duty bound to protect life

within their respective states. That duty compelled

the citizens of Mississippi, through their elected

representatives, to enact a fifteen-week abortion ban.

Preventing the enforcement of that duly enacted

legislation is the now demonstratively erroneous Roe.

Roe should not be overturned for political reasons; it

should be overturned because all three prongs of the

stare decisis analysis support overturning the

precedent. First, advancements in science now

demonstrate the core premise of Roe, that preborn

humans are mere potential life, is egregiously wrong.

Second, Roe has caused often dramatic negative

jurisprudential and real-world consequences. Third,

the overturning of Roe will not necessarily upset

reliance interests. Once this Court overturns Roe, it

should apply rational basis to state laws regulating

As Chief Justice Rehnquist noted in his Roe dissent, the

rational basis test would still require legislation to contain a “life

of the mother” exception. Roe, 410 U.S. at 173.

8

23

abortion, as rational basis review conforms to this

Court’s precedent and the Constitution’s structure.

This Court now has the chance to right a

constitutional, precedential, and historical wrong.

The ability of the State Legislators to perform their

duty depends on it. For this reason, this Court should

reverse the judgment of the Fifth Circuit.

Respectfully submitted,

Matthew E. Gronda

Counsel of Record for Amici Curiae

Philip L. Ellison

P.O. Box 70

Saint Charles, Michigan 48655

Telephone: 989-249-0350

Email: matt@matthewgronda.com

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