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, STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS

JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR MONIQUE CHIREAU WUBBENHORST,

M.D., M.P.H., GRAZIE POZO CHRISTIE, M.D.,

COLLEEN MALLOY, M.D., AND THE CATHOLIC

ASSOCIATION FOUNDATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

HEATHER GEBELIN HACKER

Counsel of Record

HACKER STEPHENS LLP

108 Wild Basin Rd., Suite 250

Austin, Texas 78746

heather@hackerstephens.com

(512) 399-3022

TA BLE O F C O NTE N TS

Page

Table of authorities ....................................................... III

Interest of amici curiae ................................................... 1

Summary of argument..................................................... 3

Argument.......................................................................... 5

I. Roe and Casey’s Viability Standard Is

Incomplete and Outdated According to Current

Science. .................................................................. 5

A. “Viability” no longer means what it did at

the time of Roe and Casey.............................. 5

B. Ultrasound technology has dramatically

improved and provides a clear window into

the womb to witness the humanity of the

unborn child. ................................................... 8

C. Improved imaging has provided greater

information about fetal development. ......... 14

D. Advancements in technology have led to

recognition of the fetus as a patient by

mainstream medicine. .................................. 18

E. Current science shows that the fetus is paincapable much earlier than previously

thought. ......................................................... 22

II. Casey Is Unworkable and Should Be

Overruled. ........................................................... 26

A. Casey does not allow for restrictions based

on increased knowledge of how the brutal

abortion procedure affects the unborn

child................................................................ 27

(I)

B. Casey is inconsistent with the Court’s

recognition of other State interests that

justify abortion restrictions. ........................ 30

C. Casey’s standard is arbitrary and has had

damaging effects. .......................................... 32

Conclusion ...................................................................... 36

III

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Baze v. Rees,

553 U.S. 35, 49 (2008) ............................................... 26

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

139 S. Ct. 1780 (2019)............................................... 30

City of Akron v. Akron Ctr. for Reprod. Health,

Inc.,

462 U.S. 416 (1983)................................................... 27

EMW Women’s Surg. Ctr., P.S.C. v.

Friedlander,

960 F.3d 785 (6th Cir. 2020) .................................... 31

Gonzales v. Carhart,

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

Harris v. W. Alabama Women’s Ctr.,

139 S. Ct. 2606 (2019)......................................... 30, 31

Jackson Women’s Health Org. v. Dobbs,

945 F.3d 265 (5th Cir. 2019) ................................ 3, 33

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

Emps., Council 31,

138 S. Ct. 2448 (2018)......................................... 21, 26

June Med. Servs. LLC v. Russo,

140 S. Ct. 2103 (2020)......................................... 33, 34

McCorvey v. Hill,

385 F.3d 846 (5th Cir. 2004) .............................. 22, 33

MKB Mgmt. Corp. v. Stenehjem,

795 F.3d 768 (8th Cir. 2015) .................................... 33

Page(s)

Cases—Con’t:

Planned Parenthood of Greater Tex. Fam.

Plan. & Preventative Health Servs., Inc v.

Smith,

913 F.3d 551 (5th Cir. 2019) .................................... 28

Planned Parenthood of Se. Pa. v. Casey,

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

Roe v. Wade,

410 U.S. 113 (1973)....................................... 4, 5, 7, 30

Roper v. Simmons,

543 U.S. 551 (2005)................................................... 22

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021)................................................... 4

Stenberg v. Carhart,

530 U.S. 914 (2000)............................................. 27, 33

Thornburgh v. Am. Coll. Obst. & Gyns.,

476 U.S. 747 (1986)................................................... 31

W. Alabama Women’s Ctr. v. Williamson,

900 F.3d 1310 (11th Cir. 2018) ................................ 31

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989)............................................. 31, 34

Whole Woman’s Health v. Paxton,

978 F.3d 896 (5th Cir. 2020) ............. 14, 28, 29, 30, 31

Statutes:

Partial Birth Abortion Ban Act of 2003, Pub. L.

No. 108-105, § 2(14)(M), 117 Stat. 1201 (2003) ....... 32

Page(s)

Other Authorities:

A. Kurjak & A. Luetic, Fetal neurobehavior

assessed by three-dimensional/fourdimensional sonography, Zdravniski

Vestnik., Vol. 79, 790-99 (Nov. 2010) ................ 11, 12

A. Pawlowski, 'Miracle baby': Born at 21 Weeks,

She May Be the Most Premature Surviving

Infant (Nov. 2017),

https://www.today.com/health/born-21-weeksshe-may-be-most-premature-surviving-babyt118610 ........................................................................ 6

Am. Coll. Obstet. & Gyns., Obstetric Care

Consensus: Periviable Birth (2019),

https://www.acog.org/clinical/clinicalguidance/obstetric-careconsensus/articles/2017/10/periviable-birth ........... 26

Am. Coll. Obstet. & Gyns., Facts are Important:

Fetal Pain,

https://www.acog.org/advocacy/facts-areimportant/fetal-pain........................................... 24, 34

Americans’ Opinions on Abortion: Knights of

Columbus/Marist Poll Nat’l Survey 7 (Jan.

2021),

https://www.kofc.org/en/resources/newsroom/polls/kofc-national-survey-withtables012021.pdf....................................................... 35

Bryan A. Garner, et al., The Law of Judicial

Precedent (2016)................................................... 5, 35

Page(s)

Other Authorities—Con’t:

C. Malloy, M. Chireau Wubbenhorst, T. Sander

Lee, The Perinatal Revolution, Issues in L. &

Med. 26 Vol. 34 no. 1, 15-41 (Spring 2019) .... passim

Cari Romm, FDA Warning: Stay Away From

‘Keepsake’ Ultrasounds, The Atlantic, Dec.

14, 2014,

https://www.theatlantic.com/health/archive/20

14/12/fda-warning-stay-away-from-keepsakeultrasounds/383816/ ................................................... 9

Carlo V. Bellieni, Analgesia for fetal pain

during prenatal surgery: 10 years of progress,

Pediatric Res. 1612-18 (Sept. 24, 2020) .......... passim

D. Stulberg, et al., Abortion provision among

practicing obstetrician-gynecologists, Obstet.

Gyn., Vol. 118 no. 3, 609–14 (Sept. 2011) ................ 34

Elyse Samuels, How do parents find out the sex

of their baby today? Exploring the trend of

gender-reveal parties, Wash. Post, May 13,

2018,

https://www.washingtonpost.com/news/parent

ing/wp/2018/05/13/how-do-parents-find-outthe-sex-of-their-baby-today-exploring-thenew-trend-of-gender-reveal-parties/ ........................ 9

F. Chervenak & L. McCullough, Should Sex

Identification Be Offered As Part of the

Routine Ultrasound Examination?, 8 J.

Ultrasound Obstet. Gyn. 293–94 (1996) ................. 11

VII

Page(s)

Other Authorities—Con’t:

F. Gary Cunningham, et al., eds. Williams

Obstetrics 181–343 (25th ed. 2018).......................... 18

Fox Television, Extreme Preemie, ‘About the

Size of a Hand,’ Goes Home in Georgia (July

2020),

https://fox6now.com/2020/07/01/extremepreemie-comes-home-for-first-time/ ........................ 6

GE Healthcare, GE Healthcare Voluson HDlive

Ultrasound Imaging Short Movie (Dec. 5,

2011), https://www.youtube.

com/watch?v=BD7quHKgEuk............................... 13

GE Healthcare, Introducing Versana Active

with an Advanced Cart (Jul. 8, 2020),

https://youtu.be/noMXN-iJjhw ................................. 9

GE Healthcare, Vscan Air, https://handheldultrasound.gehealthcare.com/. ..................................... 9

James C. Mohr, Abortion in America: The

Origins and Evolution of National Policy,

1800-1900 (1978) ......................................................... 8

K. Marsal, et al., One-Year Survival of

Extremely Preterm Infants After Active

Perinatal Care in Sweden, J. of Am. Med.

Assn. Vol. 301 no. 21, 2225–33, (June 3, 2009) ......... 6

Keith L. Moore, et al., The Developing Human:

Clinically Oriented Embryology 85 (11th ed.

2020) .............................................................. 14, 16, 17

VIII

Page(s)

Other Authorities—Con’t:

L. Harris, Second Trimester Abortion

Provision: Breaking the Silence and

Changing the Discourse, Repro. Health

Matters, Vol. 16 no. supp. 31, 74–81

(2008)............................................................. 28, 30, 34

M. Allen, et al., The Limit of Viability—

Neonatal Outcome of Infants Born at 22 to 25

Weeks’ Gestation, N. E. J. Med. Vol. 329 no.

22, 1597–1601 (Nov. 25, 1993) ................................... 6

M. Cullen, et al., A Comparison of Transvaginal

and Abdominal Ultrasound in Visualizing

the First Trimester Conceptus J. Ultrasound

Med. Vol. 8, 565–69 (1989) ....................................... 10

M. Sato, et al., 4D ultrasound study of fetal

facial expressions at 20–24 weeks of gestation,

Int’l J. Gyn. Obstet. Vol. 126 no. 3, 275–79,

(Sept. 2014) ............................................................... 13

Mark A. Curran, Fetal Development, (Mar.

2019),

https://perinatology.com/Reference/Fetal%20

development.htm#15................................... 14, 16, 17

Mayo Clinic, In vitro fertilization,

https://www.mayoclinic.org/testsprocedures/in-vitro-fertilization/about/pac20384716 ..................................................................... 7

Page(s)

Other Authorities—Con’t:

Miriam Falco, Study: Major benefits for spina

bifida surgery in the womb, CNN, Feb. 10,

2011,

http://edition.cnn.com/2011/HEALTH/02/09/s

urgery.spina.bifada/index.html................... 21Philips

Healthcare, Advanced screening views of the

fetal heart - Part 1 - 4-chamber color and PW

Doppler, (Sept. 13, 2016), https://www.

youtube.com/watch?v=UaC0S7W2OWM .............. 16

Royal Coll. of Obstet. and Gyns., Fetal

awareness review of research and

recommendations for practice: report of a

working party (Mar. 2010) ...................................... 24

S. Campbell, A Short History of Sonography in

Obstetrics and Gynaecology, Facts, Views, &

Visions: Issues in Obst., Gyn., & Repro.

Health, Vol. 5 no. 3, 213–29, (2013) .......... 8, 10, 11, 13

S. Derbyshire & J. Bockmann, Reconsidering

fetal pain, J. Med. Ethics, Vol. 46, no. 1, 3–6

(2020)................................................................. passim

Shawn Shinneman, The Surgeon Who Works On

Babies Before They’re Born, Dallas Mag., Oct.

2018 ........................................................................... 20

Testimony of Dr. Anthony Levatino, C-SPAN,

“Planned Parenthood Medical Procedures,”

https://www.youtube.com/watch?v=j0tQZhEi

saE ............................................................................ 28

Page(s)

Other Authorities—Con’t:

Ultrasound Ireland, 15 Weeks Pregnant - Your

15th Week Of Pregnancy 0:03-1:31, (July 17,

2015), https://www.youtube.com/

watch?v=mDjwNOeM3jE ...................................... 16

Ultrasound Ireland, Scan of the Week: 15 Weeks

Pregnant (The Advanced Early Ultrasound),

(July 17, 2020),

https://www.youtube.com/watch?v=PbIEmTq

8UyQ ......................................................................... 17

Ultrasoundlink, What is 4D ultrasound scan?,

https://www.youtube.com/watch?v=OBV7i9zR

Ato ................................................................. 11, 13, 16

V. Glover & N. Fisk, Fetal pain: implications

for research and practice, Brit. J. Obstet.

Gyn. Vol. 106, 881–86 (Sept. 1999) ................... 24, 26

W. Hern & B. Corrigan, What About Us? Staff

Reactions to D&E, Adv. In Planned

Parenthood Vol. 15 no. 1, 3–8 (Jan. 1980) .............. 28

William O. Douglas, Stare Decisis, 49 Colum. L.

Rev. 735, 736 (1949) ................................................. 35

INTE RE ST O F A MIC I C U RI AE

Amici curiae are Monique Chireau Wubbenhorst,

M.D., M.P.H., Grazie Pozo Christie, M.D., Colleen Malloy, M.D., and The Catholic Association Foundation. 1

Dr. Monique Chireau Wubbenhorst is a board-certified obstetrician-gynecologist. Dr. Wubbenhorst graduated from Mount Holyoke College and attended medical

school at Brown University. She received a master’s in

public health from Harvard University. She completed

her residency in obstetrics and gynecology at Yale-New

Haven Hospital and her postdoctoral fellowship in health

services research at the Sheps Center for Health Services Research at the University of North CarolinaChapel Hill. She was on the faculty at Duke University

School of Medicine from 2003-2018. She is a fellow of the

American College of Obstetricians and Gynecologists

(ACOG). Dr. Wubbenhorst recently served as the Senior

Deputy Assistant Administrator in the Bureau of Global

Health at the U.S. Agency for International Development (USAID). Dr. Wubbenhorst’s clinical career has focused on caring for women in disadvantaged populations,

especially the African-American community.

Dr. Grazie Pozo Christie is a practicing physician

specializing in diagnostic radiology. Dr. Christie graduated from Columbia University and received her medical

degree from the University of Miami Miller School of

Medicine. She completed her residency in diagnostic radiology and a fellowship in orthopedic radiology at Jackson Memorial Hospital in Miami. She is a diplomate of

the American Board of Radiology. For over two decades

Petitioner and Respondent provided blanket consent for the

filing of amicus briefs. Rule 37.3(a). No counsel for any party authored this brief, in whole or in part. No person or entity other than

amici contributed monetarily to its preparation or submission.

she has been in private practice as a general radiologist

in Miami, working mainly in underserved communities.

Using a variety of modalities, including ultrasound, magnetic resonance imaging and computed tomography, she

works closely with referring physicians to diagnose disease in her patients. As part of her daily practice, Dr.

Christie interprets ultrasounds of pregnant women and

their developing babies.

Dr. Colleen Malloy is board-certified in both neonatal-perinatal medicine and pediatrics. She is an Assistant

Professor of Pediatrics (Neonatology) at Northwestern

University Feinberg School of Medicine in Chicago. Dr.

Malloy graduated from the University of Notre Dame

and received her medical degree from Northwestern

University Feinberg School of Medicine. She completed

her residency in pediatrics and her fellowship in neonatology at Loyola University Medical Center in Chicago.

She maintains a clinical practice at Northwestern Memorial Hospital and the Ann & Robert H. Lurie Children’s

Hospital of Chicago. In her clinical practice, Dr. Malloy

helps to manage high-risk pregnancies and cares for babies born prematurely as well as term babies with health

issues.

As they care for both women and their unborn children as their patients, amici physicians have seen

firsthand in their clinical practices how science has advanced dramatically since Roe v. Wade and Planned

Parenthood of Southeastern Pennsylvania v. Casey

were decided. These advancements not only affect when

a fetus is viable, but also create new concerns that States

should be able to consider when restricting abortion.

The Catholic Association Foundation (TCA) is a lay

organization dedicated to being a faithful voice for Catholics in the public square. TCA has previously filed

amicus curiae briefs in this Court. TCA responds to the

call of the Catholic Church for members of the lay faithful to apply Catholic teaching, wisdom, and principles to

the issues of the day. TCA strives toward achieving a society in which the common good and the dignity of every

human person—born or unborn—is upheld.

SU M MA RY O F A RGU ME NT

48 years after Roe v. Wade, innumerable advances in

science and medicine now inform our understanding of

pregnancy, fetal development, and viability in ways unimaginable in 1973. Mississippi prohibited abortions after 15 weeks’ gestation because of that evidence. See Pet.

App. 65a-70a, 75a-100a. But the lower court, relying on

Planned Parenthood of Southeastern Pennsylvania v.

Casey, held that “[n]o state interest is constitutionally

adequate to ban abortions before viability, so the interests advanced here are legally irrelevant to the sole issue

necessary to decide the Clinic’s constitutional challenge.” Jackson Women’s Health Org. v. Dobbs, 945 F.3d

265, 275 (5th Cir. 2019). Under Casey, Mississippi is compelled to permit doctors to kill living, pain-capable human fetuses—as science now shows—in a way that even

an animal could not be legally killed.

As a practicing obstetrician-gynecologist, radiologist, and neonatologist, amici physicians have had frontrow seats in witnessing the comprehensive scientific innovations over the last few decades. Advancing science

has painted an intimate portrait of the fetus and its humanity. Science has told us volumes about the unborn

child’s development and its capacity to feel pain, and

mainstream medicine treats the unborn child as a patient. Yet amici physicians are also witness to the fruits

of abortion jurisprudence that is out-of-sync with the latest medical science. As they care for their unborn patients, they are confronted with the evidence of their undeniable humanity—evidence that Casey deems legally

irrelevant. It is their professional view that in Roe’s own

terms, we have arrived at a quite different “point in the

development of man’s knowledge” about life in utero.

Roe v. Wade, 410 U.S. 113, 159 (1973), holding modified

by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833

(1992) (plurality op.). The Court’s jurisprudence should

reflect—or, at least, leave room for—this new understanding. As it stands now, it does not.

If the Court’s abortion jurisprudence purports to rely

on science, it should at least rely on modern science. But

Casey effectively declared all scientific developments irrelevant and the viability line absolute, even though Casey itself relied on evolving science in declaring Roe’s trimester framework rigid and unworkable. If there is no

flexibility for States to consider scientific advancements

in limiting abortion, Casey requires “science-based policy yield to judicial edict.” S. Bay United Pentecostal

Church v. Newsom, 141 S. Ct. 716, 723 (2021) (Kagan, J.,

dissenting). Roe and Casey’s viability framework is outdated and unworkable. It must be overruled.

ARGU ME N T

I. Roe and Casey’s Viability Standard Is Incomplete

and Outdated According to Current Science.

This Court reconsiders constitutional precedent

“when it is convinced that its earlier decision rested on a

dated or incorrect view of the facts or law.” 2 Current science makes clear that Roe and Casey’s viability standard

is out-of-date. Since those cases were decided, scientific

advancements have allowed both physicians and the public to learn more about the unborn child and its development, including its capacity to feel pain. Technology has

allowed the fetus to be viable outside the mother’s womb

significantly earlier, and has allowed physicians to provide medical treatment, even surgery, to the fetus in

utero. Mainstream medicine considers the unborn child

a patient. These developments have revealed the human

form of the fetus and undermine viability as the sole factor States may consider in limiting abortion. Roe and Casey’s fundamental premise is therefore outmoded and

must be reconsidered because of current science.

A. “Viability” no longer means what it did at the

time of Roe and Casey.

This Court’s definition of viability is the point at

which the fetus is “potentially able to live outside the

mother’s womb, albeit with artificial aid.” Roe, 410 U.S.

at 160. In 1973, viability meant 28 weeks’ gestation (the

cusp of the third trimester), but by 1992, it was 23 or 24

weeks, well into the second trimester. Casey, 505 U.S. at

860. Those babies—previously at the very edge of possible survival—now survive at much higher rates.

Bryan A. Garner, et al., The Law of Judicial Precedent 367

(2016).

In 1993, the New England Journal of Medicine reported the survival rate at 22 weeks to be zero. 3 In 2009,

the Journal of the American Medical Association reported the survival rate at 22 weeks’ gestation was 9.8%. 4

In 2015, the New England Journal of Medicine reported

the survival rate as 22.1%. 5 In 2016, Pediatrics reported

a 31% survival rate. 6 And a 2017 Canadian study showed

the survival rate at 22 weeks was 64.4%. 7 The NICU now

commonly cares for infants born at these gestational

ages. Babies born at only 21 weeks have now survived. 8

And a recent study suggested that artificial womb technology is feasible. 9 The supposed viability line has now

M. Allen, et al., The Limit of Viability—Neonatal Outcome of

Infants Born at 22 to 25 Weeks’ Gestation, N. E. J. Med. Vol. 329

no. 22, 1597–1601 (Nov. 25, 1993), https://www.nejm.org/doi/pdf/

10.1056/NEJM199311253292201?articleTools=true.

K. Marsal, et al., One-Year Survival of Extremely Preterm Infants After Active Perinatal Care in Sweden, J. of Am. Med. Assn.

Vol. 301 no. 21, 2225–33, (June 3, 2009), https://jamanetwork.com

/journals/jama/fullarticle/184015.

C. Malloy, M. Chireau Wubbenhorst, T. Sander Lee, The Perinatal Revolution, Issues in L. & Med. 26 Vol. 34 no. 1, 15-41, 26

(Spring

2019),

https://heinonline.org/HOL/LandingPage?handle=hein.journals/ilmed34&div=6&id=&page= (footnote omitted).

Id. (footnote omitted).

Fox Television, Extreme Preemie, ‘About the Size of a Hand,’

Goes Home in Georgia (July 2020), https://fox6now.com/2020/

07/01/extreme-preemie-comes-home-for-first-time/; A. Pawlowski,

'Miracle baby': Born at 21 Weeks, She May Be the Most Premature

Surviving Infant (Nov. 2017), https://www.today.com/health/born21-weeks-she-may-be-most-premature-surviving-baby-t118610.

See Malloy, supra, at 33 (footnote omitted).

moved at least a month and a half earlier than was contemplated in Roe. 10

According to Casey, Roe’s “central holding” is “that

viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a

legislative ban on nontherapeutic abortions.” 505 U.S. at

860. Because the plurality assumed that any movement

in that line would be trivial, Casey was willing to accept

the “imprecision” of the viability line as “within tolerable

limits” because “there is no line other than viability

which is more workable.” Id. at 870. But as discussed

above, the movements in the viability line, as defined by

Roe, are significant.

Further, Casey accepted that “there may be some

medical developments that affect the precise point of viability,” but did not allow for “medical developments”

that affect other aspects of the abortion issue. Id. (emphasis added). These developments, discussed below, are

just as relevant to the “balance” Casey struck between

the woman’s liberty interest and the State’s interest in

“the life of the fetus that may become a child,” id. at 846,

861. They show that the fetus is not merely a clump of

tissue that “may become” a child—it is an “unborn child,

a child assuming the human form.” Gonzales v. Carhart,

550 U.S. 124, 160 (2007). The human form of the child,

regardless of its viability, is unaccounted for by Casey.

Roe’s definition of viability no longer only describes a premature infant’s survival. Even human zygotes can now survive “outside

the mother’s womb” with “artificial aid,” Roe, 410 U.S. at 160. See,

e.g., Mayo Clinic, In vitro fertilization, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384

716.

B. Ultrasound technology has dramatically

improved and provides a clear window into the

womb to witness the humanity of the unborn

child.

Even without ultrasound technology, doctors have

long known that the baby was alive in the womb. In 1859,

the American Medical Association unanimously approved a report deeming abortion the “unwarrantable

destruction of human life.” 11 But the development of fetal

ultrasound revolutionized our understanding of the fetus. Technological advances since Roe and Casey have allowed for widespread use and better-quality images, giving the public a growing appreciation of the fetus in

utero.

1. Since Roe, ultrasound went from being infrequent, expensive, and cumbersome, to becoming part of

the standard of care. Fetal ultrasound was pioneered in

1958. 12 For the first time, physicians could visually observe a living fetus. 13 But the first images were rudimentary, and the first machines enormous and expensive,

making ultrasound largely inaccessible. 14 As technology

advanced, smaller, less expensive ultrasound machines

were developed, resulting in greater access and more

routine use. 15 Once fetal ultrasound became

James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 157 (1978).

See S. Campbell, A Short History of Sonography in Obstetrics

and Gynaecology, Facts, Views, & Visions: Issues in Obst., Gyn., &

Repro. Health, Vol. 5 no. 3, 213–29, (2013), https://www.ncbi.nlm.

nih.gov/pmc/articles/PMC3987368/.

Id.

Ultrasound machines are now as small as laptop computers;

others are simply handheld transducers that transmit images to a

democratized, the public began to appreciate the undeniable humanity of the unborn child. One sure sign of this

new cultural understanding: the ultrasound images

posted on refrigerators and social media by expectant

parents (and grandparents) across America. These

black-and-white, baby-on-the-way images have informed

the minds and hearts of lay people who have become increasingly aware that what is at issue in this legal debate

are members of the human family, even when small and

hidden in the haven of the womb.

Over the last decade, ultrasound has been widely

used not only for medical purposes, but also for bonding

with the unborn child. Ultrasound facilities are common

in shopping malls, providing families with keepsake images. 16 The reliability of ultrasound to determine the

baby’s sex has also made “gender reveals” popular, and

many families prepare gender-specific nurseries and layettes well in advance of the baby’s arrival. 17

smartphone. See, e.g., GE Healthcare, Introducing Versana Active

with an Advanced Cart (July 8, 2020), https://youtu.be/noMXNiJjhw; GE Healthcare, Vscan Air, https://handheldultrasound.gehealthcare.com/.

See, e.g., Cari Romm, FDA Warning: Stay Away From ‘Keepsake’ Ultrasounds, The Atlantic, Dec. 14, 2014, https://www.theatlantic.com/health/archive/2014/12/fda-warning-stay-away-fromkeepsake-ultrasounds/383816/.

See Elyse Samuels, How do parents find out the sex of their

baby today? Exploring the trend of gender-reveal parties, Wash.

Post, May 13, 2018, https://www.washingtonpost.com/news/parenting/wp/2018/05/13/how-do-parents-find-out-the-sex-of-their-babytoday-exploring-the-new-trend-of-gender-reveal-parties/.

2. The quality of ultrasound images has improved

dramatically since Roe and Casey. Sonograms in the

1970s were rudimentary: 18

Sonograms in the late 1980s 19 were still blurry and indefinite, as the below image illustrates. A sonographer’s

guess as to the baby’s sex in those days was unreliable.

Transvaginal ultrasound, a technological leap that occurred in the early 1990s, allowed for greater visibility of

Campbell, supra, at Fig. 7.

See M. Cullen, et al., A Comparison of Transvaginal and Abdominal Ultrasound in Visualizing the First Trimester Conceptus

Ultrasound

Med.

Vol.

565–69,

568

(1989),

https://perma.cc/778Q-BFCC.

the fetus in early pregnancy. 20 This technique provided

evidence destroying the argument that the fetus in early

pregnancy was merely a “clump of cells.” In 1996, four

years after Casey, ultrasound technology clear enough to

reliably determine the fetus’s sex was so new that physicians still debated whether they should routinely tell parents this information. 21 Now, ultrasound technology allows for 3D and 4D real-time imaging. 22 The below 3D image of a first trimester fetus demonstrates the dramatic

increase in imaging capability as compared to what was

available around the time of Casey. 23

See Campbell, supra.

See F. Chervenak & L. McCullough, Should Sex Identification Be Offered As Part of the Routine Ultrasound Examination?,

8 J. Ultrasound Obstet. Gyn. 293–94 (1996), http://onlinelibrary.wiley.com/doi/10.1046/j.1469-0705.1996.08050293.x/epdf.

See, e.g., Ultrasoundlink, What is 4D ultrasound scan?,

https://www.youtube.com/watch?v=OBV7i9zRAto (demonstrating

differences in current 2D, 3D, and 4D technology).

A. Kurjak & A. Luetic, Fetal neurobehavior assessed by threedimensional/four-dimensional sonography, Zdravniski Vestnik.,

Vol. 79, 790-99, 794 (Nov. 2010), https://www.researchgate.net/publication/287702538_Fetal_neurobehavior_assessed_by_three-dimensionalfour-dimensional_sonography.

Using a 3D ultrasound, clinicians can see a ten-week fetus

moving its arms, and in the eleventh week, moving its tiny

fingers. 24 The incredible detail in these images even allows

one to see if the unborn child has her mother’s nose or her

father’s chin, even in the second trimester, as below: 25

Id. at 795.

Id. at 796.

3D and 4D images, surface rendered, reveal the human

face of the fetus: plump cheeks, delicately formed lips,

and tiny noses: 26

In 4D renderings, we can observe movement. The baby

can be seen yawning, sucking her thumb, and kicking. 27

4D technology also shows fleeting expressions: the grimace of a cry, a frown wrinkling the forehead, a curve of

the lips into a smile. 28 The baby’s mouth opens, and we

can even see the tongue moving. 29 These detailed images

Campbell, supra, at Fig. 15.

See GE Healthcare, GE Healthcare Voluson HDlive Ultrasound Imaging Short Movie (Dec. 5, 2011), https://www.youtube.

com/watch?v=BD7quHKgEuk.

See, e.g., M. Sato, et al., 4D ultrasound study of fetal facial

expressions at 20–24 weeks of gestation, Int’l J. Gyn. Obstet. Vol.

126 no. 3, 275–79, (Sept. 2014); https://obgyn.onlinelibrary.wiley.com/doi/abs/10.1016/j.ijgo.2014.03.036.

Ultrasoundlink, supra, at 1:24-1:29.

have opened a window into the womb, allowing us to witness the human form of the child.

C. Improved imaging has provided greater

information about fetal development.

Increasing availability of ultrasound and sophisticated imaging of the fetus has provided now-vivid particulars of fetal development.

At 15 weeks’ gestation—only three weeks into the

second trimester, and over a month before the middle of

pregnancy—the child is already well past the embryonic

stage of development and into the fetal stage, which extends from 11 to 39 weeks. 30 At 15 weeks’ gestation, the

fetus is small, but looks unmistakably human, despite not

yet being “viable” according to Casey. At 15 weeks, the

child’s average length is 4-6 inches from the crown of the

head to the rump, and 4.1 ounces in weight. 31 The reproduced image below is close to scale. 32

See Keith L. Moore, et al., The Developing Human: Clinically

Oriented Embryology 85 (11th ed. 2020).

See Mark A. Curran, Fetal Development, (Mar. 2019),

https://perinatology.com/Reference/Fetal%20development.htm#15; see also Moore, supra, at 86.

This image depicting a 15-week fetus is part of an exhibit admitted into evidence based on expert testimony in Whole Woman's

Health v. Paxton, 978 F.3d 896 (5th Cir. 2020), reh’g en banc

granted, opinion vacated, 978 F.3d 974 (5th Cir. 2020), and can be

found at page 4268 of the record on appeal.

At 15 weeks’ gestation, all major organs are formed

and functioning, including the liver, kidneys, pancreas,

and brain. 33 Although the child receives nutrients and oxygen through the umbilical cord, the digestive, urinary,

and respiratory systems are practicing for extra-uterine

life. At 15 weeks, the fetus swallows and urinates; she

even “breathes,” filling her lungs with amniotic fluid and

expelling it. 34 The cardiovascular system is fully formed.

Not only is the baby’s heartbeat detectable, as it has

been for nine weeks, but the four chambers of the fetal

heart are visible. 35 So is the blood “whooshing” between

the chambers on color doppler ultrasound. 36 At 15 weeks,

the baby’s head, starting with the brain, is a marvel of

intricacy. The brain’s large frontal lobes, ventricles, and

thalamus fill most of the space. 37 The fetal profile is clear:

the gently sloping nose, the distinct upper and lower lips

and chin: 38

See Curran, supra, at 13 weeks.

Moore, supra, at 87; Curran, supra, at 11 weeks; see also, e.g.,

Ultrasound Ireland, 15 Weeks Pregnant - Your 15th Week Of Pregnancy (July 17, 2015), 0:03-1:29, https://www.youtube.com/

watch?v=mDjwNOeM3jE.

See Curran, supra, at 6 weeks; Philips Healthcare, Advanced

screening views of the fetal heart - Part 1 - 4-chamber color and PW

Doppler, (Sept. 13, 2016), https://www.youtube.com/watch?v=

UaC0S7W2OWM.

See Philips Healthcare, supra.

Ultrasoundlink, supra, at 0:24.

See Ultrasound Ireland, supra.

The external genitalia are visible, allowing sonographers

to inform families whether their baby is a son or daughter. 39

Although many women cannot yet feel movements, 40

a baby at 15 weeks’ gestation is very active. Unless the

baby is asleep, kicking and arm-waving are commonly

seen during ultrasound evaluations. 41 The fetal spine is

often gently curved as the fetus rests against the

mother’s uterine wall. But then the baby plants her feet

against the wall in front of her and stretches vigorously. 42

This is the living reality of what is at issue in this case:

a tiny boy or girl who, at 15 weeks, kicks, breathes, and

hiccups, who has little fingers that open and close—and

who has undeniably “assum[ed] the human form.” Gonazles, 550 U.S. at 160.

Moore, supra, at 88; Curran, supra, at week 14.

Moore, supra, at 86; Curran, supra, at week 15.

Moore, supra, at 88; see also, Ultrasound Ireland, Scan of the

Week: 15 Weeks Pregnant (The Advanced Early Ultrasound), (July

17, 2020), https://www.youtube.com/watch?v=PbIEmTq8UyQ (2D

ultrasound scan of 15-week baby).

See id.

D. Advancements in technology have led to

recognition of the fetus as a patient by

mainstream medicine.

Science has not only plainly revealed the human form

of the unborn child. It has led to the recognition of the

fetus as a patient in her own right. Obstetricians have

viewed the baby as a patient along with the mother. 43 But

until recently, there was a limit to what doctors could do

to confirm a problem with the fetus, and little that could

be done about it. Sophisticated imaging, genetics, and

the exploding field of fetal therapy have increased our

knowledge of fetal life. Mainstream medicine now recognizes the fetus as a patient, capable of being treated and

worthy of care. Clinicians also recognize that the fetus’

environment in the womb can impact the rest of her life. 44

When Roe was decided, perinatal medicine was a

brand-new field. 45 The development of diagnostic technology like ultrasound and MRI, which allowed physicians to safely visualize the living fetus in real time

throughout pregnancy, “shifted the focus from the newborn, with a severe disorder that could not be corrected

after birth, to the possibility of prenatal medical or surgical intervention that could help ameliorate the clinical

manifestations of disease … these diagnostic capabilities

led to further research … and the realization that the fetus was, and is, a patient.” 46

Cf. F. Gary Cunningham, et al., eds. Williams Obstetrics 181–

343 (25th ed. 2018) (section in seminal obstetrics textbook titled

“The Fetal Patient”).

Malloy, supra, at 15 (footnote omitted).

Id. at 16.

Id.

Improved diagnostic capability has allowed for many

conditions to be treated medically while the fetus is still

in utero. 47 One of the most common interventions is the

preventative treatment of neural-tube defects. Doctors

routinely advise women to take folic acid starting before

conception and throughout their pregnancy, as it reduces

neural-tube defects like spina bifida. 48 Magnesium sulfate has been examined extensively as a means to reduce

the risk of cerebral palsy. 49 Congenital adrenal hyperplasia can be diagnosed very early in pregnancy and

treated starting at 7-9 weeks’ gestation. 50 Other fetal

problems that can be medically prevented or treated are

HIV infection and thyroid disease. 51

Aside from diagnosis of the fetus, imaging has also

made it possible for interventional surgical procedures

to be performed in utero. Using ultrasound for guidance,

doctors can safely perform amniocentesis, biopsies, surgery and sampling. 52 As imaging technology advanced,

better visualization led to “drastically improved” screening for certain conditions and an explosion in possible

treatments. 53

Laparoscopic-type techniques, known as fetoscopy,

have “revolutionized” fetal procedures. 54 These procedures use endoscopes (small, fiber-optic guided instruments) within the uterus. Using ultrasound guidance, fetoscopy enables doctors to place shunts (to treat

See id. at 17–19.

Id. at 17.

Id. at 18.

Id.

Id. at 18–19.

Id. at 17.

See id. at 16–17.

Id. at 19.

problems like bladder obstruction), and correct blood

vessel abnormalities. 55 Life-saving interventions are now

available for fetuses diagnosed with congenital heart disease. Fetal hemolytic disease, often fatal if untreated,

may be treated in utero through fetal blood transfusions. 56

Advancing technology also allows doctors to perform

open fetal surgery as early as 15 weeks’ gestation. 57 Over

the last decade, fetal surgeries have “soared as never before.” 58 During these surgeries, physicians will open the

uterus and operate directly on the fetus, producing images like the one below, which reinforce the human form

of the child in the womb. 59

Id.

Shawn Shinneman, The Surgeon Who Works On Babies Before They’re Born, Dallas Mag., Oct. 2018, https://www.dmagazine.com/publications/d-magazine/2018/october/timothy-crombleholme-works-on-babies-before-theyre-born/.

Carlo V. Bellieni, Analgesia for fetal pain during prenatal

surgery: 10 years of progress, Pediatric Res. 1612-18, 1 & Fig. 1

(Sept. 24, 2020), https://www.nature.com/articles/s41390-020-011702.

Malloy, supra, at 21; see also Shinneman, supra.

The below image was taken during a surgery to repair

open spina bifida. 60

During open fetal surgery, surgeons can remove tumors and repair congenital diaphragmatic hernias. 61

Other conditions successfully treated in open fetal surgery include large lung tumors, severe kidney obstruction, low amniotic fluid, and twin-to-twin transfusion syndrome. 62

The rapidly developing field of fetal therapies and

surgery—completely undeveloped at the time of Roe and

still largely futuristic at the time of Casey—is significant

for purposes of evaluating whether the “underpinnings”

of those cases have been “eroded.” Janus v. Am. Fed’n

of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448,

2482 (2018) (citation omitted). These new technologies

have confirmed that in the view of mainstream medicine,

Miriam Falco, Study: Major benefits for spina bifida surgery

in the womb, CNN, Feb. 10, 2011, http://edition.cnn.com

/2011/HEALTH/02/09/surgery.spina.bifada/index.html (image of a

22-week fetus grasping the surgeon’s finger).

Malloy, supra, at 21–23.

Id. at 23–24.

“the fetus has truly become a patient.” 63 That only

changes if the same child is unwanted by its mother and

slated for abortion. 64 At minimum, the same ethical principles governing the medical treatment of the fetus

should govern elective abortion of the fetus. As the Court

acknowledged in the death penalty context, human dignity is not dependent on whether that human is slated to

die. See Roper v. Simmons, 543 U.S. 551, 560 (2005) (“By

protecting even those convicted of heinous crimes, the

Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”)

E. Current science shows that the fetus is paincapable much earlier than previously thought.

“[N]eonatal and medical science … now graphically

portrays, as science was unable to do [at the time of Roe],

how a baby develops sensitivity to external stimuli and

to pain much earlier than was then believed.” McCorvey

v. Hill, 385 F.3d 846, 852 (5th Cir. 2004) (Jones, J., concurring) (footnote omitted). With the development of fetal surgery, it was necessary for physicians to consider

fetal pain, and anesthesia to prevent it, to ensure treatment is done humanely. After reviewing scientific evidence from the last decade, researchers have now concluded that “the human fetus can feel pain when it undergoes surgical interventions and direct analgesia must

be provided to it.” 65 Advancing technology also provides

more information about how the fetus experiences the

brutal abortion procedure that ends its life. The

Id. at 36 (footnote omitted).

See id. at 33 (“The fetus is considered a ‘person’ when carried

by a woman who plans to continue the pregnancy, but the fetus is

not considered a person when the mother plans abortion.”)

Bellieni, supra, at 1.

possibility of fetal pain warrants the same consideration

given in the context of medical treatment as it does in the

context of abortion, yet Casey’s rigid framework makes

no allowance for it. 66

Generally, pain is perceived after receptors transmit

the pain message to the spinal cord, which carries the

message into the deeper parts of the brain—the thalamus and cortex—for processing. These structures are

developing in the baby well before “viability.” By 12

weeks’ gestation, sensory fibers have grown into the spinal cord and connected with the thalamus, which is the

“essential organ of the affective side of our sensation, especially pain,” and has “pivotal importance” for “fetal

pain.” 67 Also by 12 weeks, the first projections from the

thalamus connect with the cortical subplate. 68 The subplate is a transient developmental structure that forms

underneath the cortical plate proper. 69 Neurons first migrate into the subplate until the cortical plate above is

sufficiently mature; the neurons then migrate to the cortex. 70 The subplate gradually becomes white matter. 71

See S. Derbyshire & J. Bockmann, Reconsidering fetal pain,

J. Med. Ethics Vol. 46, no. 1, 3–6, 4 (2020), https://jme.bmj.com/content/46/1/3 (“[W]hile all the evidence suggests that surgeons performing therapeutic fetal interventions routinely consider pain relief for the fetus, surgeons performing abortions have their focus on

the pregnant woman as their patient. Consequently they more

rarely consider fetal pain relief during the preparation and execution of abortion. Whether or not the fetus feels pain, therefore, is

relevant to current medical practice surrounding abortion and could

motivate changes in practice.” (footnote omitted)).

Bellieni, supra, at 2.

Derbyshire, supra, at 4.

Id.

The fact that the fetus lacks a fully functional cortex

before 24 weeks’ gestation led some scientists to believe

that fetal pain perception was impossible before then, despite evidence showing that the fetus will respond to noxious stimuli much earlier. 72 In 2010, the Royal College of

Obstetricians and Gynaecologists (RCOG) issued a report making this conclusion, 73 and the American College

of Obstetricians and Gynecologists (ACOG) recently relied on it to make the same argument. 74

But researchers now criticize the RCOG report as illfounded: “We could rewrite this [report] as ‘in theory

they can’t feel pain, therefore they don’t.’” 75 And more

recent research “call[s] into question the necessity of the

cortex for pain and demonstrat[es] functional thalamic

connectivity into the subplate.” 76 Further, “even if the

cortex is deemed necessary for pain experience, there is

now good evidence that thalamic projections into the

subplate, which emerge around 12 weeks’ gestation, are

functional and equivalent to thalamocortical projections

that emerge around 24 weeks’ gestation.” 77 Researchers

now believe that “current neuroscientific evidence

See, e.g., V. Glover & N. Fisk, Fetal pain: implications for

research and practice, Brit. J. Obstet. Gyn. Vol. 106, 881–86, 882

(Sept. 1999), https://obgyn.onlinelibrary.wiley.com/doi/abs/10.1111

/j.1471-0528.1999.tb08424.x.

See Royal Coll. of Obstet. and Gyns., Fetal awareness review

of research and recommendations for practice: report of a working

party (Mar. 2010), https://www.rcog.org.uk/globalassets/documents/guidelines/rcogfetalawarenesswpr0610.pdf.

Am. Coll. of Obstet. & Gyns., Facts are Important: Fetal

Pain,

https://www.acog.org/advocacy/facts-are-important/fetalpain (undated but referencing the Trump Administration).

Bellieni, supra, at 5 (footnote omitted).

Id. at 3.

Id. at 4.

undermines the necessity of the cortex for pain experience. Thus, current neuroscientific evidence supports

the possibility of fetal pain before the ‘consensus’ cut-off

of 24 weeks.” 78

Review of the last decade’s research shows that science has also disproved other theories arguing that fetal

pain is impossible before 24 weeks. 79 In fact, “one of the

most prominent researchers” in the field of fetal pain,

“who had always excluded” its eventuality, “has changed

his conclusions, due to the new evidence.” 80 He now concludes that “[o]verall, the evidence, and a balanced reading of that evidence, points towards an immediate and

unreflective pain experience mediated by the developing

function of the nervous system from as early as 12

weeks.” 81

The relevance to abortion was not lost on the prominent researcher who reconsidered his views due to new

science. Even though he is pro-choice, he and his co-author (who is pro-life) noted that their personal views

“should not interfere with discussion of whether fetal

pain is possible and whether the science of fetal development can rule out the possibility of fetal pain.” 82

It is still unknown exactly how the fetus experiences

pain. But even if it does not experience pain like an adult

with a fully formed cortex, fetal pain is still worthy of

consideration. 83 In fact, evidence suggests that the

Id. at 4.

Id. at 1–7.

Id. at 1.

Derbyshire, supra, at 6 (emphasis added).

Id. at 3.

Id. at 4–6; see also, e.g., Baze v. Rees, 553 U.S. 35, 49 (2008)

(plurality op.) (“Our cases recognize that subjecting individuals to a

unborn child, like infants, may even experience pain

more severely than mature people. 84 Medicine already

recognizes this, and physicians avoid suffering in even

previable fetuses. Fetal anesthesia is the standard of

care for any fetal procedure. 85 And the standard of care

for babies born alive that are too young to be resuscitated still includes palliative care: pain medication,

warmth, and swaddling for comfort. 86 Yet when those

same babies are subjected to abortion, their suffering is

deemed irrelevant because they are destined to die. That

this Court’s precedent requires this perverse result is

more than sufficient to require its reversal.

II. Casey Is Unworkable and Should Be Overruled.

Aside from changes in fact or law, other factors the

Court considers in deciding to overrule precedent, see

Janus, 138 S. Ct. at 2478–79, favor overruling the viability standard because it has proven unworkable.

risk of future harm—not simply actually inflicting pain—can qualify

as cruel and unusual punishment.”)

Glover, supra, at 882 (“The last pathways in the nociceptive

system … do not form until after birth, raising the possibility that

the fetus may actually be more sensitive to noxious stimuli than the

older child, and may explain why the newborn shows exaggerated

behavioural responses to sensory provocation.”).

See Bellieni, supra, at 1 (“[T]he human fetus can feel pain

when it undergoes surgical interventions and direct analgesia must

be provided to it.”); Derbyshire, supra, at 4 (“Currently … we are

not aware of any procedures where invasive fetal intervention proceeds without anaesthesia or analgesia, except for abortion.”)

See, e.g., ACOG, Obstetric Care Consensus: Periviable Birth

(2019),

https://www.acog.org/clinical/clinical-guidance/obstetriccare-consensus/articles/2017/10/periviable-birth.

A. Casey does not allow for restrictions based on

increased knowledge of how the brutal

abortion procedure affects the unborn child.

Since Roe, medicine has developed new ways to treat

the fetus as a patient and is addressing the impact those

treatments have on the fetus with respect to pain. But

over the same period, abortion providers have employed

increasingly brutal abortion methods.

The dilation and evacuation (D&E) procedure currently used after 15 weeks’ gestation was not used for

second-trimester abortions at the time of Roe. City of

Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S.

416, 436 & n.23 (1983); see also Stenberg v. Carhart, 530

U.S. 914, 924 (2000). The Court described this brutal procedure before based on the testimony of late-term abortionist Dr. Leroy Carhart:

The Supreme Court described the D&E procedure in gruesome “technical detail” in Stenberg v.

Carhart, acknowledging that its description “may

seem clinically cold or callous to some, perhaps

horrifying to others.” As the Supreme Court explained, abortion doctors use D&E in the second

trimester because at that stage of fetal development, “the fetus is larger”—“particularly the

head”—and the “bones are more rigid,” meaning

“dismemberment or other destructive procedures” are required. . . . A physician extracts from

the womb what moments before had been a living

“unborn child”—using forceps, scissors, or a similar instrument that “slices, crushes, or grasps”

fetal body parts one at a time. Piece by piece. Arm

by arm. Leg by leg. And as the abortion doctor

“cut[s] or rip[s] the piece from the body”—a torso,

a spine, a rib cage—he places each body part on a

tray (or in a dish) 87 to keep inventory and ensure

that nothing is left behind. Sometimes the heart is

still beating on the tray. The fetus dies just as an

adult experiencing corporal dismemberment

would—by bleeding to death as his or her body is

torn apart.

Whole Woman’s Health, 978 F.3d at 913 (Willett, J., dissenting) (emphasis added) (citations omitted). 88 “As one

bioethicist testified, it’s ‘self-evident that it’s brutal and

inhumane to tear a living organism limb from limb

alive.’” Id. at 930. And “[n]o one would dispute that, for

many, D&E is a procedure itself laden with the power to

devalue human life.” Gonzales, 550 U.S. at 158. 89

See Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc v. Smith, 913 F.3d 551, 556 (5th Cir.

2019), on reh’g en banc sub nom. Planned Parenthood of Greater

Texas Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman,

981 F.3d 347 (5th Cir. 2020) (photograph of aftermath of D&E abortion).

See also Testimony of Dr. Anthony Levatino, C-SPAN,

“Planned Parenthood Medical Procedures,” https://www.

youtube.com/watch?v=j0tQZhEisaE.

Abortion providers do not dispute this. See W. Hern & B. Corrigan, What About Us? Staff Reactions to D&E, Adv. In Planned

Parenthood

Vol.

no.

3–8,

(Jan.

1980),

https://www.drhern.com/wp-content/uploads/2018/05/staff-reaction

-de.pdf (“[T]here is no possibility of denying an act of destruction.

It is before one’s eyes. The sensations of dismemberment flow

through the forceps like an electric current.”); L. Harris, Second

Trimester Abortion Provision: Breaking the Silence and Changing

the Discourse, Repro. Health Matters, Vol. 16 no. supp. 31, 74–81,

76 (2008), https://www.tandfonline.com/doi/pdf/10.1016/S09688080%2808%2931396-2?needAccess=true (“There is violence in

abortion, especially in second trimester procedures.”)

Given the recent evidence showing the fetus may experience pain as early as 12 weeks, researchers have directly concluded that “a D&E procedure will deliver repeated nociceptive events that may involve fetal pain before fetal death.” 90 Fetal pain is so likely that the same

researchers advocate for fetal analgesia to be used in

abortions, even before less outwardly brutal procedures

causing fetal death, such as feticidal injections. 91 But the

D&E procedure is inherently brutal and inhumane regardless of whether the fetus can feel it. We would never

countenance dismembering a person (or even an animal)

as a means of causing death, even if the person were

anesthetized first. 92

Researchers note that even among the general public, “concerns about what the fetus might experience or

feel have increased, and women considering an abortion

express concern about the welfare of the fetus.” 93 No

doubt, this is because of the advancements in ultrasound

technology described above. As Casey recognized, “most

women considering an abortion would deem the impact

on the fetus relevant, if not dispositive, to the decision.”

505 U.S. at 882. Yet because of Casey, Mississippi is compelled to permit doctors to kill living, pain-capable human children—because they are “previable” according to

Roe and Casey—in a way that “someone could not legally

Derbyshire, supra, at 5.

Id.

Moreover, a scientific disagreement about whether the fetus

feels pain at that age should not foreclose the State from “err[ing]

on the side of caution.” Whole Woman’s Health, 978 F.3d at 930

(Willett, J., dissenting). “Medical uncertainty does not foreclose the

exercise of legislative power in the abortion context any more than

it does in other contexts.” Gonzales, 550 U.S. at 164.

Derbyshire, supra, at 5. (footnotes omitted).

kill an animal.” Whole Woman’s Health, 978 F.3d at 930

(Willett, J., dissenting).

B. Casey is inconsistent with the Court’s

recognition of other State interests that

justify abortion restrictions.

By locking in “viability” as the only legally sufficient

reason a State may prohibit abortions, Casey is also outof-step with the Court’s own recognition of other state

interests justifying regulation of previability abortion.

Some examples: preventing the coarsening of society to

the humanity of newborns, Gonzales, 550 U.S. at 157; the

integrity and ethics of the medical profession, who must

simultaneously treat the unborn child as a patient in

some contexts and as mere “tissue” in others, 94 id.; protection of minors, Casey, 505 U.S. at 899–900; and maternal health, Roe, 410 U.S. at 154.

Because of advancements in genetic testing, it is now

possible to know the child’s sex soon after fertilization

and whether it has any genetic disorders, like Down Syndrome. Justice Thomas recently explained abortion’s ties

to the eugenics movement, noting that “technological advances have only heightened the eugenic potential for

abortion.” Box v. Planned Parenthood of Ind. & Ky., 139

S. Ct. 1780, 1784 (2019) (Thomas, J., concurring). Thus,

there is a “compelling interest in preventing abortion

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

1783 & n.2 (Thomas, J., concurring). But Casey does not

permit those interests to be considered in limiting abortion.

See Harris, supra, at 77 (“I thought to myself how bizarre it

was that I could have legally dismembered this fetus-now-newborn

if it were inside its mother’s uterus – but that the same kind of violence against it now would be illegal, and unspeakable.”)

Of particular relevance, multiple Justices that joined

Roe agreed that fetal pain and development are important considerations. Justice Blackmun, the author of

Roe, found it “obvious” that “the State’s interest in the

protection of an embryo … increases progressively and

dramatically as the organism’s capacity to feel pain, to

experience pleasure, to survive, and to react to its surroundings increases day by day.” Webster v. Reprod.

Health Servs., 492 U.S. 490, 552 (1989) (Blackmun, J.,

joined by Brennan and Marshall, JJ., concurring in part)

(cleaned up); see also id. at 569 (Stevens, J., concurring

in part) (stating that the interest in protecting a “developed fetus” from “physical pain or mental anguish” is

“valid”). As Justice Stevens wrote in Thornburgh v.

ACOG: “The development of a fetus—and pregnancy itself—are not static conditions, and the assertion that the

government’s interest is static simply ignores this reality.” 476 U.S. 747, 778 (1986) (Stevens, J., concurring).

Current science strengthens these interests, yet Casey precludes States from taking it into account when

limiting abortions. But “[t]he notion that anything in the

Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible.”

Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606,

2607 (2019) (Thomas, J., concurring). Based on Casey,

multiple lower courts have rejected even modest

measures to lessen suffering, like requiring feticide before D&E abortion. 95 Plainly, Casey goes too far in

See, e.g., EMW Women’s Surg. Ctr., P.S.C. v. Friedlander, 960

F.3d 785 (6th Cir. 2020), cert. granted in part sub nom. Cameron v.

EMW Women’s Surg. Ctr., P.S.C., 141 S. Ct. 1734 (2021); Whole

Woman’s Health, 978 F.3d 896; W. Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018).

limiting the ability of States to restrict abortion based on

compelling interests like fetal pain.

C. Casey’s standard is arbitrary and has had

damaging effects.

Casey acknowledged that while “legislatures may

draw lines which appear arbitrary without the necessity

of offering a justification … courts may not.” 505 U.S. at

870. But as time and science has revealed, Casey’s viability line is both arbitrary and unjustified. It requires the

Court to usurp a role that the Constitution gives to the

legislative branch and make decisions no court is

equipped to make. The Court’s adventure in abortion

policymaking has had damaging effects on our political

system. It is time to correct course.

1. The arbitrariness of the viability standard is

demonstrated through the Court’s own later precedent.

In 2003, the federal Partial-Birth Abortion Ban was enacted by Congress, citing the “medical fact” that “unborn

infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even

more intense than that of newborn infants and older children when subjected to the same stimuli.” Pub. L. No.

108-105, § 2(14)(M), 117 Stat. 1201 (2003) (noting that

“during a partial-birth abortion procedure, the child will

fully experience the pain associated with piercing his or

her skull and sucking out his or her brain”).

Gonzales upheld the Act. But because of Casey’s rigid

framework, it did so only because the typical D&E procedure described above was still permitted, enabling the

continued provision of previability second-trimester

abortion. As Justice Ginsburg noted, it is nonsensical

that the legality of a ban on an indisputably brutal procedure depended on the availability of an “equally”

brutal procedure. 550 U.S. at 181–82 (Ginsburg, J., dissenting). And as Justice Stevens noted, “[t]he notion that

either of these two equally gruesome procedures … is

more akin to infanticide than the other … is simply irrational.” Stenberg, 530 U.S. at 946–47 (Stevens, J., concurring). Yet this is the contradiction that Casey’s standard

requires.

2. As lower courts have recognized, “‘because the

Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate’

medical and scientific advances.” MKB Mgmt. Corp. v.

Stenehjem, 795 F.3d 768, 774 (8th Cir. 2015) (quoting

McCorvey, 385 F.3d at 852 (Jones, J., concurring)). The

very fact that science dates the Supreme Court’s abortion jurisprudence highlights an underlying problem: In

Casey, unelected judges evaluated scientific evidence

and “weigh[ed] the State’s interests in ‘protecting the potentiality of human life’ and the health of the woman, on

the one hand, against the woman’s liberty interest” in obtaining an abortion. June Med. Servs. LLC v. Russo, 140

S. Ct. 2103, 2136 (2020) (Roberts, C.J., concurring in the

judgment) (quoting Casey, 505 U.S. at 878). In other

words, in holding that States cannot prohibit abortion for

any reason before viability, Casey “has already balanced

the State’s asserted interests and found them wanting.”

Dobbs, 945 F.3d at 274. Based on their professional

knowledge, amici physicians submit that the Court has

empirically—and emphatically—struck the wrong balance.

But “[t]here is no plausible sense in which anyone, let

alone this Court, could objectively assign weight to such

imponderable values and no meaningful way to compare

them if there were.” June Med., 140 S. Ct. at 2136

(Roberts, C.J., concurring in the judgment). “Pretending that [the Court] could pull that off would require us

to act as legislators, not judges, and would result in nothing other than an ‘unanalyzed exercise of judicial will’ in

the guise of a ‘neutral utilitarian calculus.’” Id. (citation

omitted). The Court has become the national “ex officio

medical board” it did not want to be. Gonzales, 550 U.S.

at 164 (quoting Webster, 492 U.S. at 518–19. It should relinquish that role.

3. The Court’s foray into medical regulation may not

merely be stagnating the legal standard despite advancing science—it may be impeding science. Researchers

fear that acknowledging science on fetal pain may lead to

restriction on abortion. 96 ACOG’s clinging to decade-old

research illustrates this point. 97 It also illustrates how

ACOG’s views 98 are based less on science and more on

the politics of protecting Roe and Casey. It is unconscionable to think that the “medical” community shapes “the

science” to fit its political goals. But this is the division

the Court’s abortion jurisprudence inflames.

4. Abortion is one of the most controversial issues in

the United States and is likely so because of this Court’s

intervention. The Court’s gambit in attempting to

See Derbyshire, supra, at 3 (“Fetal pain has long been a contentious issue, in large part because fetal pain is often cited as a reason to restrict access to termination of pregnancy or abortion.”); see

also Harris, supra, at 77 (abortion providers are “silen[t]” about the

violence of abortion because “frank talk like this is threatening to

abortion rights.”)

See ACOG, Facts are important, supra.

Most practicing obstetrician-gynecologists do not share this

view, as over 85% do not perform abortions. D. Stulberg, et al.,

Abortion provision among practicing obstetrician-gynecologists,

Obstet. Gyn., Vol. 118 no. 3, 609–14 (Sept. 2011),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3170127/.

answer the question for all time and remove the issue

from public debate, see Casey, 505 U.S. at 867, has had

the opposite effect. Confirmations to this Court are now

political bloodsport because of abortion. At least half of

the American public is still as intensely opposed to abortion as it was in 1973. 99

The most democratic solution would be for this Court

to stop acting as “ex officio medical board” and permit

State legislatures, which are politically accountable if

they strike the wrong balance, and can nimbly respond

to current science, to take its place. The Court should not

be tempted to simply draw another arbitrary line, as that

will result in yet more intense litigation and the issue repeatedly returning to the Court. Nor should the Court

hold blindly to principles of stare decisis in retaining unworkable, outdated precedent. Judges “may have compulsions to revere past history and accept what was once

written. But he [or she] remembers above all else that is

the Constitution which he swore to support and defend,

not the gloss which his predecessors may have put on

it.” 100

***

This brief ends where Casey began: “Liberty finds no

refuge in a jurisprudence of doubt.” 505 U.S. at 843. “Yet

[48] years after … holding that the Constitution protects

a woman’s right to terminate her pregnancy in its early

stages, that definition of liberty is still questioned.” Id.

(citation omitted). Scientific advancements over the last

See, e.g., Americans’ Opinions on Abortion: Knights of Columbus/Marist

Poll

Nat’l

Survey

(Jan.

2021),

https://www.kofc.org/en/resources/news-room/polls/kofc-nationalsurvey-with-tables012021.pdf.

100

Garner, supra, at 354 (quoting William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949)) (emphasis added).

48 years have multiplied, not reduced, those doubts, as

the humanity of the unborn child is undeniable. The

Court should relinquish its role as nationwide abortion

regulator and return the job to States and elected officials where it belongs.

C O NC LU SIO N

The judgment of the court of appeals should be reversed.

Respectfully submitted.

HEATHER GEBELIN HACKER

Counsel of Record

HACKER STEPHENS LLP

108 Wild Basin Rd., Suite 250

Austin, Texas 78746

heather@hackerstephens.com

(512) 399-3022

JULY 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.