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 AMICUS CURIAE

FAMILY RESEARCH COUNCIL

IN SUPPORT OF PETITIONERS

TRAVIS WEBER

KATHERINE BECK JOHNSON

FAMILY RESEARCH COUNCIL

801 G Street, N.W.

Washington, D.C. 20001

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

July 29, 2021

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... iii

STATEMENT OF INTEREST ....................................1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ...............................................................2

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

I.

The Casey plurality’s undue-burden

standard has been unworkable from the

start .......................................................................5

A. The Casey plurality failed to provide an

objective standard for determining

whether a burden is “undue.” ........................5

B. Over time, the undue-burden standard

has proven to be nothing more than a

vehicle for judges to make policy

judgments .......................................................9

C. The undue-burden standard has

created intractable confusion among

the lower courts ............................................12

D. The undue-burden standard treats

abortion as a “super right,” shielding

bad actors from accountability .....................17

II. The viability rule is similarly arbitrary and

unworkable..........................................................20

A. The viability rule fails to honor the

state interests involved ................................20

ii

B. There is scholarly consensus that the

viability rule is arbitrary .............................24

C. Scientific and medical advances since

Roe and Casey underscore the

standard’s unworkability .............................28

CONCLUSION ..........................................................32

iii

TABLE OF AUTHORITIES

Cases

A Woman's Choice-E. Side Women's

Clinic v. Newman,

305 F.3d 684 (7th Cir. 2002)........................ 6, 14, 16

Barnes v. State of Miss.,

992 F.2d 1335 (5th Cir. 1993)............................ 3, 12

City of Akron v. Akron Ctr. For

Reprod. Health,

462 U.S. 416 (1983).................................... 22, 24, 26

EMW Women's Surgical Ctr., P.S.C. v.

Friedlander,

960 F.3d 785 (6th Cir. 2020)............................ 13, 15

Gonzales v. Carhart,

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

Harris v. W. Ala. Women's Ctr.,

139 S. Ct. 2606 (2019)............................................ 19

Isaacson v. Horne,

716 F.3d 1213 (9th Cir. 2013).......................... 28, 29

Jackson Women's Health Org. v. Currier,

760 F.3d 448 (2014) ............................................... 11

June Med. Servs. LLC v. Russo,

140 S. Ct. 2103 (2020).................................... passim

iv

Karlin v. Foust,

188 F.3d 446 (7th Cir. 1999)....................................7

Little Rock Family Planning Services v.

Rutledge,

984 F.3d 682 (8th Cir. 2021).................................. 23

McCorvey v. Hill,

385 F.3d 846 (2004) ......................................... 22, 23

MKB Mgmt. Corp. v. Stenehjem,

795 F.3d 768 (8th Cir. 2015)...................... 22, 29, 31

Obergefell v. Hodges,

576 U.S. 644 (2015)................................................ 11

Payne v. Fontenot,

925 F. Supp. 414 (M.D. La. 1995) ................. 3, 4, 13

Planned Parenthood of Indiana & Kentucky,

Inc. v. Box,

949 F.3d 997 (7th Cir. 2019).................................. 10

Planned Parenthood of Indiana & Kentucky,

Inc. v. Box,

991 F.3d 740 (7th Cir. 2021)............................ 13, 15

Planned Parenthood of Indiana and

Kentucky, Inc. v. Comm'r of Indiana State

Dep't of Health,

888 F.3d 300 (7th Cir. 2018)........................ 5, 17, 20

Planned Parenthood of Southeastern Pa. v.

Casey,

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

v

Planned Parenthood of Wisconsin, Inc. v.

Schimel,

806 F.3d 908 (7th Cir. 2015).................................. 16

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021)................ 13, 14, 20, 21

Roe v. Wade,

410 U.S. 179 (1973)............................ 3, 5, 24, 26, 28

Romer v. Evans,

517 U.S. 620 (1996)................................................ 28

Stenberg v. Carhart,

530 U.S. 914 (2000)........................................ passim

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists,

476 U.S. 747 (1986).......................................... 21, 22

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989)................................................ 26

Whole Woman's Health v. Hellerstedt,

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

Whole Woman's Health v. Lakey,

769 F.3d 285 (5th Cir. 2014).................................. 16

Other Authorities

Randy Beck, Twenty-Week Abortion Statutes:

Four Arguments, 43 Hastings Const. L.Q.

187 (2016) ................................................... 24, 25, 26

vi

Randy Beck, Gonzales, Casey, and the

Viability Rule, 103 Nw. U. L. Rev. 249

(2009) ................................................................ 28, 31

Khiara M. Bridges, Capturing the Judiciary:

Carhart and the Undue Burden Standard,

67 Wash. & Lee L. Rev. 915 (2010) .........................6

Khiara M. Bridges, “Life” in the Balance:

Judicial Review of Abortion Regulations,

U.C. Davis L. Rev. 1285 (2013) ............................. 26

Stephen Coleman, The Ethics of Artificial

Uteruses: Implications for Reproduction and

Abortion (2004) ......................................................31

J. Shoshanna Ehrlich, Minors as Medical

Decision Makers: The Pretextual Reasoning

of The Court in the Abortion Cases, 7 Mich.

J. Gender & L. 65 (2000) .........................................9

Christopher L. Eisgruber, The Fourteenth

Amendment’s Constitution,

69 S. Cal. L. Rev. 47 (1995) ................................... 25

John Hart Ely, The Wages of Crying Wolf: A

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

(1973) ...................................................................... 25

Eyal Press, A Botched Operation, New Yorker

(Jan 26, 2014), bit.ly/2TxM0TU ............................ 18

Enjoli Francis, Abortion Doctor Kermit Gosnell

Guilty of First Degree Murder, ABC News

(May 13, 2013), abcn.ws/3726vex .......................... 18

vii

W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 55 (5th ed. 1984) ...................... 27

Joseph F. Kobylka, Tales from the Blackmun

Papers: A Fuller Appreciation of Harry

Blackmun's Judicial Legacy, 70 Mo. L. Rev.

1075 (2005) ............................................................. 26

Paul Benjamin Linton, The Legal Status of the

Unborn Child Under State Law, 6 U. St.

Thomas J.L. & Pub. Pol’y 141 (2011) .................... 27

Paul Benjamin Linton & Maura K. Quinlan,

Does Stare Decisis Preclude Reconsideration

of Roe v. Wade? A Critique of Planned

Parenthood v. Casey .................................. 27, 30, 31

Richard S. Myers, Lower Court “Dissent” from

Roe and Casey, 18 Ave Maria L. Rev. 1

(2020) ...................................................................... 24

Michael Stokes Paulsen, Abortion as an

Instrument of Eugenics, 134 Harv. L. Rev. F.

415 (2021) ...............................................................19

Nancy K. Rhoden, Trimesters and Technology:

Revamping Roe v. Wade, 95 Yale L.J. 639

(1986) ...................................................................... 25

John A. Robertson, Abortion and Technology:

Sonograms, Fetal Pain, Viability, and Early

Prenatal Diagnosis, 14 U. Pa. J. Const. L.

327 (2011) ............................................................... 25

viii

Elizabeth Chloe Romanis, Is "Viability”

Viable? Abortion, Conceptual Confusion

and the Law in England and Wales and

the United States, 7 J.L. & Biosciences

(2020)............................................................ 4, 24, 29

Katherine C. Sheehan, Toward A

Jurisprudence of Doubt,

7 UCLA Women’s L.J. 201 (1997) ...........................8

David M. Smolin, The Religious Root and

Branch of Anti-Abortion Lawlessness, 47

Baylor L. Rev. 119 (1995) ...................................... 25

Cass R. Sunstein et. al., Ideological Voting on

Federal Courts of Appeals: A Preliminary

Investigation, 90 Va. L. Rev. 301 (2004) ............... 11

Niraj Thakker, Undue Burden with A Bite:

Shielding Reproductive Rights from the

Jaws of Politics, 28 U. Fla. J.L. & Pub. Pol’y

431 (2017) ............................................................... 11

Laurence H. Tribe, Foreword: Toward A Model

of Roles in the Due Process of Life and Law,

87 Harv. L. Rev. 1 (1973) ....................................... 25

1

STATEMENT OF INTEREST 1

Family Research Council (FRC) is a nonprofit

research and educational organization that seeks to

advance faith, family, and freedom in public policy

from a biblical worldview. FRC recognizes and

respects the inherent dignity of every human life from

conception until death and believes that the life of

every human being is an intrinsic good, not something

whose value is conditional upon its usefulness to

others or to the state. FRC also recognizes the

inherent dignity of every woman and thus supports

proper medical ethics and standards aimed at

protecting the health and well-being of women.

1 Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus curiae or their counsel have made a monetary

contribution to the preparation or submission of this brief. All

parties have consented to the filing of this brief.

2

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

In Casey, a plurality recognized that Roe and its

trimester framework were unworkable and

introduced a new “controlling standard” that was

intended to provide judges clarity in deciding abortion

cases. Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833, 877 (1992) (plurality op.). But

Casey only made things worse. Created “out of whole

cloth,” id. at 964 (Rehnquist, C.J., concurring in the

judgment in part, dissenting in part), Casey’s undueburden standard provided no rule of law, instead

forcing judges to evaluate abortion regulations on the

basis of their own personal value judgments. And its

viability rule relied on ever-changing medical

technology, while preventing states from acting upon

their important interests in protecting nascent life

and beyond.

In the decades since Casey, “[m]embers of this

Court have decried the unworkability of [its] abortion

case law and repeatedly called for course corrections

of varying degrees.” June Med. Servs. LLC v. Russo,

140 S. Ct. 2103, 2152 (2020) (Thomas, J., dissenting).

This case presents an ideal opportunity for the Court

to correct its course.

Petitioners ask the Court to overrule Roe and

Casey because it cannot reconcile those cases with

more recent precedent and with scientific

advancements showing a compelling state interest in

fetal life far earlier than those cases suggest. See Pet.

Br. at 1. Amicus agrees. Amicus writes separately to

emphasize that the undue-burden standard and its

3

accompanying

viability

rule

are

hopelessly

unworkable, have proven to be nothing more than a

vehicle for judges to make policy judgments, and have

inflicted significant damage on this nation. In short,

Amicus believes that Roe and “Casey must be

overruled.” Stenberg v. Carhart, 530 U.S. 914, 955

(2000) (Scalia, J., dissenting).

ARGUMENT

From the outset, the undue-burden standard was

unworkable. Lacking any grounding in the

Constitution, the undue-burden standard is

“inherently manipulable” and neither guides nor

constrains judges in navigating this controversial

area. Casey, 505 U.S. at 986 (Scalia, J., concurring in

the judgment in part, dissenting in part). Instead of

aiding

judges

in

“neutral

and

principled

administration” of the law, June Med., 140 S. Ct. at

2171 (Gorsuch, J., dissenting), the undue-burden

standard forces them to rely on their own moral

intuitions to decide cases. That practice perverts the

judicial function and undermines the rule of law.

Not surprisingly, the undue-burden standard has

created intractable confusion among the lower courts.

Mere months after this Court decided Casey, lower

courts explained that “passing on the constitutionality

of state statutes regulating abortion ... ha[d] become

neither less difficult nor more closely anchored to the

Constitution.” Barnes v. State of Miss., 992 F.2d 1335,

1337

(5th

Cir.

1993)

(Jones,

J.).

“The undue burden test announced in Casey,” they

complained, was “more easily articulated than

applied.” Payne v. Fontenot, 925 F. Supp. 414, 420

4

n.24 (M.D. La. 1995). That confusion persists today.

And because the undue-burden standard amounts to

an effects test, any and all restrictions on abortion

might be deemed “undue.” Such a scheme fails to give

judges any meaningful guidance and hinders a state’s

ability to regulate even the most extreme abortion

practices.

The viability standard is similarly unworkable.

Casey itself acknowledged that a viability standard

was “imprecis[e]” and that the “medical community ...

will continue to explore the matter.” 505 U.S. at 870

(plurality op.). In so doing, Casey perpetuated a rule

grounded not in biological reality, but in complex,

contested statistical probabilities about fetal survival

rates and irrelevant factors such as wealth,

geography, and the optimism of the doctors making

the predictions. Indeed, Casey’s rule “depend[s]”

largely on “medical technology.” Id. at 955 (Rehnquist,

C.J., concurring in the judgment in part, dissenting in

part). Even pro-choice scholars have recognized that

“[v]iability is an incoherent legal concept” and “a

conceptually illegitimate basis on which to ground

abortion regulation.” Elizabeth Chloe Romanis, Is

"Viability” Viable? Abortion, Conceptual Confusion

and the Law in England and Wales and the United

States, 7 J.L. & Biosciences 1, 28, 1 (2020). Viability

as a standard has been nearly universally rejected by

legal scholars, within other areas of law, and by

countries with strong pro-abortion regimes. This

Court should reject it too.

Ultimately, these standards prop up abortion as

“the most favored right in American law.” Planned

5

Parenthood of Indiana and Kentucky, Inc. v. Comm’r

of Indiana State Dep’t of Health, 888 F.3d 300, 320

(7th Cir. 2018) (Manion, J., concurring in the

judgment in part, dissenting in part). But this Court

“never should have bent the rules for favored rights in

the first place.” Whole Woman’s Health v. Hellerstedt,

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

And it should not continue to uphold “special

exceptions for special rights” today. Id. The Court

should overrule Roe and Casey and reverse the

decision below.

I.

The

Casey

plurality’s

undue-burden

standard has been unworkable from the

start.

A. The Casey plurality failed to provide an

objective standard for determining

whether a burden is “undue.”

The Casey plurality invented the undue-burden

standard “out of whole cloth.” Casey, 505 U.S. at 964

(Rehnquist, C.J., concurring in the judgment in part,

dissenting in part). From the beginning, the undueburden standard lacked any “historical or doctrinal

pedigree,” Stenberg, 530 U.S. at 982 (Thomas, J.,

dissenting), and “was as doubtful in application as it

[was] unprincipled in origin.” Id. at 955 (Scalia, J.,

dissenting) (cleaned up).

Casey’s definition of an undue burden was circular

from the start. An “undue burden,” it explained, is

“shorthand for the conclusion that a state regulation

has the purpose or effect of placing a substantial

obstacle in the path of a woman seeking an abortion of

6

a nonviable fetus.” Id. at 877 (plurality op.) (emphasis

added). But these two empty catchphrases were never

more than synonyms for each other. See Khiara M.

Bridges, Capturing the Judiciary: Carhart and the

Undue Burden Standard, 67 Wash. & Lee L. Rev. 915,

950 n.108 (2010) (noting that “[an] ‘undue burden’ is

synonymous with a ‘substantial obstacle.’”). Thus, the

plurality’s definition amounts to the following: “[A]n

undue burden is a shorthand for … a state regulation

[that] … plac[es] [an undue burden] in the path of a

woman seeking an abortion.” Casey, 505 U.S. at 877

(plurality op.).

This “verbal shell game” obscured the plurality’s

failure to provide “any meaningful content” to its

concocted standard. Id. at 987, 992 (Scalia, J.,

concurring in the judgment in part, dissenting in part)

(emphasis omitted). Instead of providing a “generally

applicable principle,” id. at 988, the plurality

undertook a fact-intensive analysis and limited its

conclusions to the “evidence on this record.” Id. at 884

(plurality op.). Casey did not, for example, establish

that 24-hour waiting periods were acceptable per se

but only that Pennsylvania’s particular 24-hour

waiting period “on the record before [it]” was

acceptable. Id. at 887. These qualified conclusions

help explain how courts can use Casey to invalidate

abortion regulations nearly identical to those Casey

approved. See, e.g., A Woman’s Choice-E. Side

Women's Clinic v. Newman, 305 F.3d 684, 693 (7th

Cir. 2002) (Easterbrook, J.) (“For seven years Indiana

has been prevented [by a federal district court] from

enforcing a[n] [informed consent] statute materially

identical to a law held valid by the Supreme Court in

7

Casey.”); Karlin v. Foust, 188 F.3d 446, 485 (7th Cir.

1999) (“While a twenty-four hour waiting period that

requires two trips to an abortion provider has been

found not to impose an undue burden on Pennsylvania

women based on the circumstances of that state at the

time the Court decided Casey, a similar provision in

another state’s abortion statute could well be found to

impose an undue burden on women in that state

depending on the interplay of factors.”). Indeed,

“[b]ecause the portion of the joint opinion adopting

and describing the undue burden test provides no ...

useful guidance,” courts “must turn to [Casey’s

lengthy factual analysis] applying that standard” to

the present facts of its case “for further guidance.”

Casey, 505 U.S. at 990 (Scalia, J., concurring in the

judgment in part, dissenting in part). This is why

Justice Scalia rightly recognized from the start that

the undue-burden standard is “hopelessly unworkable

in practice.” Id. at 986.

The Casey plurality provided no objective way to

decide whether a burden is “undue.” Id. at 877

(plurality op.). Instead, the plurality “highlight[ed]

certain facts in the record” and “then simply

announce[d] that the provision either d[id] or d[id] not

impose a ‘substantial obstacle’ or an ‘undue burden.’”

Id. at 991 (Scalia, J., concurring in the judgment in

part, dissenting in part). With no legal principle to

extract from the plurality opinion, see id. at 990, Casey

leaves courts to make their own policy judgments

about when an obstacle is “substantial” and,

accordingly, when a burden is “undue.”

8

The plurality’s treatment of the spousalnotification and parental-consent requirements

illustrates the point. After dedicating ten pages of its

opinion to detailing the complex effects of spousal

abuse on women, the plurality rejected the spousalnotification requirement as “repugnant to [their]

present understanding of marriage.” Id. at 838

(plurality op.). And in the next breath and “almost

without discussion,” Katherine C. Sheehan, Toward A

Jurisprudence of Doubt, 7 UCLA Women’s L.J. 201,

224 (1997), the plurality upheld the parental-consent

requirement “on the quite reasonable assumption that

minors will benefit from consultation with their

parents and that children will often not realize that

their parents have their best interests at heart.”

Casey, 505 U.S. at 895 (plurality op.).

This inconsistent and contradictory treatment

cannot be explained by legal principle. “The ‘undue

burden’ inquiry does not in any way supply the

distinction” drawn by the plurality. Id. at 965

(Rehnquist, C.J., concurring in the judgment in part,

dissenting in part); see also Sheehan, supra, 225 (“In

a world where all parents have the best interests of

their children at heart, all wives benefit from

consultation with their husbands. The spousal notice

provision, moreover, imposes less of a burden on the

pregnant woman than the parental consent

requirement does.”). Rather, the plurality relied on

“policy judgment[s]” reflecting their “philosophical

views” about marriage and parenthood. Casey, 505

U.S. at 965 (Rehnquist, C.J., concurring in the

judgment in part, dissenting in part); Stenberg, 530

U.S. at 982 (Thomas, J., dissenting). See also J.

9

Shoshanna Ehrlich, Minors as Medical Decision

Makers: The Pretextual Reasoning of The Court in the

Abortion Cases, 7 Mich. J. Gender & L. 65, 82 n.66

(2000) ([S]ensitivity to the dangers of family violence

disappeared without a trace when the Court went on

to consider and uphold the parental consent provision

of Pennsylvania’s law.”) “Under the guise of the

Constitution,” the plurality thus “impart[ed] its own

preferences on the States in the form of a complex

abortion code.” Casey, 505 U.S. at 966 (Rehnquist,

C.J., concurring in the judgment in part, dissenting in

part).

Unworkable from the start, the undue-burden

standard was “not built to last.” Id. at 965. The Court

should abandon it.

B. Over time, the undue-burden standard

has proven to be nothing more than a

vehicle for judges to make policy

judgments.

Abortion remains “one of the most contentious and

controversial [issues] in contemporary American

society.” Stenberg, 528 U.S. at 947 (O’Connor, J.,

concurring). It is thus “exactly the context where this

Court should be leaning most heavily on the rules of

the judicial process” that require judges to stay in

their “constitutionally assigned lane.” June Med., 140

S. Ct. at 2171 (Gorsuch, J., dissenting). The undueburden standard is “inherently manipulable” and

neither guides nor constrains judges in navigating

this controversial area. Casey, 505 U.S. at 986 (Scalia,

J., concurring in the judgment in part, dissenting in

part). Instead of aiding judges in “neutral and

10

principled administration” of the law, June Med., 140

S. Ct. at 2171 (Gorsuch, J., dissenting), the undueburden standard authorizes—indeed, forces—them to

rely on their own moral intuitions to decide cases.

That practice perverts the judicial function and

undermines the rule of law.

The undue-burden standard makes it “impossible”

to say what the law is. Stenberg, 530 U.S. at 955

(Scalia, J., dissenting). As Judge Easterbrook put it,

the standard “does not call on a court … to interpret a

text” nor to “produce a result through interpretation

of the Supreme Court’s opinions.” Planned

Parenthood of Indiana & Kentucky, Inc. v. Box, 949

F.3d 997, 999 (7th Cir. 2019) (Easterbrook, J.,

concurring in denial of rehearing en banc). Thus “a

court of appeals cannot decide whether [any law in a

particular context] is an ‘undue burden’ on abortion”

because that is “a matter of judgment” reserved “only

[to] the Justices, the proprietors of the undue-burden

standard.” Id. at 998-99 (emphasis added).

Members of this Court, too, have found it

“impossible” to make principled decisions under that

standard. Stenberg, 530 U.S. at 955 (Scalia, J.,

dissenting). In every case, the undue-burden analysis

boils down to a “policy-judgment-couched-as-law.” Id.

Accordingly, “whether a burden is deemed undue

depends heavily on which factors the judge considers

and how much weight he accords each of them.’” June

Med., 140 S. Ct. at 2180 (Gorsuch, J., dissenting)

(cleaned up). “[I]t should not be terribly shocking

to see that … judges vote their convictions” when left

to their own moral intuitions. Cass R. Sunstein et.

11

al., Ideological Voting on Federal Courts of Appeals: A

Preliminary Investigation, 90 Va. L. Rev. 301, 352-53

(2004). Indeed, empirical research confirms that “the

undue burden standard has given judges the ability to

make decisions based on their political or ideological

beliefs.” Niraj Thakker, Undue Burden with A Bite:

Shielding Reproductive Rights from the Jaws of

Politics, 28 U. Fla. J.L. & Pub. Pol’y 431, 474 (2017);

see Sunstein, supra, 352-53.

By forcing judges to make such value judgments,

the undue-burden standard not only frustrates the

judicial function but undermines the rule of law. The

rule of law rests on “the perception—and reality—that

[judges] exercise humility and restraint in deciding

cases according to the Constitution and law.”

Obergefell v. Hodges, 576 U.S. 644, 708 (2015)

(Roberts, C.J., dissenting). If anything, “the judicial

responsibility to avoid standardless decisionmaking is

at its apex” when the Court approaches controversial

issues. June Med., 140 S. Ct. at 2179 (Gorsuch, J.,

dissenting). Yet the undue-burden standard

“perver[ts]” this logic. Jackson Women’s Health Org. v.

Currier, 760 F.3d 448, 469 (2014) (Garza, J.,

dissenting). Instead, it invites judges to “make policy

decisions about which abortion restrictions are

‘undue,’ and then escape any jurisprudential

ramifications of those decisions by taking refuge in the

purportedly distinct factual context of that particular

application.” Id. In applying such a malleable

standard—especially to so controversial an issue—the

undue-burden

standard

“deliver[s]

neither

predictability nor the promise of a judiciary bound by

12

the rule of law.” Hellerstedt, 136 S. Ct. at 2321

(Thomas, J., dissenting).

C. The undue-burden standard has created

intractable confusion among the lower

courts.

In Hellerstedt, Justice Thomas predicted that the

Court’s application of the undue-burden standard

would “surely mystify lower courts for years to come.”

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

prediction has come true. Casey has only perpetuated

the “jurisprudence of doubt” it was originally meant to

address. 505 U.S. at 844 (plurality op.). More than 29

years after this Court invented the undue-burden

standard, the lower courts still struggle with its

meaning and application. Indeed, the undue-burden

standard has created confusion and division in every

court to apply it. This is no doubt due in large part to

its malleability and to the policy judgments it forces

upon judges. See supra Section I.B. The resulting

range of contradictory decisions serve as further proof

of the standard’s unworkability.

The undue-burden standard has confused the

lower courts from the start. Mere months after this

Court decided Casey, lower courts explained that

“passing on the constitutionality of state statutes

regulating abortion ... ha[d] become neither less

difficult nor more closely anchored to the

Constitution.” Barnes, 992 F.2d at 1337 (Jones, J.).

“The undue burden test announced in Casey,” they

13

complained, was “more easily articulated

applied.” Fontenot, 925 F. Supp. at 420 n.24. 2

than

That confusion persists today. Just this year, one

judge complained about the “seemingly endless task

of determining whether a law unduly burdens a

woman’s ability to obtain an abortion.” Planned

Parenthood of Indiana & Kentucky, Inc. v. Box, 991

F.3d 740, 752 (7th Cir. 2021) (Kanne, J., dissenting).

Whether any given regulation constitutes an undue

burden continues to be “more easily asked than

answered.” Preterm-Cleveland v. McCloud, 994 F.3d

512, 524 (6th Cir. 2021) (Batchelder, J.).

Of all the confusion generated by the undueburden standard, two areas have roiled the lower

courts in particular. First, the Casey plurality held

that, for facial challenges to abortion laws, a law is

invalid if it poses an “undue burden” in a “large

fraction” of “relevant” cases. Casey, 505 U.S. at 895

(plurality op.). But the lower courts are hopelessly lost

about how to conduct such an assessment. To begin

2

That confusion was not limited to the lower courts. The

three Justices who made up Casey’s plurality themselves

disagreed forcefully about the meaning and application of the

undue-burden standard only eight years later and then again

seven years after that. See Stenberg, 530 U.S. at 979 (Kennedy,

J., dissenting) (criticizing the majority for “misinterpreti[ng] …

Casey” so as to protect “a[n] [abortion] procedure many decent

and civilized people find so abhorrent as to be among the most

serious of crimes against human life”); see generally Gonzales v.

Carhart, 550 U.S. 124 (2007).

14

with, a fraction requires a numerator and a

denominator, but the plurality failed to specify how to

determine those inputs. And even assuming judges

could agree on an appropriate numerator and

denominator (they cannot), the plurality never even

suggested how to determine what constitutes a “large”

fraction.

These missing specifications render the largefraction test pure guesswork. It thus is only natural

that lower courts have found the large-fraction test

anything but “easy to apply.” McCloud, 994 F.3d at

534 (collecting cases). One circuit court has given up

altogether, declining to blindly guess at how to apply

the large-fraction test. See A Woman’s Choice-E. Side

Women’s Clinic v. Newman, 305 F.3d 684, 699 (7th

Cir. 2002) (Coffey, J., concurring) (“The Casey

plurality did not explain, and thus we refuse to peer

into the dark abyss of speculation in an attempt to

determine at precisely what point a fractional part of

a group becomes an impermissibly ‘large fraction’ and

a statute becomes unduly burdensome.”). Even this

Court “has been forthcoming about its own

difficulties” with the test. McCloud, 994 F.3d at 534.

See, e.g., June Med., 140 S. Ct. at 2176 (Gorsuch, J.,

dissenting) (noting that “this circular test is unlike

anything we apply to facial challenges anywhere

else”); Hellerstedt, 136 S. Ct. at 2343 n.11 (Alito, J.,

dissenting) (“I must confess that I do not understand

this [application of this test].”).

Several Justices and judges have recognized that

the large-fraction test is practically meaningless

because it appears to call for an equivalent numerator

15

and denominator, which yields no fraction at all.

Gonzales v. Carhart, 550 U.S. 124, 188 n.10

(Ginsburg, J., dissenting, joined by Stevens, Souter,

Breyer, JJ.) (“There is … no fraction because the

numerator and denominator are the same.”); see

Hellerstedt, 136 S. Ct. at 2343 n.11 (Alito, J.,

dissenting) (“Under the [majority’s] holding, we are

supposed to use the same figure (women actually

burdened) as both the numerator and the

denominator. By my math, that fraction is always ‘1,’

which is pretty large as fractions go.”); see e.g., EMW

Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d

785, 809 (6th Cir. 2020) (defending an application of

the large fraction test that found that “100%” of the

“relevant individuals … would be [unduly]

burdened”). In short, the large-fraction test is

hopelessly flawed and “ultimately standardless.”

Casey, 505 U.S. at 988 (Scalia, J., concurring in the

judgment in part, dissenting in part).

Second, whether this Court requires a balancing

test has also divided the lower courts. Some circuits,

for example, have “regularly,” EMW, 960 F.3d at 796,

interpreted the undue-burden standard to require

“balancing [of the] law’s benefits against its burdens,”

Box, 991 F.3d at 743, such that abortion regulations

must “confer[] … benefits sufficient to justify the

burdens upon [abortion] access.” Hellerstedt, 136 S.

Ct. at 2300; see also Pet. Supp. Br. at 1-3. Others have

generally rejected this “home-brewed” balancing test

in favor of rational-basis review combined with a

“substantial obstacle” determination. Planned

Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d

908, 931 (7th Cir. 2015) (Manion, J., dissenting); see

16

also Whole Woman’s Health v. Lakey, 769 F.3d 285,

297 (5th Cir. 2014) (“[S]ome circuits have used the

balancing test to enjoin abortion regulations; other

circuits—including

ours—have

not.”).

As

a

consequence, courts employing the balancing test

have employed the undue-burden standard to strike

down common-sense regulations—including those

that were seemingly approved by the Court in Casey.

See, e.g., Newman, 305 F.3d at 693 (Easterbrook, J.).

This very split in authority has now worked its

way to this Court, which embraced a balancing

approach in 2016 only to have a majority of its

individual members renounce it four years later. See

June Med., 140 S. Ct. at 2182 (Kavanaugh, J.,

dissenting) (“[F]ive Members of the Court reject the

Whole Woman’s Health cost-benefit standard”). And so

lower courts continue to struggle over whether Casey

requires a balancing test.

Three decades on, the undue-burden standard’s

only contributions to abortion jurisprudence are

confusion and division. That so many lower courts

could have adopted (and continue to embrace) such

contradictory interpretations of Casey serves as

further “proof,” Stenberg, 530 U.S. at 955 (Scalia, J.,

dissenting), of Casey’s “inherently manipulable” and

“hopelessly unworkable” standard, Casey, 505 U.S., at

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

dissenting in part). It was clear from the beginning,

and it is clear now: “Casey must be overruled.”

Stenberg, 530 U.S. at 956 (Scalia, J., dissenting).

17

D. The

undue-burden

standard

treats

abortion as a “super right,” shielding bad

actors from accountability.

The undue-burden standard elevates abortion

above all other rights in our constitutional framework.

Because the undue-burden standard amounts to an

effects test, any and all restrictions on abortion might

be deemed “undue.” This ultimately hinders a state’s

ability to regulate even the most extreme abortion

practices.

The Casey plurality rejected a universal strict

scrutiny regime for abortion. It did so because such a

regime was “incompatible with the recognition” of a

“substantial state interest in potential life throughout

pregnancy.” Casey, 505 U.S. at 876 (plurality op.).

Instead, the plurality created the undue-burden

standard to serve as “the appropriate means of

reconciling the State’s interest with the [abortion

right].” Id. Its creation, however, has not only failed to

protect the states’ substantial interest in fetal life the

Casey plurality itself recognized but has also

obstructed states from promoting other compelling

interests, such as protecting women from unsafe and

unethical medical practices.

The undue-burden standard thus treats abortion

as a “super-right.” Indiana State Dep’t of Health, 888

F.3d at 311 (Manion, J., concurring in the judgment in

part, dissenting in part). Abortion thus is perceived as

“more sacrosanct even than the enumerated rights in

the Bill of Rights,” because it is “the only one that may

not be infringed even for the very best reason.” Id. at

312. As a result, bad actors in the abortion industry

18

enjoy special protections from states seeking to

regulate them.

Because any burden can be deemed “undue,” the

undue-burden standard has the practical effect of

hindering even those state laws aimed at stopping the

most egregious abortion practices. It remains to be

seen, for example, whether a state may shut down a

particularly unethical practitioner if doing so might

substantially limit the availability of abortions. In

states with just one abortion facility or in rural areas

where access to abortion clinics is already limited,

must an abortionist like Kermit Gosnell, see Enjoli

Francis, Abortion Doctor Kermit Gosnell Guilty of

First Degree Murder, ABC News (May 13, 2013),

abcn.ws/3726vex, or Steven Chase Brigham, see Eyal

Press, A Botched Operation, New Yorker (Jan 26,

2014), bit.ly/2TxM0TU, be left at large, lest their

removal be a substantial obstacle to women in those

states? If taken at its word, the undue-burden

standard would seemingly forbid any attempt to

protect women from unethical practitioners and their

abhorrent practices. This leaves already vulnerable

women even more vulnerable. See Francis, supra

(explaining that in Gosnell’s “house of horrors,” “many

of the women patients were infected with sexually

transmitted diseases from contaminated instruments,

had suffered from botched procedures or had been

given overdoses of dangerous drugs”).

Sadly, this is already the case. The undue-burden

standard already bars states from regulating

practitioners who lack admitting privileges at any

hospital whatsoever. See e.g., June Med., 140 S. Ct. at

19

2157 (Alito, J., dissenting) (“The grand jury concluded

that closer supervision would have uncovered

Gosnell’s egregious health and safety violations.

Gosnell had a medical license, but it is doubtful that

any hospital would have given him admitting

privileges.”). It has permitted this Court to strike

down laws protecting women from practitioners or

practices that are “[dis]respect[ful],” “misleading,” or

“[h]azard[ous].” Hellerstedt, 136 S. Ct. at 2352

(Thomas, J., dissenting). The undue-burden standard

has also protected abortionists whose practices

“approach[] infanticide,” Stenberg, 530 U.S. at 100607 (Thomas, J., dissenting) (“The baby’s little fingers

were clasping and unclasping, and his little feet were

kicking. Then the doctor stuck the scissors in the back

of his head, and the baby’s arms jerked out, like a

startle reaction, like a flinch, like a baby does when he

thinks he is going to fall. The doctor opened up the

scissors, stuck a high-powered suction tube into the

opening, and sucked the baby’s brains out. Now the

baby went completely limp.”) (internal citations

omitted), and those who would “dismember[] … a

living child,” Harris v. W. Ala. Women’s Ctr., 139 S.

Ct. 2606, 2607 (2019) (Thomas, J., concurring in the

denial of cert.). And it has protected those who would

knowingly perform abortions based on a child’s sex,

race, or disability. See id.; see generally Michael

Stokes Paulsen, Abortion as an Instrument of

Eugenics, 134 Harv. L. Rev. F. 415 (2021). “A civilized

society” would not tolerate these practices, much less

prevent individual states from passing reasonable

measures to stop them. Stenberg, 530 U.S. at 1007-08

(Thomas, J., dissenting).

20

Ultimately, the undue-burden standard props up

abortion as “the most favored right in American law.”

Indiana State Dep’t of Health, 888 F.3d at 320

(Manion, J., concurring in the judgment in part,

dissenting in part). But these “special exceptions for

special rights” continue to shield bad actors from

accountability. Hellerstedt, 136 S. Ct. at 2322

(Thomas, J., dissenting). This Court should not

continue to “bend the rules” for abortion. Id. at 2321.

II. The viability rule is similarly arbitrary and

unworkable.

A. The viability rule fails to honor the state

interests involved.

Under Roe and Casey, a state law restricting

abortion may not pose an “undue burden” on obtaining

an abortion before viability. Casey, 505 U.S. at 877

(plurality op.). Drawing a line at viability, however, “is

misplaced” and fails to honor the important state

interests involved. McCloud, 994 F.3d at 521, 525-26.

The Casey plurality recognized that states possess a

“substantial interest” in the preservation of unborn

life. Casey, 505 U.S. at 876 (plurality op.). By adopting

the viability rule, however, the plurality imposed an

arbitrary standard that frustrates state efforts to

advance that “substantial interest.” Moreover, the

viability rule’s inability to account for other important

state interests beyond the protection of nascent life,

including preventing discriminatory abortions,

protecting women from coercion to abort by

physicians, and protecting the integrity and ethics of

the medical profession. “The strength of these

interests is the same throughout pregnancy” and does

21

not “turn[] on the viability of the fetus.” McCloud, 994

F.3d at 521. Indeed, if a state’s interests are

“compelling” enough after viability to support a

prohibition, they are “equally compelling before” then.

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747, 795 (1986) (White, J.,

dissenting).

The Casey plurality acknowledged that “there is a

substantial state interest in potential life throughout

pregnancy.” Casey, 505 U.S. at 876 (plurality op.)

Indeed, the plurality argued that the trimester

framework should be abandoned because it had failed

to “fulfill Roe’s own promise that the State has an

interest in protecting fetal life or potential life.” Id.

But the viability rule has failed to fulfill this “promise”

just the same.

The viability rule arbitrarily discounts states’

substantial interest in pre-viability fetal life. The

Casey plurality claimed that “[b]efore [fetal] viability”

the states’ interest in protecting fetal life is “not strong

enough to support” the prohibition or imposition of an

undue burden on abortion access. Id. at 846. The

plurality, however, failed to provide any meaningful,

non-cursory justification for the viability rule. See

infra Section II.B. As Justice O’Connor recognized,

“potential life is no less potential in the first weeks of

pregnancy than it is at viability or afterward.” City of

Akron v. Akron Ctr. For Reprod. Health (Akron I), 462

U.S. 416, 461 (1983) (O’Connor, J., dissenting). The

states’ interest, moreover, “is in the fetus as an entity

in itself, and [because] the character of this entity does

not change at the point of viability under conventional

22

medical wisdom[,] … the States interest, if compelling

after viability, is equally compelling before viability.”

Thornburgh, 476 U.S. at 795 (White, J., dissenting).

The plurality cannot have it both ways. If there is a

substantial state interest after viability, then there is

a substantial state interest before viability.

The viability rule also removes states’ ability to

adapt abortion regulations to advances in science and

medicine. See MKB Mgmt. Corp. v. Stenehjem, 795

F.3d 768, 774 (8th Cir. 2015) (Shepherd, J.) (“By

taking this decision away from the states, the Court

has also removed the states’ ability to account for

advances in medical and scientific technology [that]

have greatly expanded our knowledge of prenatal

life.”) (internal citations omitted). Courts are not

“suited to make the necessary factual judgments”

about viability and the “medical” practice of abortion.

Akron I, 462 U.S. at 458 (O’Connor, J., dissenting).

That is because “science … progress[es] even though

[this] Court averts its eyes,” and legislatures are most

capable of debating and responding to that progress.

McCorvey v. Hill, 385 F.3d 846, 853-54 (2004) (Jones,

J., concurring). The viability rule, however, forces

courts to “pretend to act as science review boards,”

removing the regulation of abortion from the

democratic process. Akron I, 462 U.S. at 458

(O’Connor, J., dissenting). This rule has “rendered

basic abortion policy beyond the power of our …

representative government [which] may not

meaningfully debate” abortion-related scientific and

medical advances. McCorvey, 385 F.3d at 852. The

“perverse result” of the “constitutional adjudication

23

[of] this fundamental social policy … is that … facts

no longer matter.” Id. That cannot be the rule.

Moreover, “[v]iability as a standard is overly

simplistic and overlooks harms that go beyond the

state’s interest in a nascent life alone.” Little Rock

Family Planning Services v. Rutledge, 984 F.3d 682,

693 (8th Cir. 2021) (Erickson, J., concurring). Among

other things, it “fails to adequately consider ... the

state’s ‘compelling interest in preventing abortion

from becoming a tool of modern-day eugenics.’” Id. at

693 (Shepherd, J., concurring). States undoubtedly

have a “compelling interest” in the prevention of

eugenics and discriminatory trait-selective abortions,

more broadly. Id. The viability rule, however, acts as

a straitjacket, preventing states from acting upon this

compelling interest. Accordingly, lower courts have

complained about being compelled to apply the

“unworkable viability standard to [legislation] aimed

at preventing eugenics-based abortions.” Id. But there

is nothing else for them to do “unless and until [this]

Court dictates otherwise.” Id.

The viability standard has proved “unworkable”

and is “ill-fitt[ed]” to honor the states’ important

interests. Id. Accordingly, the Court should abandon

it.

B. There is scholarly consensus that the

viability rule is arbitrary.

Courts “must justify the lines [they] draw.” Casey,

505 U.S. at. 870 (plurality op.). Under Casey, viability

is the “critical fact” that determines whether an

unborn child may live or die. Id. at 860. Yet this Court

24

“has never offered any justification for the viability

rule in a majority opinion.” Randy Beck, Twenty-Week

Abortion Statutes: Four Arguments, 43 Hastings

Const. L.Q. 187, 191 (2016). And the “weak

rationalizations” articulated in separate opinions “do

not offer a principled rationale to distinguish viability

from earlier lines that might be drawn.” Id. That is

not surprising given that “[t]he choice of viability as

the point at which the state interest in potential life

becomes compelling is no less arbitrary than choosing

any point before viability or any point afterward.”

Akron I, 462 U.S. at 461 (O’Connor, J., dissenting)

(emphasis omitted). As even pro-choice scholars have

recognized, “[v]iability is an incoherent legal concept”

and “a conceptually illegitimate basis on which to

ground abortion regulation.” Romanis, supra, 28, 1.

Viability has been nearly universally rejected by legal

scholars, within other areas of law, and by countries

with strong pro-abortion regimes. This Court should

reject it too.

Legal scholars agree that the viability line is

arbitrary. Indeed, “no one defends the Court’s opinion

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

Roe and Casey, 18 Ave Maria L. Rev. 1, 6 (2020). Most

notably, Professor John Hart Ely lambasted the Roe

Court’s defense of its viability rule, noting that

“[e]xactly why that is the magic moment is not made

clear.” John Hart Ely, The Wages of Crying Wolf: A

Comment on Roe v. Wade, 82 Yale L.J. 920, 924

(1973). He concluded that “[Roe] is … a very bad

decision … because it is bad constitutional law, or

rather because it is not constitutional law and gives

almost no sense of an obligation to try to be.” Id. at

25

947. Professor Ely’s criticism “has come to summarize

the scholarly consensus that the Court failed to offer

a meaningful justification of its viability standard.”

David M. Smolin, The Religious Root and Branch of

Anti-Abortion Lawlessness, 47 Baylor L. Rev. 119, 137

n.79 (1995), Indeed, “the academic consensus [is] that

Roe failed to defend the viability rule.” Beck, Four

Arguments at 200.

Numerous legal scholars (including many who are

proponents of abortion) have condemned the viability

rule as unjustified or arbitrary. See e.g., Laurence H.

Tribe, Foreword: Toward A Model of Roles in the Due

Process of Life and Law, 87 Harv. L. Rev. 1, 4 (1973)

(“Clearly, [the Court’s explanation of the viability

standard] … offers no reason at all for what the Court

has held.”); Christopher L. Eisgruber, The Fourteenth

Amendment’s Constitution, 69 S. Cal. L. Rev. 47, 96

(1995) (criticizing Roe’s justification as “blatantly

circular”); Nancy K. Rhoden, Trimesters and

Technology: Revamping Roe v. Wade, 95 Yale L.J. 639,

664 (1986) (“[Roe provided] nothing more than the

definition of viability.”); John A. Robertson, Abortion

and Technology: Sonograms, Fetal Pain, Viability,

and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L.

327, 359 (2011) (“[T]he Court has never given a

convincing account of why viability is key,” which is

“yet another reason why the Court’s opinion struck so

many as … not founded in any valid conception of

constitutional law.”); Khiara M. Bridges, “Life” in the

Balance: Judicial Review of Abortion Regulations, 46

U.C. Davis L. Rev. 1285, 1329 (2013) (noting the

viability rule was “seemingly pulled from thin air.”).

26

It is a testament to the arbitrariness of the viability

rule that legal academia is in agreement here. 3

What’s more, the viability rule has been

abandoned as arbitrary in other areas of the law, such

as criminal law and tort law. In adopting the viability

rule from Roe, the Casey plurality claimed that

viability was appropriate because “[n]o evolution of

legal principle” nor “[legal] growth in the intervening

years has left [the viability] rule a doctrinal

anachronism.” Casey, 505 U.S. at 857, 855 (plurality

op.). That is especially untrue today. In criminal law,

for example, thirty-six states have enacted statutes

defining the killing of an unborn child (excepting

abortions) as a form of homicide, and thirty of those

states make such killings a crime without reference to

3 Individual members of this Court, too, have consistently

recognized the viability rule as arbitrary. See Joseph F. Kobylka,

Tales from the Blackmun Papers: A Fuller Appreciation of Harry

Blackmun's Judicial Legacy, 70 Mo. L. Rev. 1075, 1102 (2005)

(Justice Blackmun acknowledged in his private papers that

“viability[] is [as] equally arbitrary” as the trimester scheme)

(quoting Blackmun Papers, Box 151); Akron I, 462 U.S. at 461

(O’Connor, J., dissenting) (“[P]otential life is no less potential in

the first weeks of pregnancy than it is at viability or afterward.”)

(emphasis omitted); Webster v. Reprod. Health Servs., 492 U.S.

490, 519 (1989) (Rehnquist, CJ., joined by Kennedy, J.) (“[W]e do

not see why the State’s interest in protecting potential human

life should come into existence only at the point of viability, [or]

[why] there should therefore be a rigid line allowing state

regulation after viability but prohibiting it before viability.”);

Beck, Four Arguments, at 192 n. 30 (noting that Justices White,

Rehnquist, Scalia, and Thomas have all criticized or joined

opinions criticizing viability as arbitrary).

27

gestational age or viability. Paul Benjamin Linton &

Maura K. Quinlan, Does Stare Decisis Preclude

Reconsideration of Roe v. Wade? A Critique of Planned

Parenthood v. Casey 321-22 (citing Paul Benjamin

Linton, The Legal Status of the Unborn Child Under

State Law, 6 U. St. Thomas J.L. & Pub. Pol’y 141, 143

(2011)). Indeed, only one state, Maryland, uses

viability as the dividing line. See id. at 322 n.207.

Similarly, in tort law, courts in thirty states have

either “expressly or impliedly rejected viability as an

appropriate cutoff point for determining liability for

nonfatal prenatal injuries.” Linton, supra, 146. For

wrongful death, forty-three states “now allow recovery

… for prenatal injuries resulting in stillbirth … [and]

the modern trend, supported by legislative reform, is

toward abolishing any viability (or other gestational)

requirement.” Id. at 323-24. See also W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 55, at

369 (5th ed. 1984) (stating viability is “arbitrary”

because it “of course does not affect the question of the

legal existence of the unborn, and therefore of the

defendant’s duty, and it is a most unsatisfactory

criterion, since it is a relative matter.”). These legal

developments put to bed the plurality’s claim that

“[n]o evolution of legal principle has left [the viability

rule’s] doctrinal footings weaker than they were in

1973.” Casey, 505 U.S. at 857 (plurality op.). To the

contrary, Roe and Casey have become doctrinal

anachronisms.

Finally, even nations with very pro-abortion

regimes have rejected the viability rule. The vast

majority of countries forbid abortion after 12 weeks,

28

and “most nations, if they permit abortion at all, view

it as an act requiring justification.” Randy Beck,

Gonzales, Casey, and the Viability Rule, 103 Nw. U.

L. Rev. 249, 263-64 (2009). The United States is one of

“only six nations … [to] allow unrestricted abortion to

the point of viability.” Id. at 264. This puts the United

States in the company of China, Vietnam, and North

Korea, id., which suggests that the viability rule was

not a “reasoned statement, elaborated with great

care” but rather an arbitrary imposition of “raw

judicial power” “reflecting the views and values of the

[American] lawyer class” as it existed in 1972. Casey,

505 U.S. at 870 (plurality op.); Roe v. Wade, 410 U.S.

179, 222 (1973) (White, J., dissenting); Romer v.

Evans, 517 U.S. 620, 652 (1996) (Scalia, J.,

dissenting). This Court should abandon it now.

C. Scientific and medical advances since Roe

and Casey underscore the standard’s

unworkability.

The viability rule is unscientific. Indeed, viability

“changes as medicine changes.” Isaacson v. Horne, 716

F.3d 1213, 1233 (9th Cir. 2013) (Kleinfeld, J.,

concurring). Just between the time this Court decided

Roe and Casey, “viability dropped from 28 weeks to 23

or 24 weeks, because medical science became more

effective at preserving the lives of premature babies.”

Id. Casey itself acknowledged that a viability standard

was “imprecis[e]” and that the “medical community ...

will continue to explore the matter.” 505 U.S. at 870

(plurality op.). In so doing, Casey perpetuated a rule

grounded not in biological reality, but in complex,

contested statistical probabilities about fetal survival

29

rates and irrelevant factors such as wealth,

geography, and the optimism of the doctors making

the predictions. Indeed, Casey’s rule “depend[s]” solely

on “medical technology.” Id. at 955 (Rehnquist, C.J.,

concurring in the judgment in part, dissenting in

part). Such “imprecision” was not “tolerable” then, as

the plurality claimed, and it is not “tolerable” now. Id.

at 870 (plurality op.).

Viability has no biological significance. It is, as

even pro-choice scholars have noted, “wholly

dependent on geography and resources.” Romanis,

supra, 25. Viability is “an odd rule,” because it

measures “developments in obstetrics, not …

developments in the unborn.” Isaacson, 716 F.3d at

1233 (Kleinfeld, J., concurring); MKB, 795 F.3d at 774

(Shepherd, J.). The Casey plurality embraced the

“imprecision” of its rule, explaining that the

“soundness … of [the viability rule] in no sense turns

on when viability occurs … [because] [w]henever it

may occur, its attainment will continue to serve as the

critical fact.” Casey, 505 U.S. at 836 (plurality op.)

(emphasis added). Depending on the status of medical

technology, therefore, viability could occur at any

point. Thus, viability amounts to “the magical second

when machines currently in use (though not

necessarily available to the particular woman) are

able to keep an unborn child alive apart from its

mother.” Id. at 989 n.5 (Scalia, J., concurring in the

judgment in part, dissenting in part). No other

constitutional right is so wholly dependent on the

state of the nation’s technology.

30

Viability is not a simple, workable “line” but a

complex prediction based on statistical probabilities of

contested significance. In its opinion, the Casey

plurality offered a “viability line” that was

purportedly “more workable” than any alternative. Id.

at 870 (plurality op.). But the very concept of a

viability “line” is a misnomer because “viability is not

really a defined line at all.” Linton & Quinlan, supra,

296. “Rather, it is a prediction— an educated guess—

about the statistical probability that a baby (given

certain characteristics) has of surviving if born

prematurely.” Id. This is a “complex estimation made

on the basis of assessing multiple factors,” and it is

“usually … done in the context of managing a

pregnancy at risk of premature birth or in the context

of determining the type and amount of care to be

provided to a baby that has already been born

prematurely.” Id. But even “if a uniform and accurate

source were available to establish [fetal] survival

rates at various ages,” there is “no consensus within

the medical community” about what probability

constitutes “viability.” Id. at 300-01. Indeed, some

doctors “may deem a baby to be viable when there is

... a 10 percent chance of survival, while others may

not do so unless there is a 25 percent (or even a much

greater) chance of survival.” Id. at 301. Ultimately,

“[t]he viability standard will prove even less workable

in the future.” MKB, 795 F.3d at 775 (Shepherd, J.).

Accordingly, viability is not a line but “an illusion.”

Linton & Quinlan, supra, 297.

This viability prediction is unworkable, too, since

it is based on irrelevant factors. In addition to the

status of medical technology, whether any particular

31

child is viable depends on her mother’s physical and

financial access to that medical technology. For

example, a woman who is 25 weeks pregnant and

traveling between Melbourne, Australia and Papa

New Guinea would move back and forth between “the

‘point’ of viability several times, becoming viable

whenever she was near sophisticated medical

facilities, and not viable whenever she returned to the

remote Papua New Guinea highlands.” Beck,

Gonzales, at 259 (quoting Stephen Coleman, The

Ethics of Artificial Uteruses: Implications for

Reproduction and Abortion 87 (2004)).

The viability line therefore tends to afford greater

protection to unborn children of the wealthy. See

Beck, Gonzales at 259. Those unborn children whose

parents are either closer to advanced medical

technology or can afford to travel to receive highquality medical care would be protected from abortion

sooner than those children from poorer families. If,

however, viability is based on the best technology

currently in use, but unavailable to any particular

woman, then “the [viability] rule is unprincipled for a

different

reason[,]”

namely

“caus[ing]

the

constitutional status of some fetuses to turn on

unattainable hypothetical conditions, rather than

real-world prospects for survival.” Id. Neither is a

workable line.

Finally, viability varies based on the competence

and optimism of the doctor responsible for the

evaluation. An incompetent doctor may place viability

too late (or early). An overly pessimistic or otherwise

ideological doctor may set the threshold too high. The

32

average patient hardly has the ability to question

these determinations. Moreover, this deference to

“disputable medical judgments becomes particularly

problematic when the doctor has financial, legal, or

ideological interests at stake in the determination.”

Id. at 260. These factors cannot be “the sole criterion

for deciding whether [a] child will live or die.” Box, 139

S. Ct. at 1783 (Thomas, J., concurring).

In short, the viability rule is and always has been

arbitrary and unworkable. The Court should no longer

retain it.

CONCLUSION

For these reasons, the Court should reverse the

decision below.

Respectfully submitted,

TRAVIS WEBER

KATHERINE BECK JOHNSON

FAMILY RESEARCH COUNCIL

801 G Street, N.W.

Washington, D.C. 20001

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

July 29, 2021

Counsel for Amicus Curiae