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, IN HIS OFFICIAL CAPACITY AS
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 FOR THE AMERICAN COLLEGE OF
PEDIATRICIANS AND THE ASSOCIATION OF
AMERICAN PHYSICIANS & SURGEONS
AS AMICI CURIAE IN SUPPORT OF
PETITIONERS
__________
CHRISTOPHER E. MILLS
Counsel of Record
Spero Law LLC
1050 Johnnie Dodds Blvd. #83
Mt. Pleasant, SC 29465
(843) 606-0640
cmills@spero.law
Counsel for Amici Curiae
QUESTION PRESENTED
Whether all pre-viability prohibitions on elective
abortions are unconstitutional.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE .................................1
SUMMARY OF THE ARGUMENT ............................2
ARGUMENT ................................................................5
I.
Roe and Casey relied on limited information
about prenatal development. ............................5
II. Scientific knowledge has overtaken Roe and
Casey. ...............................................................10
III. The Court’s abortion jurisprudence should
account for these advances in scientific
knowledge. .......................................................26
CONCLUSION ..........................................................30
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Colautti v. Franklin, 439 U.S. 379 (1979) .................26
District of Columbia v. Heller, 554 U.S. 570 (2008) ...1
Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970) ......5
Doe v. Bolton, 410 U.S. 179 (1973) .............. 4–5, 26, 30
Gonzales v. Carhart, 550 U.S. 124 (2007) ........... 16, 30
Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012) ..............4
June Med. Servs. LLC v. Russo, 140 S. Ct. 2103,
(2020) .......................................................... 4, 28–29
MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th
Cir. 2015) ........................................................ 17, 29
Planned Parenthood Minn., N.D., S.D. v. Rounds,
530 F.3d 724, 736 (8th Cir. 2008) (en banc) ........11
Planned Parenthood of Cent. Mo. v. Danforth, 428
U.S. 52 (1976) ................................................... 4, 26
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833
(1992) ................................................ 2, 9–10, 23, 26
Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) ......5
Roe v. Wade, 410 U.S. 113
(1973) .......................................... 2, 4–5, 7–8, 25–28
Shelby County v. Holder, 570 U.S. 529 (2013) ...... 4, 27
iv
Stenberg v. Carhart, 530 U.S. 914 (2000) ...................1
Tex. Med. Providers Performing Abortion Servs. v.
Lakey, 667 F.3d 570 (5th Cir. 2012) ......................9
Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747 (1986) ......................27
Webster v. Reprod. Health Servs., 492 U.S. 490
(1989) ....................................................................27
OTHER LEGAL AUTHORITIES
Antonin Scalia, The Rule of Law as a Law of Rules,
56 U. Chi. L. Rev. 1175 (1989) .............................29
Brief for Appellant, Roe v. Wade, 410 U.S. 113 (1973)
(No. 70-18), 1971 WL 128054 .............................2, 8
Brief for Petitioners & Cross-Respondents, Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833
(1992) (Nos. 91-744, 91-902), 1992 WL
12006398 ...............................................................10
Brief for the States of New York et al. as Amicus
Curiae Supporting Appellant, Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833
(1992) (Nos. 91-744, 91-902), 1992 WL
12006406 ...............................................................10
Brief for Women for the Unborn as Amicus Curiae
Supporting Appellee, Roe v. Wade, 410 U.S. 113
(1973) (No. 70-18), 1971 WL 134284 ...................30
The Federalist No. 78 (A. Hamilton) (J. Cooke ed.
1961)......................................................................28
v
Clarke D. Forsythe & Bradley N. Kher, A Road Map
Through the Supreme Court’s Back Alley, 57 Vill.
L. Rev. 45 (2012) .................................................5–6
David F. Forte, Life, Heartbeat, Birth: A Medical
Basis for Reform, 74 Ohio. St. L.J. 121
(2012) ................................................................ 6, 12
Linda Greenhouse, Becoming Justice Blackmun:
Harry Blackmun’s Supreme Court Journey
(2005) ............................................................5–7, 29
Maureen L. Condic, When Does Human Life Begin?
The Scientific Evidence and Terminology
Revisited, 8 U. St. Thomas J.L. & Pub. Pol’y 44
(2013) ....................................................................28
Nan D. Hunter, Justice Blackmun, Abortion, and the
Myth of Medical Independence, 72 Brook. L. Rev.
147 (2006) ...............................................................6
Planned Parenthood, “Plan Yc” Children for Health
and Happiness (1963) ...........................................30
Tinsley E. Yarbrough, Harry A. Blackmun: The
Outsider Justice (2008) ..........................................7
SCIENTIFIC AUTHORITIES
Alessandra Pionetelli, Development of Normal Fetal
Movements: The First 25 Weeks of Gestation
(2010) ...................................... 13, 15–16, 20–22, 24
Am. Coll. of Obstetricians & Gynecologists et al.,
Committee Opinion Number 700: Methods for
Estimating the Due Date (May 2017), available at
https://www.acog.org/-/media/project/acog/acogorg/
vi
clinical/files/committee-opinion/
articles/2017/05/methods-for-estimating-the-duedate.pdf [https://perma.cc/8T5C-9NVC] (last
visited July 28, 2021) ...........................................29
Am. Coll. of Pediatricians, Fetal Pain: What is the
Scientific Evidence? (Jan. 2021), available at
https://acpeds.org/position-statements/fetal-pain
[https://perma.cc/JM3T-XQV8] (last visited July
28, 2021)................................................................14
Am. Coll. of Pediatricians, When Human Life Begins
(Mar. 2017), available at https://acpeds.org/
position-statements/when-human-life-begins
[https://perma.cc/Z9W5-UN9T] (last visited July
28, 2021)................................................................11
Am. Inst. of Ultrasound in Med., AIUM-ACR-ACOGSMFM-SRU Practice Parameter for the
Performance of Standard Diagnostic Obstetric
Ultrasound Examinations, 37 J. Ultrasound Med.
E13 (2018) ...............................................................9
Antti Holsti et al., Two-Thirds of Adolescents who
Received Active Perinatal Care After Extremely
Preterm Birth Had Mild or No Disabilities, 105
Acta Paediatrica 1288 (2016) ...............................24
Carlo V. Bellieni, Analgesia for Fetal Pain During
Prenatal Surgery: 10 Years of Progress, 89
Pediatrics Rsch. 1612 (2021) ................................19
Carlo V. Bellieni et al., Use of Fetal Analgesia During
Prenatal Surgery, 26 J. Maternal-Fetal Neonatal
Med. 90 (2013) ......................................................19
vii
Carlo V. Bellieni & Giuseppe Buonocore, Is Fetal
Pain a Real Evidence?, 25 J. Maternal-Fetal &
Neonatal Med. 1203 (2012) ..................................15
Cleveland Clinic, Fetal Development: Stages of
Growth (last updated Apr. 16, 2020), available at
https://my.clevelandclinic.org/health/articles/7247fetal-development-stages-of-growth [https://
perma.cc/YG92-KRH4] (last visited July 28,
2021)................................................................21, 24
Curtis L. Lowery et al., Neurodevelopmental Changes
of Fetal Pain, 31 Seminars Perinatology 275
(2007) ....................................................................14
Endowment for Hum. Dev., The Heart in Action: 4
Weeks, 4 Days, available at https://www.ehd.org/
movies/21/The-Heart-in-Action
[https://perma.cc/GQN4-Q8QS] (last visited July
28, 2021)................................................................12
Endowment for Hum. Dev., Your Life Before Birth
(Mar. 18, 2019), available at https://vimeo.com/
325006095 [https://perma.cc/6QBT-UWLK] (last
visited July 28, 2021) ...........................................12
Hikohiro Okawa et al., Eye Movement Activity in
Normal Human Fetuses Between 24 and 39 Weeks
of Gestation, 12 PLOS One, July 2017,
e0178722 ...............................................................25
Int’l Ass’n for the Study of Pain, IASP Terminology
(last updated Dec. 14, 2017), available at
https://www.iasp-pain.org/Education/Content.aspx
?ItemNumber=1698#Nociception
[https://perma.cc/5PV5-5T9H] (last visited July
28, 2021)................................................................14
viii
Irina Bystron et al., Tangential Networks of
Precocious Neurons and Early Axonal Outgrowth
in the Embryonic Human Forebrain, 25 J.
Neuroscience 2781 (2005) ....................................12
Joe Leigh Simpson, Low Fetal Loss Rates After
Ultrasound Proved-Viability in First Trimester,
258 J. Am. Med. Ass’n 2555 (1987) ......................12
John C. Achermann & Larry Jameson, Disorders of
Sex Development, in Harrison’s Principles of
Internal Medicine (Dan L. Longo et al. eds., 18th
ed. 2012) ................................................................11
John D. Lantos & William Meadow, Variation in the
Treatment of Infants Born at the Borderline of
Viability, 123 Pediatrics 1588 (2009) ..................24
Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 12, available at https://
www.hopkinsallchildrens.org/PatientsFamilies/Health-Library/HealthDocNew/Week12?id=13484 [https://perma.cc/32GP-WZYX] (last
visited July 28, 2021) ...........................................17
Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 15, available at https://
www.hopkinsallchildrens.org/PatientsFamilies/Health-Library/HealthDocNew/Week15?id=13484 [https://perma.cc/62JP-CXL3] (last
visited July 28, 2021) ...........................................20
Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 19, available at https://
www.hopkinsallchildrens.org/PatientsFamilies/Health-Library/HealthDocNew/Week-
ix
19?id=13484 [https://perma.cc/7TWV-GS24] (last
visited July 28, 2021) ...........................................22
Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 22, available at https://
www.hopkinsallchildrens.org/PatientsFamilies/Health-Library/HealthDocNew/Week22?id=13484 [https://perma.cc/7VR8-2LFX] (last
visited July 28, 2021) ...........................................23
Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 26, available at https://
www.hopkinsallchildrens.org/PatientsFamilies/Health-Library/HealthDocNew/Week26?id=13484 [https://perma.cc/A8QG-XBPA] (last
visited July 28, 2021) ...........................................25
Johns Hopkins Med., The First Trimester, available
at https://www.hopkinsmedicine.org/
health/wellness-and-prevention/the-first-trimester
[https://perma.cc/8N6H-M6CN] (last visited July
28, 2021)................................................................14
Johns Hopkins Med., The Second Trimester,
available at
https://www.hopkinsmedicine.org/health/wellnessand-prevention/the-second-trimester
[https://perma.cc/M7WA-6PC5] (last visited July
28, 2021).......................................................... 20–21
Kaashif A. Ahmad et al., Two-Year
Neurodevelopmental Outcome of an Infant Born at
21 Weeks’ 4 Days’ Gestation, 140 Pediatrics, Dec.
2017, e20170103, available at https://pediatrics.
aappublications.org/content/140/6/e20170103
[https://perma.cc/D9UR-KHDU] (last visited July
28, 2021).......................................................... 10, 23
x
Kanwaljeet S. Anand & Paul R. Hickey, Special
Article, Pain and Its Effects in the Human
Neonate and Fetus, 317 New Eng. J. Med. 1321
(1987) ....................................................................13
Katrin Mehler et al., Survival Among Infants Born at
22 or 23 Weeks’ Gestation Following Active
Prenatal and Postnatal Care, 170 J. Am. Med.
Ass’n Pediatrics 671 (2016) ..................................23
Kavita Narang et al., Developmental Genetics of the
Female Reproductive Tract, in Human
Reproductive and Prenatal Genetics (Peter C. K.
Leung & Jie Qiao eds., 2019) ...............................22
Keith L. Moore & T.V.N. Persaud, The Developing
Human: Clinically Oriented Embryology (7th ed.
2003)..................................................................8, 11
Keith L. Moore et al., The Developing Human EBook: Clinically Oriented Embryology (Kindle ed.
2020)................................................................11–12
Keith L. Moore et al., The Developing Human:
Clinically Oriented Embryology
(11th ed. 2020) .................................... 13–14, 16, 18
Kristen J. Gough, Second Trimester Ultrasound
Pictures (last updated Dec. 5, 2019), available at
https://www.parents.com/pregnancy/stages/fetaldevelopment/second-trimester-images-of-yourdeveloping-baby/ [https://perma.cc/J2NV-GT6M]
(last visited July 28, 2021)................................... 3
Lana Vasung et al., Development of Axonal Pathways
in the Human Fetal Fronto-Limbic Brain:
xi
Histochemical Characterization and Diffusion
Tensor Imaging, 217 J. Anatomy 400 (2010) ......14
Lisandra Stein Bernardes et al., Acute Pain Facial
Expressions in 23-Week Fetus, Ultrasound
Obstetrics & Gynecology (June 2021), available at
https://obgyn.onlinelibrary.wiley.com/doi/
10.1002/uog.23709?af=R [https://perma.cc/V8BUPZK4] (last visited July 28, 2021) .......................15
Malcolm Nicholson & John E.E. Fleming, Imaging
and Imagining the Fetus: The Development of
Obstetric Ultrasound (2013) ...................................9
Matthew A. Rysavy et al., Between-Hospital
Variation in Treatment and Outcomes in
Extremely Preterm Infants, 372 New Eng. J.
Med. 1801 (2015) ..................................................23
Maureen L. Condic, When Does Human Life Begin? A
Scientific Perspective (2008) .................................11
Mayo Clinic, Pregnancy Week by Week: Fetal
Development: The 1st Trimester (June 30, 2020),
available at https://www.mayoclinic.org/healthylifestyle/pregnancy-week-by-week/indepth/prenatal-care/art-20045302
[https://perma.cc/D7JW-H6YW] (last visited July
28, 2021)................................................................17
Mayo Clinic, Pregnancy Week by Week: Fetal
Development: The 2nd Trimester (June 30, 2020),
available at https://www.mayoclinic.org/healthylifestyle/pregnancy-week-by-week/in-depth/fetaldevelopment/art-20046151 [https://perma.cc/
M7PA-6T9A] (last visited July 28, 2021) ...... 17, 20
xii
Med. Univ. of S.C., Ultrasound of Unborn Child at
Seventeen Weeks (Dec. 21, 2016) (on file with
author) ..................................................................21
Noelle Younge et al., Survival and
Neurodevelopmental Outcomes Among Periviable
Infants, 376 New Eng. J. Med. 617 (2017) ..........23
Obstetric Ultrasound, RadiologyInfo.org (last
updated Jan. 23, 2019), available at
https://www.radiologyinfo.org/en/info/obstetricus
[https://perma.cc/9VUU-5ZTV] (last visited July
28, 2021)..................................................................9
Peter J. Taub & John M. Mesa, Embryology of the
Head and Neck, in Ferraro’s Fundamentals of
Maxillofacial Surgery (Peter J. Taub et al. eds., 2d
ed. 2015) ................................................................18
Prachi Jain & Manu Rathee, Embryology, Tongue
(last updated Aug. 11, 2020), available at
https://www.ncbi.nlm.nih.gov/books/NBK547697/
[https://perma.cc/FCP4-7788] (last visited July 28,
2021)......................................................................16
Rachel Gitau et al., Fetal Hypothalamic-PituitaryAdrenal Stress Responses to Invasive Procedures
are Independent of Maternal Responses, 86 J.
Clinical Endocrinology & Metabolism 104
(2001) ....................................................................19
Richard Rokyta, Fetal Pain, 29 Neuroendocrinology
Letters 807 (2008) ................................................15
Ritu Gupta et al., Fetal Surgery and Anesthetic
Implications, 8 Continuing Educ. Anesthesia,
Critical Care & Pain 71 (2008) ............................18
xiii
Ronan O’Rahilly & Fabiola Muller, Human
Embryology and Teratology (2d ed. 1996) ...........11
Royal Coll. of Obstetricians & Gynaecologists, Fetal
Awareness: Review of Research and
Recommendations for Practice (Mar. 2010),
available at https://www.rcog.org.uk/
globalassets/documents/guidelines/rcogfetalaware
nesswpr0610.pdf [https://perma.cc/4V84-TEMC]
(last visited July 28, 2021) ...................................15
Ryan M. Antiel et al., Weighing the Social and
Ethical Considerations of Maternal-Fetal Surgery,
140 Pediatrics, Dec. 2017, e20170608 .................20
Sara Dubow, Ourselves Unborn: A History of the
Fetus in Modern America (2011) ............................8
Slobodan Sekulic et al., Appearance of Fetal Pain
Could Be Associated with Maturation of the
Mesodiencephalic Structures, 9 J. Pain Rsch. 1031
(2016) .............................................................. 16–19
Stuart Campbell, A Short History of Sonography in
Obstetrics and Gynaecology, 5 FVV ObGyn 213
(2013) ..................................................................3, 9
Stuart W. G. Derbyshire, Can Fetuses Feel Pain?, 332
Brit. Med. J. 909 (2006) ........................................19
Susan J. Lee et al., Fetal Pain: A Systematic
Multidisciplinary Review of the Evidence, 294 J.
Am. Med. Ass’n 947 (2005) ...................................15
Thomas W. Sadler, Langman’s Medical Embryology
(14th ed. 2019) .......................................... 12–14, 17
xiv
Timothy D. Le Cras & Marlene Rabinovitch,
Pulmonary Vascular Development, in Fetal &
Neonatal Lung Development (Alan H. Jobe et al.
eds., 2016) .............................................................25
Timothy E. Weaver et al., Surfactant During Lung
Development, in Fetal & Neonatal Lung
Development (Alan H. Jobe et al. eds., 2016) ......25
Ulyana Vjugina & Janice P. Evans, New Insights into
the Molecular Basis of Mammalian Sperm-Egg
Membrane Interactions, 13 Frontiers Bioscience
462 (2008) .............................................................11
Umberto Castiello et al., Wired to Be Social: The
Ontogeny of Human Interaction, 5 PLOS One, Oct.
2017, e13199 .........................................................15
Xenophon Giannakoulopoulos et al., Fetal Plasma
Cortisol and -endorphin Response to Intrauterine
Needling, 344 Lancet 77 (1994) ...........................19
INTEREST OF AMICI CURIAE
Amici are medical professional organizations that
represent health care professionals across the United
States. The ethical practice of medicine for all people
is of special concern to amici. They have a shared
interest in providing information on the prenatal
development of unborn children.
The American College of Pediatricians is a national
organization of pediatricians and other health care
professionals dedicated to the health and well-being of
children. Formed in 2002, the College is committed to
producing policy recommendations based on the best
available research. The College currently has
members in 47 states. Of particular importance to the
College is the sanctity of human life from conception
to natural death.
Founded in 1943, the Association of American
Physicians & Surgeons includes thousands of
physicians nationwide dedicated to preserving ethical
medicine and the patient-physician relationship. In
addition to participating at the legislative and
administrative levels in national, state, and local
debates on health issues, AAPS participates in
litigation, both as a party and as an amicus. See, e.g.,
Stenberg v. Carhart, 530 U.S. 914, 933 (2000); District
of Columbia v. Heller, 554 U.S. 570, 704 (2008)
(Breyer, J., dissenting).*
* All
parties have consented to the filing of this brief. In
accordance with Rule 37.6, no counsel for a party authored this
brief in whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of
this brief. No person other than amici curiae, their members, or
their counsel made a monetary contribution to its preparation or
submission.
2
SUMMARY OF THE ARGUMENT
1. When Roe v. Wade was decided in 1973, scientific
knowledge of fetal development was extremely limited.
The evidence before this Court was even more limited.
Neither Roe nor its companion case, Doe v. Bolton, had
any record evidence about the medical and scientific
status of the unborn child. This lack of factual evidence
led the Court to rely on shaky reports from Communist
countries without verifiable data. Because the Court
believed that there was no better evidence “at this
point in the development of man’s knowledge,” it
settled on “viability”—when the unborn child is
“potentially able to live outside the mother’s womb”—
as the governing rule. Roe v. Wade, 410 U.S. 113, 159–
60 (1973). The Court in Planned Parenthood of
Southeastern Pennsylvania v. Casey adhered to that
rule, finding “no change in Roe’s factual
underpinning.” 505 U.S. 833, 860 (1992).
2. What we know today—as uncontroverted
scientific fact—is that the child develops much more
quickly than the Court in Roe presumed. The Court
then was told that “in early pregnancy . . . embryonic
development has scarcely begun.” Brief for Appellant
at 20, Roe, 410 U.S. 113 (No. 70-18), 1971 WL 128054.
But that is wrong. From conception, the unborn child
is a unique human being who rapidly develops the
functions and form of a child long before viability.
At five weeks’ gestation (just three weeks after
conception),1 the unborn child’s heart starts beating.
By six weeks, brain waves are detectable, and the
nervous system is steadily developing. By seven
1 Ages in this brief, as in Mississippi’s law, are dated to gestation
or last menstrual period. These ages predate conceptional age by
two weeks and are standard in the profession. See, e.g., App. 41a.
3
weeks, the child can move and starts to develop
sensory receptors. By nine weeks, the child’s eyes,
ears, and teeth are visible. By ten weeks, multiple
organs begin to function, and the child has the neural
circuitry for spinal reflex, an early response to pain.
By twelve weeks, the child can open and close fingers
and sense stimulation from the outside world. By
fifteen weeks—when Mississippi’s law limits
abortions—the child can smile and is likely sensitive
to pain. Medical interventions after this stage (other
than abortion) use analgesia to prevent suffering. And
by eighteen weeks, pain induces hormonal responses
in the child. All this happens long before viability.
Reflecting these advances in medical knowledge,
ultrasound imagery available at the time of Roe looks
much different from the imagery available today:
Fifteen-Week Ultrasounds Around 1973
when Roe was Decided and Today2
2 Stuart Campbell, A Short History of Sonography in Obstetrics
and Gynaecology, 5 FVV ObGyn 213, 217 (2013); Kristen J.
Gough, Second Trimester Ultrasound Pictures (last updated Dec.
5, 2019), available at https://www.parents.com/pregnancy/
stages/fetal-development/second-trimester-images-of-yourdeveloping-baby/ [https://perma.cc/J2NV-GT6M] (last visited
4
3. As what we know about the unborn child’s rapid
development has changed, so too must this Court’s
jurisprudence change. What mattered in Roe and its
progeny was “the measure of the State’s interest in ‘the
light of present medical knowledge.’” Planned
Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 61
(1976) (quoting Roe, 410 U.S. at 163). “Nearly 50 years
later,” medical knowledge about unborn children has
“changed dramatically.” Shelby County v. Holder, 570
U.S. 529, 547 (2013). “[A]dvances in genetics and
related fields make clear that a new and unique
human being is formed at the moment of conception,
when two cells, incapable of independent life, merge to
form a single, individual human entity.” Hamilton v.
Scott, 97 So. 3d 728, 746 (Ala. 2012) (Parker, J.,
concurring specially). And the state’s interest in
protecting unborn life is clearly compelling at fifteen
weeks, when the child has fully taken the human form.
Because
medical
knowledge
about
fetal
development has overtaken the outdated theories in
Roe and Casey, those decisions must be reconsidered.
To the extent any “medical and scientific uncertainty”
remains, June Medical Servs. LLC v. Russo, 140 S. Ct.
2103, 2136 (2020) (Roberts, C.J., concurring in the
judgment), States must be returned “the right to
readjust [their] views and emphases in the light of the
advanced knowledge” showing that pre-viability
children are quickly developing human beings with
the capacity to move, smile, and feel pain. Doe v.
Bolton, 410 U.S. 179, 191 (1973). This Court’s
constitutional analysis should reflect what we now
know about the early and rapid development of life.
July 28, 2021) (picture from the American Institute of Ultrasound
in Medicine).
5
ARGUMENT
I. Roe and Casey relied on limited information
about prenatal development.
When the Court decided Roe nearly fifty years ago,
scientific knowledge about fetal development was
limited, with fetology only recognized as a new field of
science the year that Roe was decided. And the
scientific evidence available to the Court was even
more limited because of the procedural posture of the
case. The limited state of knowledge and the lack of
record evidence led the Court to base its ultimate
opinion on information that we now know is wrong.
Justice Blackmun, Roe’s author, explained that the
choice to hear Roe and Doe was premised on the cases
involving a technical question about federal
jurisdiction and ongoing state proceedings, “nothing
more than an application of Younger v. Harris.”3 The
cases were, after all, much better suited to resolution
of a jurisdictional question. Both cases arose on a
motion to dismiss, so the trial courts had not engaged
in any fact-finding.4 Because of the preliminary
posture of the cases, the record contained almost
nothing in the way of factual evidence about fetal
development.5 The record had no factual hearings,
examinations, testimonies, exhibits, medical data, or
3 See
Linda Greenhouse, Becoming Justice Blackmun: Harry
Blackmun’s Supreme Court Journey 80 (2005).
4 See Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), modified,
410 U.S. 179 (1973); Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex.
1970), aff’d in part, rev’d in part, 410 U.S. 113 (1973).
5 See Clarke D. Forsythe & Bradley N. Kher, A Road Map
Through the Supreme Court’s Back Alley, 57 Vill. L. Rev. 45, 47
(2012).
6
any other evidence that could have provided a
scientific basis for the Court’s consideration.6
With no record evidence available, the Court relied
instead on the parties’ briefs and independent
research.7 For instance, Justice Blackmun spent a few
days independently researching abortion at the Mayo
Clinic, where he had served as general counsel twenty
years earlier.8 Of note, the Mayo Clinic did not
routinely perform abortions then.9
Because of the insufficient evidentiary record, the
eventual majority opinion relied largely on
unsubstantiated reports that lacked any verifiable
data.10 Nearly half of the sources that the majority
cited “described statistics from various Communist
countries of Eastern Europe, none of which contained
data to back those statistics up.”11 The remaining
sources likewise posed methodological issues: some
lacked sufficient (or any) data, others did not use
adequate samples, and still others did not have followup verification processes.12
Discussions of the initial drafts of Roe reflect the
scientific uncertainty facing the Justices. In an early
draft of the opinion, Justice Blackmun suggested
drawing the line for abortion regulations at the end of
6 Ibid.
7 Id. at 48.
8 Greenhouse, supra note 3, at 90.
9 Nan D. Hunter, Justice Blackmun, Abortion, and the Myth of
Medical Independence, 72 Brook. L. Rev. 147, 153, 155 (2006).
10 Forsythe & Kher, supra note 5, at 51–54.
11 David F. Forte, Life, Heartbeat, Birth: A Medical Basis for
Reform, 74 Ohio. St. L.J. 121, 125 (2012).
12 Id. at 125–26.
7
the first trimester.13 In his memo accompanying the
draft to the other Justices, Justice Blackmun
commented on the ambiguities of the medical evidence
at the time: “You will observe that I have concluded
that the end of the first trimester is critical. . . . This is
arbitrary, but perhaps any other selected point, such
as quickening or viability, is equally arbitrary.”14
Justice Powell suggested drawing the line at
“viability” instead.15 In response, Justice Blackmun
explained that he thought a first trimester line would
“leave the states free to draw their own medical
conclusions with respect to the period after the first
three months and until viability.”16 But Justice
Blackmun also said that he had “no particular
commitment” on when to draw the line, given the
medical uncertainty at the time.17
The Court ultimately settled on viability as the
“compelling point” after which States have a sufficient
interest in protecting unborn life. Roe, 410 U.S. at 163
(cleaned up). In making this decision, the Court
purported to rely on what it considered to be “the wellknown facts of fetal development” to conclude that a
pre-viability “fetus, at most, represents only the
potentiality of life.” Id. at 156, 162. Looking to “the
lessons and examples of medical . . . history” and “the
13 Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider
Justice 220 (2008).
14 Greenhouse, supra note 3, at 95.
15 Yarbrough, supra note 13, at 220 (quoting Letter from Lewis
Powell to Harry Blackmun (Nov. 29, 1972) (on file with the
Library of Congress, Harry Blackmun Papers, in-house online
Roe and Doe files)).
16 Ibid. (quoting Letter from Harry Blackmun to Lewis Powell
(Dec. 4, 1972) (on file with Washington & Lee Univ. Sch. of Law,
Lewis Powell Papers, Box 150)).
17 Ibid.
8
demands of the profound problems of the present day,”
the Court declared that no “important and legitimate
interest” exists in the unborn child before viability. Id.
at 163, 165. The viability line was closely tied to
supposed “biological justifications” and the evidence
available “at this point in the development of man’s
knowledge.” Id. at 159, 163.
To the extent they existed, these “biological
justifications” have since been repudiated by scientific
breakthroughs in fetology, embryology, and genetics,
and by technological advancements in fields such as
sonography. For instance, the Court in Roe referenced
“data that purport[ed] to indicate that conception is a
‘process’ over time, rather than an event.” 410 U.S. at
161. And the Court had been told by the parties that
“in early pregnancy . . . embryonic development has
scarcely begun.” Brief for Appellant at 20, supra p. 2.
Today, however, science has proven that conception
is not a “process” and that human life and
“development begins at fertilization.”18 And we know
that significant development takes place right from
the moment of conception. See infra Part II. But the
evidence available today simply did not exist in 1973,
which was the very first year that the American
College of Gynecologists even recognized the field of
fetology as a branch of medical science.19 Now, fetal
medicine is an established field dedicated to treating
the fetus as a patient in utero.
Likewise, only after Roe did ultrasound machines
become “standardized products in a high-volume
Keith L. Moore & T.V.N. Persaud, The Developing Human:
Clinically Oriented Embryology 3 (7th ed. 2003).
19 Sara Dubow, Ourselves Unborn: A History of the Fetus in
Modern America 113 (2011).
18
9
global market” that expanded “exponentially” starting
in the late 1970s.20 Unlike the prototypes in limited
use when Roe was decided, routine ultrasounds can
now provide high-quality three-dimensional images in
real time that reveal the fetus to be much more
developed than the Court in Roe could have known.
See supra p. 3.21 Indeed, obstetric ultrasounds are now
considered “medically necessary” for both the mother
and fetus. Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 579 (5th Cir. 2012). With
modern ultrasounds, physicians can confirm “the
presence, size, location, and number of gestational
sacs”;22 evaluate the placenta, amniotic fluid, and
cervix;23 and assess prenatal growth and well-being.24
In 1992, the evidence before this Court in Casey
was still meager. Even by then, however, the Court
had “seen how time has overtaken some of Roe’s
factual assumptions.” Casey, 505 U.S. at 860. For
instance, viability had dropped from twenty-eight
weeks in 1973 to roughly twenty-four weeks by 1992.
Ibid. Yet Planned Parenthood told the Court in Casey
that the notion that “viability will recede with
advances in medical technology . . . has no medical
20 Malcolm
Nicholson & John E.E. Fleming, Imaging and
Imagining the Fetus: The Development of Obstetric Ultrasound
232 (2013).
21 See also Campbell, supra note 2, at 219–20.
22 Am. Inst. of Ultrasound in Med., AIUM-ACR-ACOG-SMFMSRU Practice Parameter for the Performance of Standard
Diagnostic Obstetric Ultrasound Examinations, 37 J. Ultrasound
Med. E13, E14 (2018).
23 Obstetric Ultrasound, RadiologyInfo.org (last updated Jan. 23,
2019),
available
at
https://www.radiologyinfo.org/en/info/
obstetricus [https://perma.cc/9VUU-5ZTV] (last visited July 28,
2021).
24 Ibid.
10
foundation.”25 New York and other States echoed that
pessimism: “Medical authorities have concluded that
viability exists–and is likely to remain fixed–at the
24th week of pregnancy.”26
Contrary to these predictions, a healthy child can
now be delivered at twenty-one weeks.27 The Court in
Casey acknowledged some “advances in neonatal care”
but did not find any advances in fetal development
that would change “the validity of Roe’s central
holding, that viability marks the earliest point at
which the State’s interest in fetal life is
constitutionally adequate.” 505 U.S. at 860. As shown
next, however, an explosion of evidence in the last
thirty years has demolished the foundation of the
Court’s decisions in Roe and Casey.
II. Scientific knowledge has overtaken Roe and
Casey.
In the decades since Roe and Casey, scientific
advancements and medical breakthroughs have
overtaken those decisions’ factual underpinnings.
Medical advancements have produced scientific
evidence that makes clear today what the Court in Roe
could not understand: the human fetus is a living
being from the moment of conception and can move,
smile, and feel pain in the womb well before viability.
25 Brief for Petitioners & Cross-Respondents at 28 n.48, Casey,
505 U.S. 833 (Nos. 91-744, 91-902), 1992 WL 12006398.
Brief for the States of New York et al. as Amicus Curiae
Supporting Appellant at 13 n.23, Casey, 505 U.S. 833 (Nos. 91744, 91-902), 1992 WL 12006406.
27 Kaashif A. Ahmad et al., Two-Year Neurodevelopmental
Outcome of an Infant Born at 21 Weeks’ 4 Days’ Gestation, 140
Pediatrics, Dec. 2017, e20170103, at 1–2, available at
https://pediatrics.aappublications.org/content/140/6/e20170103
[https://perma.cc/D9UR-KHDU] (last visited July 28, 2021).
26
11
For all human life, “[d]evelopment begins at
fertilization when a male gamete or sperm
(spermatozoon) unites with a female gamete or oocyte
(ovum) to produce a single cell—a zygote.”28 The fusion
of the oocyte and the sperm create the zygote “in less
than a single second.”29 Fertilization “is a critical
landmark” that occurs around the second week as
measured by gestational age.30 The “unicellular zygote
divides many times and becomes progressively
transformed into a multicellular human being through
cell division, migration, growth, and differentiation.”31
But the child’s sex is already determined at
fertilization.32 In a “biological sense,” “the embryo or
fetus is whole, separate, unique and living” from
conception. Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 736 (8th Cir. 2008) (en banc).
During the fifth week, “[t]he cardiovascular system
is the first major system to function in the embryo,”
with the heart and vascular system appearing in the
middle of the week.33 By the end of the fifth week,
28 Moore & Persaud, supra note 18, at 3.
Am. Coll. of Pediatricians, When Human Life Begins (Mar.
2017), available at https://acpeds.org/position-statements/whenhuman-life-begins [https://perma.cc/Z9W5-UN9T] (last visited
July 28, 2021); see also Ulyana Vjugina & Janice P. Evans, New
Insights into the Molecular Basis of Mammalian Sperm-Egg
Membrane Interactions, 13 Frontiers Bioscience 462, 462–76
(2008); Maureen L. Condic, When Does Human Life Begin? A
Scientific Perspective 5 (2008).
30 Ronan O’Rahilly & Fabiola Muller, Human Embryology and
Teratology 8 (2d ed. 1996); see also App. 79a n.3.
31 Moore & Persaud, supra note 18, at 3.
32 See John C. Achermann & Larry Jameson, Disorders of Sex
Development, in Harrison’s Principles of Internal Medicine, 3046,
3046–48 (Dan L. Longo et al. eds., 18th ed. 2012).
33 Keith L. Moore et al., The Developing Human E-Book:
Clinically Oriented Embryology 8945 (Kindle ed. 2020).
29
12
“blood is circulating and the heart begins to beat on
the 21st or 22nd day” after conception.34
By six weeks, “[t]he embryonic heartbeat can be
detected.”35 Technological advances permit not only
imaging detection at this early stage, but also
videography of the unborn child, including footage of
the child’s heartbeat.36
After detection of a fetal heartbeat—and absent an
abortion—the overwhelming majority of unborn
children will now survive to birth.37 “[O]nce a fetus
possesses cardiac activity, its chances of surviving to
full term are between 95%–98%.”38
Also during the sixth week, the child’s nervous
system is developing, with the brain already
“patterned” at this early stage.39 The earliest neurons
are generated in the region of the brain responsible for
thinking, memory, and other higher functions.40 And
34 Id. at 2662.
35 Id. at 2755.
36 See, e.g., Endowment for Hum. Dev., The Heart in Action: 4
Weeks, 4 Days, available at https://www.ehd.org/movies/21/TheHeart-in-Action [https://perma.cc/GQN4-Q8QS] (last visited July
28, 2021) (showing footage of a heartbeat at six weeks); see also,
e.g., Endowment for Hum. Dev., Your Life Before Birth (Mar. 18,
2019), available at https://vimeo.com/325006095 [https://
perma.cc/6QBT-UWLK] (last visited July 28, 2021) (displaying
video footage of a child’s development).
37 Joe Leigh Simpson, Low Fetal Loss Rates After Ultrasound
Proved-Viability in First Trimester, 258 J. Am. Med. Ass’n 2555,
2555–57 (1987).
38 Forte, supra note 11, at 140 & nn.121–22 (footnote omitted)
(collecting post-Casey medical research).
39 Thomas W. Sadler, Langman’s Medical Embryology 72 (14th
ed. 2019); see generally id. at 59–95.
40 See, e.g., Irina Bystron et al., Tangential Networks of Precocious
Neurons and Early Axonal Outgrowth in the Embryonic Human
Forebrain, 25 J. Neuroscience 2781, 2788 (2005).
13
the child’s face is developing, with cheeks, chin, and
jaw starting to form.41
At seven weeks, cutaneous sensory receptors,
which permit prenatal pain perception, begin to
develop.42 The unborn child also starts to move.43
During the seventh week, “the growth of the head
exceeds that of other regions” largely because of “the
rapid development of the brain” and facial features.44
At eight weeks, essential organs and systems have
started to form, including the child’s kidneys, liver,
and lungs.45 The upper lip and nose can be seen.46
At nine weeks, the child’s ears, eyes, teeth, and
external genitalia are forming.47
Unborn Child at Ten Weeks Rubbing Head48
41 See Sadler, supra note 39, at 72–95.
42 Kanwaljeet S. Anand & Paul R. Hickey, Special Article, Pain
and Its Effects in the Human Neonate and Fetus, 317 New Eng.
J. Med. 1321, 1322 (1987).
43 Alessandra
Pionetelli, Development of Normal Fetal
Movements: The First 25 Weeks of Gestation 98, 110 (2010).
44 Keith L. Moore et al., The Developing Human: Clinically
Oriented Embryology 65–84.e1 (11th ed. 2020).
45 See Sadler, supra note 39, at 72–95.
46 Moore et al., supra note 44, 1–9.e1.
47 See Sadler, supra note 39, at 72–95; see also App. 66a.
48 Pionetelli, supra note 43, at 65 (2010).
14
At ten weeks, vital organs begin to function, and
the child’s hair and nails begin to form.49 By this point,
the neural circuitry has formed for spinal reflex, or
“nociception,” which is the fetus’s early response to
pain.50 Starting around ten weeks, the earliest
connections between neurons constituting the
subcortical-frontal pathways—the circuitry of the
brain that is involved in a wide range of psychological
and
emotional
experiences,
including
pain
51
perception—are established.
At the time of Roe, “the medical consensus was that
babies do not feel pain.”52 Only during the late 1980s
and early 1990s did any of the initial scientific
evidence for prenatal pain begin to emerge.53 Today,
the “evidence for the subconscious incorporation of
pain into neurological development and plasticity is
incontrovertible.”54 Every modern review of prenatal
49 See Sadler, supra note 39, at 106–127; Moore et al., supra note
44, at 65–84.e1; Johns Hopkins Med., The First Trimester,
available at https://www.hopkinsmedicine.org/health/wellnessand-prevention/the-first-trimester
[https://perma.cc/8N6HM6CN] (last visited July 28, 2021); see also App. 66a.
50 See, e.g., Int’l Ass’n for the Study of Pain, IASP Terminology
(last updated Dec. 14, 2017), available at https://www.iasppain.org/Education/Content.aspx?ItemNumber=1698#Nociceptio
n [https://perma.cc/5PV5-5T9H] (last visited July 28, 2021); see
also App. 80a.
51 Lana Vasung et al., Development of Axonal Pathways in the
Human
Fetal
Fronto-Limbic
Brain:
Histochemical
Characterization and Diffusion Tensor Imaging, 217 J. Anatomy
400, 400–03 (2010).
52 Am. Coll. of Pediatricians, Fetal Pain: What is the Scientific
Evidence? (Jan. 2021), available at https://acpeds.org/positionstatements/fetal-pain [https://perma.cc/JM3T-XQV8] (last visited
July 28, 2021).
53 Ibid.
54 Curtis L. Lowery et al., Neurodevelopmental Changes of Fetal
Pain, 31 Seminars Perinatology 275, 275 (2007).
15
pain consistently issues the same interpretation of the
data: by ten to twelve weeks, a fetus develops neural
circuitry capable of detecting and responding to pain.55
Even more sophisticated reactions occur as the unborn
child develops further.56 And new developments have
provided still more evidence strengthening the
conclusion that fetuses are capable of experiencing
pain in the womb.57
As early as ten or eleven weeks, the fetus shows
awareness of his or her environment.58 Studies of
twins, for example, show that by ten to eleven weeks,
twins engage in “inter-twin contact,” and that by
fourteen weeks, twins “execute movements specifically
aimed at the co-twin.”59 The fetus also begins to
perform “breathing movements” that “increase
progressively” as he or she develops in the womb.60
55 See, e.g., Carlo V. Bellieni & Giuseppe Buonocore, Is Fetal Pain
a Real Evidence?, 25 J. Maternal-Fetal & Neonatal Med. 1203,
1203–08
(2012);
Richard
Rokyta,
Fetal
Pain,
29
Neuroendocrinology Letters 807, 807–14 (2008).
56 See Royal Coll. of Obstetricians & Gynaecologists, Fetal
Awareness: Review of Research and Recommendations for
Practice 5, 7 (Mar. 2010), available at https://www.rcog.org.uk/
globalassets/documents/guidelines/rcogfetalawarenesswpr0610.
pdf [https://perma.cc/4V84-TEMC] (last visited July 28, 2021);
Susan J. Lee et al., Fetal Pain: A Systematic Multidisciplinary
Review of the Evidence, 294 J. Am. Med. Ass’n 947, 948–49 (2005);
see also App. 76a, 84a–85a.
57 See Lisandra Stein Bernardes et al., Acute Pain Facial
Expressions in 23-Week Fetus, Ultrasound Obstetrics &
Gynecology
(June
2021),
available
at
https://
obgyn.onlinelibrary.wiley.com/doi/10.1002/uog.23709?af=R
[https://perma.cc/V8BU-PZK4] (last visited July 28, 2021).
58 Umberto Castiello et al., Wired to Be Social: The Ontogeny of
Human Interaction, 5 PLOS One, Oct. 2017, e13199, at 1, 9.
59 Ibid.
60 Pionetelli, supra note 43, at 40.
16
Twins in the Womb at Eleven Weeks61
At eleven weeks, the unborn child’s diaphragm is
developing, so the child can hiccup.62 At this point the
child “has a distinctly human appearance.”63 The child
has hands and feet, ears, open nasal passages on the
tip of the nose, and a tongue.64
At twelve weeks, the unborn child has assumed
“the human form” in all relevant aspects. Gonzales v.
Carhart, 550 U.S. 124, 160 (2007); see also App. 66a.
The child can open and close fingers, starts to make
sucking motions, and senses stimulation from the
world outside the womb.65 The child’s digestive system
begins to function, white blood cells develop in his or
her bone marrow, and the pituitary gland begins to
61 Id. at 99.
62 Id. at 31.
63 Moore et al., supra note 44, at 65–84.e1.
64 Id. at 1–9.e1; Prachi Jain & Manu Rathee, Embryology, Tongue
(last updated Aug. 11, 2020), available at https://www.ncbi.
nlm.nih.gov/books/NBK547697/
[https://perma.cc/FCP4-7788]
(last visited July 28, 2021).
65 Pionetelli, supra note 43, at 50, 61–62; Slobodan Sekulic et al.,
Appearance of Fetal Pain Could Be Associated with Maturation of
the Mesodiencephalic Structures, 9 J. Pain Rsch. 1031, 1034–35
(2016).
17
produce reproductive hormones.66 And the child’s vocal
cords are developing.67
Moreover, by twelve weeks, the parts of the central
nervous system leading from peripheral nerves to the
brain are sufficiently connected to permit the
peripheral pain receptors to detect painful stimuli.68
Thus, the unborn “baby develops sensitivity to
external stimuli and to pain much earlier than was
believed” when Roe and Casey were decided. MKB
Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774 (8th Cir.
2015) (cleaned up).
At thirteen weeks, the bone structure is forming in
the child’s arms and legs.69 At least by this time, the
intestines are in place within his or her abdomen.70
66 Sadler, supra note 39, at 230–55.
67 Johns
Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 12, available at https://
www.hopkinsallchildrens.org/Patients-Families/Health-Library/
HealthDocNew/Week-12?id=13484
[https://perma.cc/32GPWZYX] (last visited July 28, 2021.
68 Sekulic et al., supra note 65, at 1034–35.
69 Mayo Clinic, Pregnancy Week by Week: Fetal Development: The
2nd Trimester (June 30, 2020), available at https://
www.mayoclinic.org/healthy-lifestyle/pregnancy-week-by-week/
in-depth/fetal-development/art-20046151
[https://perma.cc/
M7PA-6T9A] (last visited July 28, 2021).
70 Mayo Clinic, Pregnancy Week by Week: Fetal Development: The
1st Trimester (June 30, 2020), available at https://
www.mayoclinic.org/healthy-lifestyle/pregnancy-week-byweek/in-depth/prenatal-care/art-20045302
[https://perma.cc/
D7JW-H6YW] (last visited July 28, 2021).
18
Unborn Child at Thirteen Weeks71
At fourteen weeks, the roof of the child’s mouth has
formed, and his or her eyebrows begin to fill in.72 The
intestines are developing the initial meconium, which
will form part of the child’s first bowel movement after
birth.
By fifteen weeks, when Mississippi’s law limits
abortions, “the fetus is extremely sensitive to painful
stimuli,” and physicians (other than those performing
abortions) take this fact “into account when
performing invasive medical procedures on the
fetus.”73 Even more neural circuitry for pain detection
and transmission develops between sixteen and
twenty weeks, including spinothalamic fibers, which
are responsible for the transmission of pain from the
periphery to the thalamus.74 By the time the unborn
child reaches eighteen weeks, painful stimuli will
71 Moore et al., supra note 44, at 85–98.e1.
72 Peter J. Taub & John M. Mesa, Embryology of the Head and
Neck, in Ferraro’s Fundamentals of Maxillofacial Surgery 3, 4, 6
(Peter J. Taub et al. eds., 2d ed. 2015).
73 Sekulic et al., supra note 65, at 1036.
74 Ritu Gupta et al., Fetal Surgery and Anesthetic Implications, 8
Continuing Educ. Anesthesia, Critical Care & Pain 71, 74 (2008).
19
cause the baby in utero to exhibit stress-induced
hormonal responses.75 Studies show that “the fetus
reacts to intrahepatic vein needling with vigorous body
and breathing movements.”76 The fetus also reacts to
such stimuli with “hormonal stress responses,” with
rising hormone levels “independent of those of the
mother.”77
These recent discoveries have led scientists to
conclude that “the human fetus can feel pain when it
undergoes surgical interventions and direct analgesia
must be provided to it.”78 For this reason,
anesthesiologists commonly recommend pain relievers
for the fetus during potentially painful procedures.79
As one group of scholars explains, “the fetus is
extremely sensitive to painful stimuli,” and “[i]t is
necessary to apply adequate analgesia to prevent the
suffering of the fetus.”80 Other scholars agree with this
assessment.81
Thus, in every other medical practice at this stage
of fetal development, physicians recognize the need to
75 Stuart
W. G. Derbyshire, Can Fetuses Feel Pain?, 332 Brit.
Med. J. 909, 910 (2006).
76 Xenophon Giannakoulopoulos et al., Fetal Plasma Cortisol and
-endorphin Response to Intrauterine Needling, 344 Lancet 77,
77–78 (1994).
77 Rachel Gitau et al., Fetal Hypothalamic-Pituitary-Adrenal
Stress Responses to Invasive Procedures are Independent of
Maternal Responses, 86 J. Clinical Endocrinology & Metabolism
104, 104 (2001).
78 Carlo V. Bellieni, Analgesia for Fetal Pain During Prenatal
Surgery: 10 Years of Progress, 89 Pediatrics Rsch. 1612, 1612
(2021).
79 Sekulic et al., supra note 65, at 1036.
80 Ibid.
81 See, e.g., Carlo V. Bellieni et al., Use of Fetal Analgesia During
Prenatal Surgery, 26 J. Maternal-Fetal Neonatal Med. 90, 94
(2013).
20
protect the unborn child in the womb and prioritize the
child’s health, even when making treatment plans for
the child’s mother.82 Abortions after fifteen weeks, by
contrast, typically involve “the use of surgical
instruments to crush and tear the unborn child apart
before removing the pieces of the dead child from the
womb.” App. 66a. No analgesia is used to prevent the
unborn child from experiencing pain while being
dismembered.
At fifteen to sixteen weeks, sonographic imaging
has shown that “[o]ccasional smiles can be noted,” and
unborn children smile “more consistently” by eighteen
to twenty weeks.83 At fifteen weeks, unborn children
kick their legs, move their arms, and start curling
their toes.84 And by sixteen weeks, the child’s eyes are
moving side-to-side, and they can perceive light.85
At seventeen weeks, the child’s fat stores are
developing under his or her skin, and they will
continue to accumulate throughout the pregnancy.
Between seventeen and eighteen weeks, the unborn
child’s fingers and toes each develop their own unique
prints.86 By eighteen weeks, the child can hear his or
82 See, e.g., Ryan M. Antiel et al., Weighing the Social and Ethical
Considerations of Maternal-Fetal Surgery, 140 Pediatrics, Dec.
2017, e20170608, at 1, 3–4.
83 Pionetelli, supra note 43, at 79.
84 Johns
Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 15, available at https://
www.hopkinsallchildrens.org/Patients-Families/Health-Library/
HealthDocNew/Week-15?id=13484 [https://perma.cc/62JP-CXL3]
(last visited July 28, 2021).
85 Mayo Clinic, supra note 69.
86 Johns Hopkins Med., The Second Trimester, available at
https://www.hopkinsmedicine.org/health/wellness-and-prevent
ion/the-second-trimester [https://perma.cc/M7WA-6PC5] (last
visited July 28, 2021).
21
her mother’s voice, and the child can yawn.87 The
nervous system in the brain is also developing the
circuitry for all the senses: taste, touch, smell, sight,
and hearing.
Unborn Child at Seventeen Weeks88
Unborn Child Smiling at Seventeen Weeks89
87 Ibid.; see also Cleveland Clinic, Fetal Development: Stages of
Growth (last updated Apr. 16, 2020), available at
https://my.clevelandclinic.org/health/articles/7247-fetaldevelopment-stages-of-growth [https://perma.cc/YG92-KRH4]
(last visited July 28, 2021).
88 Med. Univ. of S.C., Ultrasound of Unborn Child at Seventeen
Weeks (Dec. 21, 2016) (on file with author).
89 Pionetelli, supra note 43, at 79.
22
Unborn Child at Twenty Weeks90
At nineteen weeks, the vernix caseosa—a
protective coating—develops around the child’s skin,
helping its development throughout the later stages of
the pregnancy.91 At twenty weeks, the sex-specific
reproductive organs have developed enough to permit
identification of the child’s sex by ultrasound, and girls
have eggs in their ovaries.92 Around this time, “facial
expressions begin to appear consistently, including
‘negative emotions.’”93 These movements “require the
involvement and coordination of more than one
muscle.”94
90 Id. at 84.
91 Johns
Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 19, available at https://
www.hopkinsallchildrens.org/Patients-Families/Health-Library/
HealthDocNew/Week-19?id=13484
[https://perma.cc/7TWVGS24] (last visited July 28, 2021).
92 See, e.g., Kavita Narang et al., Developmental Genetics of the
Female Reproductive Tract, in Human Reproductive and Prenatal
Genetics 129, 132, 135 (Peter C. K. Leung & Jie Qiao eds., 2019).
93 Pionetelli, supra note 43, at 80.
94 Ibid.
23
At twenty-one weeks, the physical and neurological
development of the unborn child is sufficiently mature
that, in some cases, the child can survive childbirth.95
As discussed, this is far earlier than was true in 1973
or 1992. See Casey, 505 U.S. at 860. At this stage of
development, the child can also swallow and
experience different tastes depending on what the
mother eats. And the cartilage throughout the child’s
body is turning to bone.
At twenty-two weeks, the child’s senses are
improving.96 The child’s ability to detect light from
outside the womb (such as from a flashlight) can be
observed. The child’s hearing has improved so that he
or she can detect the sounds of the mother’s internal
organs.
Between 23% and 60% of infants born at twentytwo weeks who receive active hospital treatment
survive,97 many without immediate or long-term
neurologic impairment.98 And the true figures could be
95 See Ahmad et al., supra note 27, at 1–2; see also App. 82a.
96 Johns
Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 22, available at https://
www.hopkinsallchildrens.org/Patients-Families/HealthLibrary/HealthDocNew/Week-22?id=13484
[https://perma.cc/
7VR8-2LFX] (last visited July 28, 2021).
97 Matthew A. Rysavy et al., Between-Hospital Variation in
Treatment and Outcomes in Extremely Preterm Infants, 372 New
Eng. J. Med. 1801, 1804 (2015); Katrin Mehler et al., Survival
Among Infants Born at 22 or 23 Weeks’ Gestation Following Active
Prenatal and Postnatal Care, 170 J. Am. Med. Ass’n Pediatrics
671, 675 (2016).
98 See,
e.g.,
Noelle
Younge
et
al.,
Survival
and
Neurodevelopmental Outcomes Among Periviable Infants, 376
New Eng. J. Med. 617, 622, 627 (2017) (describing study showing
“an increase in the rate of survival without neurodevelopmental
impairment from 2000 through 2011”); Antti Holsti et al., TwoThirds of Adolescents who Received Active Perinatal Care After
24
much higher, for imposing particular values on
“viability” “create[s] facts”: “A policy that limits
treatment for infants born at 24 weeks’ gestation will
lead to [comparatively] low survival rates for those
infants. Those [comparatively] low survival rates will
seem to justify and validate the policy, even if the true
causal relationship runs in the other direction.”99
Medical advances suggest that viability will continue
to occur at even younger ages as time goes on.100
At twenty-three weeks, the child’s skin tone
changes color as his or her capillaries form and blood
fills them under the skin.101 At twenty-four weeks, the
baby’s face is nearly fully formed, with eyelashes,
eyebrows, and hair clearly visible. The child is
accumulating a large amount of muscle mass and baby
fat during this period.102
Unborn Child Yawning at Twenty-Four Weeks103
Extremely Preterm Birth Had Mild or No Disabilities, 105 Acta
Paediatrica 1288, 1296 (2016) (similar).
99 John D. Lantos & William Meadow, Variation in the Treatment
of Infants Born at the Borderline of Viability, 123 Pediatrics 1588,
1589 (2009).
100 See App. 82a–83a.
101 Cleveland Clinic, supra note 87.
102 Ibid.
103 Pionetelli, supra note 43, at 34.
25
At twenty-five weeks, the lungs have developed
surfactant, a substance that helps the lungs to expand
after birth.104 Blood vessels form in the lungs.105 The
child’s nostrils also function by this point, allowing
him or her to practice exhaling before birth.
Around twenty-six weeks, the child’s eyes open,
and he or she can fully see what is going on around
him or her.106 Brain wave activity increases
throughout this period. At twenty-seven weeks, the
child weighs about two pounds, double the child’s
weight a month earlier.
At twenty-eight weeks, the child experiences rapid
eye movement during sleep, possibly showing that the
he or she is dreaming.107 The child also blinks
routinely during this period, developing another skill
for after birth.
Only after all this development—which was largely
unknown to the Court in 1973—could an unborn child
be protected under Roe, which thought that no
“biological justification[]” existed to protect life
beforehand. 410 U.S. at 163.
104 Timothy
E. Weaver et al., Surfactant During Lung
Development, in Fetal & Neonatal Lung Development 141, 151
(Alan H. Jobe et al. eds., 2016).
105 Timothy D. Le Cras & Marlene Rabinovitch, Pulmonary
Vascular Development, in Fetal & Neonatal Lung Development
34, 36 (Alan H. Jobe et al. eds., 2016).
106 Johns Hopkins All Children’s Hosp., A Week-by-Week
Pregnancy Calendar: Week 26, available at https://
www.hopkinsallchildrens.org/Patients-Families/Health-Library/
HealthDocNew/Week-26?id=13484
[https://perma.cc/A8QGXBPA] (last visited July 28, 2021).
107 See, e.g., Hikohiro Okawa et al., Eye Movement Activity in
Normal Human Fetuses Between 24 and 39 Weeks of Gestation,
12 PLOS One, July 2017, e0178722, at 1, 10.
26
III. The Court’s abortion jurisprudence should
account for these advances in scientific
knowledge.
To account for the medical advances and scientific
breakthroughs in fetal development that were
unknown in 1973 or even in 1992, the Court’s abortion
jurisprudence must change. “In constitutional
adjudication as elsewhere in life, changed
circumstances may impose new obligations,” and the
Court has a “constitutional duty” to reexamine its
jurisprudence given the now-repudiated “factual
underpinnings of Roe’s central holding.” Casey, 505
U.S. at 864.
Starting with Roe, this Court’s abortion
jurisprudence has repeatedly pledged allegiance to
scientific fact. Roe based its viability rule on the
evidence available “at this point in the development of
man’s knowledge.” 410 U.S. at 159. The Court tied this
rule to “biological reasons,” focusing on the views of
“the medical and scientific communities” and leaving
the constitutional line “flexible for anticipated
advancements.” Colautti v. Franklin, 439 U.S. 379,
386–87 (1979). And the Court said that the State’s
interest in unborn life must be “measure[d]” “in ‘the
light of present medical knowledge,’” Danforth, 428
U.S. at 61 (quoting Roe, 410 U.S. at 163), allowing
States to exercise “legislative judgment” based on
“advancing medical knowledge.” Doe, 410 U.S. at 190
(first quote); Roe, 410 U.S. at 116 (second quote).
Even defenders of Roe considered it “obvious” that
the States have a “dramatic[]” interest in protecting
unborn life as the child develops the capacity to “feel
pain,” “experience pleasure,” and “react to [his or her]
surroundings.” Thornburgh v. Am. Coll. of
27
Obstetricians & Gynecologists, 476 U.S. 747, 778
(1986) (Stevens, J., concurring). They acknowledged
that the States’ interest “increases . . . dramatically”
as the child’s “capacity to feel pain . . . increases day
by day” and that the interest becomes “compelling” “as
the fetus evolves into its postnatal form.” Webster v.
Reprod. Health Servs., 492 U.S. 490, 552–53 (1989)
(Blackmun, J., concurring in part and dissenting in
part). The Court in Roe simply did not think that the
pre-viability fetus was “biological[ly]” developed
enough to warrant protection. 410 U.S. at 163.
“But history did not end in” 1973. Shelby County,
570 U.S. at 552. “Nearly 50 years later, things have
changed dramatically,” and today’s medical knowledge
“tell[s] an entirely different story.” Id. at 547, 556.
Scientific advancements over the past fifty years have
rendered the factual underpinnings of Roe obsolete.
And the thirty years of technological improvements
and medical breakthroughs since Casey have
revolutionized our understanding of early fetal
development.
We now know that the unborn child is a living
human being, rapidly developing from the moment of
conception and capable of feeling pain long before
viability. Even in the pre-viability period, the child’s
heart beats, the child can express himself or herself
through smiling and other actions, and the child can
respond to the environment outside the womb. In
short, as basic embryology textbooks now teach, life
begins at fertilization—a fact that surprises no one in
the medical profession.108 Absent reconsideration of
Roe and Casey, the Court’s abortion jurisprudence will
108 Moore & Persaud, supra note 18, at 28.
28
no longer align with what we know about the early
development of the unborn child.
Likewise, a failure to reconsider Roe and Casey
would prevent state and federal law from adapting to
current scientific knowledge. The “traditional rule” is
“that state and federal legislatures have wide
discretion to pass legislation in areas where there is
medical and scientific uncertainty.” June Medical, 140
S. Ct. at 2136 (Roberts, C.J., concurring in the
judgment) (cleaned up). As shown, Roe and its progeny
rest on a factual foundation that has since been proven
wrong. At a minimum, sufficient uncertainty exists
about that foundation that the Court should return to
its traditional rule of deference to “legislative
product[s]” that “reflect[] . . . advancing medical
knowledge and techniques.” Roe, 410 U.S. at 116.
Mississippi’s law, which protects unborn children who
can experience pain, is an example of a reasonable
response to advances in scientific knowledge—a
response that warrants deference by the federal
judiciary.
Finally, reconsideration of Roe and its progeny is
required “[t]o avoid an arbitrary discretion in the
courts.” The Federalist No. 78, at 539 (A. Hamilton) (J.
Cooke ed. 1961). “[A]rbitrary criteria” like viability “for
who is the subject of rights undermine[] the basic
principles of human justice.”109 Under the viability
rule, “equality of treatment is impossible to achieve;
predictability is destroyed; judicial arbitrariness is
facilitated.” June Medical, 140 S. Ct. at 2135–36
(Roberts, C.J., concurring in the judgment) (ellipses
109 Maureen
L. Condic, When Does Human Life Begin? The
Scientific Evidence and Terminology Revisited, 8 U. St. Thomas
J.L. & Pub. Pol’y 44, 73 (2013).
29
omitted) (quoting Antonin Scalia, The Rule of Law as
a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989)).
That is because the viability rule “tie[s] a state’s
interest in unborn children to developments in
obstetrics, not to developments in the unborn.”
Stenehjem, 795 F.3d at 774. For instance, the viability
rule discriminates against children who happen to be
born in areas with less sophisticated medical
technology.110 Justice Blackmun’s fear that viability
was as “arbitrary” as “any other selected point”111 was
perhaps understandable considering the limited
knowledge in 1973. And it might be one thing to accept
an arbitrary rule like viability if there was “no
line . . . which is more workable.” Casey, 505 U.S. at
870. But given the state of scientific evidence, we now
know that States have a compelling interest beginning
well before viability in protecting unborn life, that
other rules are far more workable and equitable than
viability, and that only those rules—as established by
States—can protect unborn children who have
developed all the features of humanity.
110 Compounding the problems with viability is the scientific fact
that estimating gestational age by ultrasound later in the
pregnancy has a significantly higher margin of error. See Am.
Coll. of Obstetricians & Gynecologists et al., Committee Opinion
Number 700: Methods for Estimating the Due Date 3 (May 2017),
available at https://www.acog.org/-/media/project/acog/acogorg/
clinical/files/committee-opinion/articles/2017/05/methods-forestimating-the-due-date.pdf [https://perma.cc/8T5C-9NVC] (last
visited July 28, 2021) (explaining that between twenty-two and
twenty-seven weeks, ultrasound dating may be inaccurate by up
to two weeks in either direction).
111 Greenhouse, supra note 3, at 95 (quoting Justice Blackmun).
30
CONCLUSION
A 1963 Planned Parenthood pamphlet for
expectant mothers said that abortion “kills the life of
a baby after it has begun.”112 In Roe, this Court may
not have had the scientific evidence to know how true
that statement was. Perhaps the Court “is not to be
reproached . . . for a past judgmental determination
made in the light of then-existing medical knowledge.”
Doe, 410 U.S. at 190. But scientific evidence now
establishes that “a fetus is a living organism while
within the womb.” Gonzales, 550 U.S. at 147. States
have a vital interest in protecting the “life of the
unborn.” Id. at 158. This Court should therefore return
to the States “the right to readjust [their] views and
emphases in the light of the advanced knowledge”
available today—just as Mississippi has done. Doe,
410 U.S. at 191. The judgment below should be
reversed.
Respectfully submitted,
CHRISTOPHER E. MILLS
Counsel of Record
Spero Law LLC
1050 Johnnie Dodds Blvd. #83
Mt. Pleasant, SC 29465
(843) 606-0640
cmills@spero.law
Counsel for Amici Curiae
JULY 29, 2021
112 Brief for Women for the Unborn as Amicus Curiae Supporting
Appellee at 10 (quoting Planned Parenthood, “Plan Yc” Children
for Health and Happiness (1963)), Roe, 410 U.S. 113 (No. 70-18),
1971 WL 134284.
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.