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 briefSep 16, 2021

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No. 19-1392

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------THOMAS E. DOBBS, M.D., M.P.H., State Health Officer

of the Mississippi Department of Health, et al.,

Petitioners,

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 ANTHONY HAWKS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------STEPHEN C. LECKAR

Counsel of Record

KALBIAN HAGERTY LLP

888 17th St. NW, Twelfth Floor

Washington, DC 20006

sleckar@kalbianhagerty.com

(202) 223-5600

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

iii

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

SUMMARY OF THE ARGUMENT .....................

ARGUMENT ........................................................

Constitutional Protection for an Unenumerated Liberty Right Is Properly Analyzed Under a Four-Part Framework ........

A. Does the Due Process Clause Provisionally Recognize the Unenumerated

Liberty Right at Issue? ........................

B. Is the State Exercising a Police Power

to Secure and Protect Individual

Rights or Merely to Promote a Preferred End? ..........................................

C. What Level of Scrutiny Applies to

Provisional Unenumerated Liberty

Rights?....................................................... 12

D. When Tested Against the Provisional

Unenumerated Liberty Right, Does

the Purported State Interest Pass

Scrutiny? .............................................. 18

II.

Roe and Casey Should Be Upheld on Stare

Decisis Grounds Because Their Holdings

Were Correct When Limited to Their

Facts ........................................................... 20

TABLE OF CONTENTS – Continued

Page

A. Petitioners Fail to Distinguish Provisional Constitutional Rights from Protected Constitutional Rights ............... 20

B. Abortion Is a Provisional Unenumerated Liberty Right Because It Is Implied by Ordered Liberty in the Absence

of Conflicting Fetal Rights .................... 21

C. The States in Roe and Casey Were

Asserting Their Weaker Police Power

to Promote Fetal Life, Not Their

Stronger Police Power to Protect Fetal

Rights .................................................. 25

D. The Undue Burden Test and the Viability Rule Are Good Faith Constitutional Constructions of Heightened

Scrutiny for States that Do Not Recognize Fetal Rights ................................. 29

E. Roe and Casey Should Be Re-Affirmed

Because They Were Correctly Decided

When Limited to Their Facts .............. 33

III.

The Decision Below Should Be Affirmed Because Mississippi Does Not Recognize Fetal

Rights. Its Position Is Therefore Governed

and Rejected by Roe and Casey ................... 34

CONCLUSION..................................................... 36

iii

TABLE OF AUTHORITIES

Page

CASES

Bowers v. Hardwick, 478 U.S. 186 (1986) ........... passim

FCC v. Beach Communications, Inc., 508 U.S.

307 (1993) .......................................................... 14, 15

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

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

Lehnhausen v. Lake Shore Auto Parts Co., 410

U.S. 356 (1973) ........................................................15

Loving v. Virginia, 388 U.S. 1 (1967) ..........................11

Meyer v. Nebraska, 262 U.S. 390 (1923) ............. passim

O’Gorman & Young, Inc. v. Hartford Fire Insurance Co., 282 U.S. 251 (1931) ............................ 13, 14

Palko v. Connecticut, 302 U.S. 319 (1937) ............ 7, 8, 9

Pierce v. Society of Sisters, 268 U.S. 510

(1925) ............................................................... passim

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ............... passim

Poe v. Ullman, 367 U.S. 497 (1961).............................19

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)...............33

Robinson v. Marshall, Civil Action No. 2:19cv365MHT, M.D. Ala. (filed May 24, 2019) ......................25

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

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

Williamson v. Lee Optical of Oklahoma, Inc., 348

U.S. 483 (1955) ........................................................14

TABLE OF AUTHORITIES – Continued

Page

STATE CONSTITUTIONAL PROVISIONS

Alabama Constitution, Amendment 930 ...................24

Louisiana Constitution, Article 1, Section 20.1 .........24

Pennsylvania Constitution, Article 1, Sections 7,

8, 20, 21....................................................................22

Tennessee Constitution, Article 1, Section 36 ...........24

Texas Constitution, Article 1, Sections 8, 19, 23,

and 27 ......................................................................22

West Virginia Constitution, Article 6, Section 57 ....... 24

STATE STATUTORY PROVISIONS

Alabama Code, Title 26, Sections 26-23H-1 to

26-23H-8 ..................................................................25

Mississippi Code Ann. Section 41-41-191 ..................25

Texas Penal Code, Articles 1191 to 1196 (1911) ..... 26, 32

OTHER AUTHORITIES

Randy E. Barnett, Scrutiny Land, 106 Michigan

Law Review 1479 (June 2008) .......................... 14, 16

Randy E. Barnett and Evan D. Bernick, The

Letter and The Spirit: A Unified Theory of

Originalism, 107 Geo. L. J. 1 (2018) .......................31

Glenn H. Reynolds and David B. Kopel, The

Evolving Police Power: Some Observations for

a New Century, 27 Hastings Constitutional

Law Quarterly 511 (2000).......................................10

TABLE OF AUTHORITIES – Continued

Page

Samuel Williston, Freedom of Contract, 6 Cornell L. Q. 365 (1921) ................................................10

INTEREST OF AMICUS CURIAE1

Anthony Hawks is an active member in good

standing of the District of Columbia Bar and a licensed

attorney since 1984. Since first reading Griswold v.

Connecticut2 in law school, he has had a scholarly interest in legal doctrine as it relates to unenumerated

constitutional rights. He is filing this amicus brief to

propose a more logical, consistent, stable, and predictive framework for recognizing and protecting noneconomic liberty rights under the Due Process Clause,

including but not limited to the right of abortion before

viability.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

The constitutionality of restrictive abortion statutes should be analyzed like other statutes that deny

or restrict non-economic liberty rights, based on the

following analytical framework:

1. Does the Due Process Clause provisionally

recognize the unenumerated liberty right at issue?

If the purported liberty right does not conflict with

the equal rights of others, then it is implied by ordered

This amicus brief is submitted under the Blanket Consents

filed by both Petitioners and Respondents. Pursuant to Rule 37.6,

no counsel for any party authored any part of this brief and that

no person or entity other than amicus funded its preparation and

submission.

381 U.S. 479 (1965) (“Griswold”).

liberty and the answer is “yes”: it should be recognized

on a provisional basis. A provisional liberty right, however, does not become a protected liberty right unless

the government’s purported countervailing interests

fail to meet the applicable level of scrutiny.

2. Is the state exercising a police power to secure and protect individual rights or merely to

promote a preferred end?

As classically formulated, the police power consists of both a primary power to protect and secure individual rights and a secondary power to promote

interests, values, goals, or ends that the state favors.

The primary power is necessarily stronger than the

secondary power because securing and protecting individual rights is the core political value in our system

of government. Moreover, securing and protecting individual rights are permanent duties of government,

whereas the preferred end that a government promotes at any given time is frequently ephemeral and

rejected by future generations.

3. What level of scrutiny applies to provisional unenumerated liberty rights?

For unenumerated liberty rights deemed “fundamental” under Washington v. Glucksberg,3 the answer

is strict scrutiny. But there are also unenumerated liberty rights that do not qualify as “fundamental” under

Glucksberg, which this Court has long protected under

some form of “heightened scrutiny” in lieu of the highly

521 U.S. 702 (1997) (“Glucksberg”).

deferential rational-basis test applied to post-New

Deal economic rights. These cases implicate the personal autonomy of an individual, including Roe v.

Wade4 and Planned Parenthood of Southeastern Pennsylvania v. Casey.5

4. When tested against the provisional unenumerated liberty right, does the purported

state interest pass scrutiny?

This final inquiry can lead to a range of outcomes.

If the state is exercising its primary policy power to

secure and protect individual rights, and only rationalbasis review applies, then the government will likely

win. Conversely, if the state is exercising its secondary

police power to promote a transient interest, and strict

scrutiny applies, then the government will likely lose.

In personal autonomy cases, the individual is more

likely to prevail because the state is exercising its secondary police power in a way that fails to overcome a

heightened scrutiny standard.

Applying this framework, the holdings in Roe and

Casey were correct. Absent any countervailing fetal

rights, abortion is a provisional liberty right of the

woman. Since neither Roe nor Casey involved states

that recognized fetal rights, only the weaker secondary

police power was being exercised in those cases. As a

provisional liberty right, abortion is entitled to heightened scrutiny like other personal autonomy cases.

Moreover, both the undue burden test in Casey and

410 U.S. 113 (1973) (“Roe”).

505 U.S. 833 (1992) (“Casey”).

viability rule retained from Roe are good faith constitutional constructions for implementing the “liberty”

protected by the Due Process Clause. Accordingly, neither Roe nor Casey are erroneous holdings, and both

should be reaffirmed on stare decisis grounds, but limited to states where fetal rights are not recognized.

Since Roe, as modified by Casey, should be retained as good law, and Mississippi does not recognize

fetal rights, the Mississippi Gestational Age Act is governed by both the undue burden test and the viability

rule. An outright ban prior to viability is necessarily an

undue burden and thus fails to satisfy the heighten

scrutiny required to deny or restrict abortion as a provisional liberty right. The Act is therefore unconstitutional, and the decision below must be affirmed.

---------------------------------♦---------------------------------

ARGUMENT

Constitutional Protection for an Unenumerated Liberty Right Is Properly Analyzed Under a Four-Part Framework.

According to Petitioners, “[t]he Constitution’s text

says nothing about abortion.”6 But this is true of every

unenumerated right protected by this Court, including

the right to teach a foreign language to grade school

children, Meyer v. Nebraska;7 the right of parents to

send their children to non-public schools, Pierce v.

Brief for Petitioners at 12 (filed July 22, 2021) (“Pet. Br.”).

262 U.S. 390 (1923) (“Meyer”).

Society of Sisters;8 the right of married couples to use

contraceptives, Griswold;9 and the right of same sex

persons to engage in intimate sexual conduct, Lawrence v. Texas.10

These are just a few of the more famous examples,11 but they have been singled out for a reason:

Pierce invoked Meyer as supporting precedent; Griswold invoked Meyer and Pierce; and both Roe and Lawrence invoked all three. In short, they represent two

continuous lines of case precedents where “personal

autonomy” (in the sense of self-governing moral agency

and independence) is at stake: (1) Meyer → Pierce→

Griswold → Lawrence; and (2) Meyer → Pierce→ Griswold → Roe. Yet in attacking Roe, Petitioners let Meyer,

Pierce, Griswold, and Lawrence stand unchallenged as

widely accepted precedent. The burden is therefore on

Petitioners to explain why Meyer and its other progeny

should remain good law, yet Roe supposedly should not.

There is indeed a difference between Roe and

these other personal autonomy cases, but it is not

found in the source or nature of the unenumerated

right. Rather it is found in the nature of the asserted

countervailing state interest. Petitioners have failed to

grasp this difference, causing them to wrongly deny

268 U.S. 510 (1925) (“Pierce”).

381 U.S. 479 (1965).

539 U.S. 558 (2003) (“Lawrence”).

See generally Casey, 505 U.S. at 849-851 (discussing other

cases that can fairly be described as protecting personal autonomy rights).

abortion as a provisional unenumerated liberty. The

source of an unenumerated right is analytically distinct from an assessment of the state interest, and it

is this distinction that provides the proper framework

for determining when unenumerated liberty rights

should be protected under the Due Process Clause.

This framework consists of four inquiries:

A. Does the Due Process Clause Provisionally Recognize the Unenumerated

Liberty Right at Issue?

This question rarely occurs with enumerated

rights because the enumeration itself usually answers

the question. With unenumerated rights the issue

arises frequently because, whereas the Court has articulated in Glucksberg when a liberty right is “fundamental,” there is no established test for when a

non-fundamental liberty right exists under the Due

Process Clause. This question is different from when a

liberty right is protected under the Due Process Clause.

The former asks when an activity is presumptively or

provisionally accepted as a liberty right, subject to being denied or constrained by an exercise of state police

power. Whether this provisional right should then be

protected depends on the strength of the state interest

being asserted and the level of scrutiny that must be

satisfied.

Distinguishing provisional rights from protected

rights is necessary not only for locating the constitutional source of an unenumerated right, but also for

avoiding mistakes like the one that occurred in Bowers

v. Hardwick.12 The issue presented in Bowers was misconstrued as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage

in sodomy. . . .” This phrasing wrongly implied that a

right had to be fundamental before it could be protected, which as the Lawrence Court later noted, was

a “failure to appreciate the extent of the liberty at

stake.”13

In fact, this Court has protected many unenumerated rights under the Due Process Clause without applying the strict scrutiny required for fundamental

rights. Indeed, this was the case in Lawrence itself,

which struck down the challenged Texas statute under

what appears to be rational-basis review because

Texas had “no legitimate state interest which can justify its intrusion into the personal and private life of

the individual.”14 But if the Lawrence Court correctly

found that intimate same sex activity was a liberty

right that Texas could not overcome, it gave insufficient guidance as to when other types of conduct will

qualify as a provisional liberty right.

Providing the correct answer should not be a difficult question. To the contrary, it can be resolved by a

commonsense approach to the oft-used phrase “implicit in the concept of ordered liberty.” This phrase appears to have first surfaced in Palko v. Connecticut,15

478 U.S. 186, 190 (1986) (“Bowers”).

539 U.S. at 567.

Id. at 578.

302 U.S. 319 (1937) (“Palko”).

which used the phrase to limit those federal constitutional rights that qualified for “incorporation” against

the states. To accomplish that goal, Palko gave the

phrase a highly restrictive meaning that only referred

to those enumerated rights in the Bill of Rights which

deserved to be “incorporated” because “neither liberty

nor justice would exist if they were sacrificed.”16 Using

the word “implicit” in this way gives it much narrower

scope than its more obvious meaning of “implied by.” It

is more akin to saying that a right must be “integral”

or “essential” to the concept of ordered liberty.

This phrase and its narrow meaning were later

imported as one of the tests in Glucksberg17 for determining when an unenumerated liberty right is deemed

“fundamental” and thus worthy of strict scrutiny protection. In doing so, the Court did not explain what “ordered liberty” meant, but the plain meaning of the

phrase (in the sense of “implied by”) is not difficult to

understand: it is simply a way of recognizing that individuals have an infinite number of natural liberty

rights to live their lives as they choose – the “liberty”

component – so long as they do not infringe the equal

rights of others to do the same – the “ordered” component. Thus, rather than limiting the “concept of ordered

liberty” to some highly restricted set of fundamental

strict scrutiny rights, the rights that should be “implicit” in ordered liberty are any liberty rights that do

Id. at 326.

521 U.S. at 721.

not, by their nature, conflict with the equal liberty

rights of others.18

Although the Court has not analyzed “liberty” under the Due Process Clause in precisely this way, the

approach is fully consistent with the “explication of individual liberty” given in Casey,19 and later applied in

Lawrence,20 where the Court struck down statutes under the broader concept of “liberty” rather than a narrower right of privacy. Applying such a standard for

recognizing a provisional liberty right is also effectively what happened in each of the Meyer line of cases,

including Roe, Casey, and Lawrence. None the rights

asserted in these cases involved violations of anyone

else’s liberty rights.

B. Is the State Exercising a Police Power to

Secure and Protect Individual Rights or

Merely to Promote a Preferred End?

To repeat: a provisional right is not a protected

right. It must still be tested against any countervailing

interest asserted by the government (state or federal)

To avoid confusion with Palko’s use of “implicit in the concept of order liberty,” this amicus brief will use the phrase “implied by ordered liberty” to indicate its broader meaning of any

liberty rights that do not infringe or conflict with the equal liberty

rights of others.

505 U.S. at 853 (“It was this dimension of liberty that Roe

sought to protect. . . .”).

539 U.S. at 567 (“The [anti-sodomy] statutes do seek to

control a personal relationship that . . . is within the liberty of

persons to choose without being punished as criminals.”).

in the exercise of a specific police power. Whether a provisional right should become a protected right will depend not only on the level of scrutiny being applied, but

also on the strength of police power being asserted.

Significantly, not all police powers are equal.

The classic formulation of the police power holds

that it may be used for the “safety, health, morals, and

the general welfare of the people.”21 This early formulation, however, fails to distinguish between safety and

health, on the one hand, and morals and the general

welfare, on the other hand. Simply put, the former are

stronger exercises of the police power because they secure or protect individual rights; the latter are weaker

exercises of the police power when they serve only to

promote those interests, values, goals, or ends preferred by the government as reflected in duly enacted

statutes and regulations.

This distinction between a stronger primary protective police power and a weaker secondary promotional police power is derived from how the scope of the

police power developed over time. Historically, limitations on the police power originated in “the common

law principle of sic utere tuo ut alienum non laedas

(you should use what is yours so as not to harm what

is others’), implying that legitimate regulation existed

only to prevent concrete harm to specified interests.”22

Samuel Williston, Freedom of Contract, 6 Cornell L. Q.

365, 375-376 (1921).

Glenn H. Reynolds and David B. Kopel, The Evolving Police Power: Some Observations for a New Century, 27 Hastings

Constitutional Law Quarterly 511, 511 (2000).

This sic utere principle is the source of the primary protective police power. It was only later, at the beginning

of the Twentieth Century, that a promotional element

was added to the police power under “the new principle

of salus populi est suprema lex (the good of the public

is the supreme law) suggesting that states could regulate as they chose so long as they claimed to be working

to promote the public safety, welfare, or morality.”23

But the primary police power is not simply the

stronger power because it developed first. It is stronger

because securing individual rights is the core political

value in our system of government, as famously captured in the Declaration of Independence: “That to secure these Rights [to Life, Liberty, and the Pursuit of

Happiness], Governments are instituted among Men.”

More than that, securing and protecting individual

rights are permanent duties of government, whereas

the preferred end that a government promotes at any

given time is often ephemeral and rejected by future

generations.24

Moreover, this Court has itself recognized the

weaker nature of the secondary police power in

personal autonomy cases like Lawrence, where the

dissenting view of Justice Stevens in Bowers was

expressly adopted: “ . . . the fact that the governing

majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for

Id.

See, e.g., Loving v. Virginia, 388 U.S. 1 (1967).

upholding a law prohibiting the practice.”25 The same

sentiment was also expressed in Casey itself, which

stated that “[O]ur obligation is to define the liberty of

all, not to mandate our own moral code.”26 This now

leaves the question of what particular level of scrutiny

should govern the (stronger or weaker) police power

being exercised.

C. What Level of Scrutiny Applies to Provisional Unenumerated Liberty Rights?

Petitioners are adamant that the appropriate level

of scrutiny in this case is not any form of heightened

scrutiny, but rational-basis review only.27 What Petitioners ignore, however, is that all of the Meyer line of

cases – none of which they challenge other than Roe –

applied a form of heightened scrutiny greater than the

highly deferential rational-basis test that is associated

with restrictions on economic and commercial rights.

Here is the operative language in Meyer28 (and followed in Pierce29): “The established doctrine is that this

liberty may not be interfered with, under the guise

of protecting the public interest, by legislative action

which is arbitrary or without reasonable relation to

some purpose within the competency of the State to effect.” Similarly, as noted above, Lawrence struck down

539 U.S. at 577.

505 U.S. at 850.

Pet. Br. at 19-22, 36-38.

262 U.S. at 399-400.

268 U.S. at 534-535.

the Texas statute because it “furthers no legitimate

state interest which can justify its intrusion into the

personal and private life of the individual.”30 Ironically,

Lawrence agreed with Bowers that intimate sexual

conduct between same sex partners was not a “fundamental right” since the Court concluded that it was a

protected right without the application of strict scrutiny.31

Superficially, these cases sound like rational-basis

review, but the rational-basis test that currently applies to economic and social welfare legislation was not

the test used in Meyer, Pierce, or Lawrence. The standard description of rational-basis review is whether

the law in question is “rationally related to legitimate

government interests,”32 but over time three codicils

have been added to the rational-basis test that make it

inappropriate to characterize Meyer, Pierce, or Lawrence as rational-basis review cases.

First: The Court placed the burden of proof on the

challenger. In refusing to strike down an insurance

regulation, the Court held in O’Gorman & Young, Inc.

v. Hartford Fire Insurance Co.33 that “the presumption

of constitutionality must prevail in the absence of some

factual foundation of record for overthrowing the statute.” Since the record in O’Gorman was “barren of any

allegation of fact tending to show unreasonableness,”

539 U.S. at 578.

Id. at 590 n.2 (Scalia, J., dissenting).

Glucksberg, 521 U.S. at 728.

282 U.S. 251, 257-258 (1931).

the burden was on the challenger to show that the statute was unreasonable.34

Second: The Court made the presumption of constitutionality virtually irrebuttable. In Williamson v.

Lee Optical of Oklahoma, Inc.,35 the Court upheld a law

that only allowed licensed optometrists or ophthalmologists to replace broken lenses, and which prohibited

out-of-state eyeglass retailers from advertising in Oklahoma. It did not matter what justification the state

actually offered to support the constitutionality of the

statute; it was enough for the court to simply imagine

why the legislature could have enacted the law.36 Any

conceivable reason would do, even if the “law . . . exact[ed] a needless, wasteful requirement . . . ,” or the

law was “not . . . in every respect logically consistent

with its aims. . . .”37 Under Williamson, it was now

“enough that there is an evil at hand for correction, and

that it might be thought that the particular legislative

measure was a rational way to correct it.”38

Third: The plaintiff must now affirmatively rebut

every conceivable state justification for the challenged

law. In FCC v. Beach Communications, Inc.,39 the Court

explained that “[i]n areas of social and economic policy,

Id. at 258.

348 U.S. 483 (1955).

See Randy E. Barnett, Scrutiny Land, 106 Michigan Law

Review 1479, 1485 (June 2008; “Scrutiny Land”).

Williamson, 348 U.S. at 487.

Id. at 488 (italics added).

508 U.S. 307, 313 (1993).

a statutory classification that neither proceeds along

suspect lines nor infringes fundamental constitutional

rights must be upheld . . . if there is any reasonably

conceivable state of facts that could provide a rational

basis for the classification.” Thus, it now became the

burden of those challenging a law “to negative every

conceivable basis which might support it.”40

These three codicils make the rational-basis test

a standard of extreme deference that Meyer, Pierce,

Griswold, and Lawrence plainly did not follow or deem

worthy of consideration. Thus, even though these seminal cases used language that resembles rational-basis

review, it was not the type of review mandated by the

current rational-basis test. Instead, the Court requires

greater scrutiny than rational-basis review for personal autonomy cases like Meyer and its progeny, but

not the strict scrutiny that would apply if these cases

concerned “fundamental” rights under the two-prong

Glucksberg test.41

Since Meyer, Pierce, and Lawrence all applied a

form of heightened scrutiny, Petitioners are not simply

challenging Roe and Casey by arguing that “heightened scrutiny” should be replaced with “the rationalbasis review that applies to all laws”;42 they are also

unabashedly undermining the results and reasoning

in all of these personal autonomy cases. Consequently,

Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts

Co., 410 U.S. 356, 364 (1973) (italics added).

521 U.S. at 721.

Pet. Br. at 13 (citing Glucksberg, 521 U.S. at 728).

Petitioners must either show that Roe and Casey are

not personal autonomy cases at all or concede that they

are asking the Court to adopt a scrutiny standard under which the Meyer, Pierce, Griswold, and Lawrence

plaintiffs would now lose.

This is not to say that the meaning of “heightened

scrutiny” requires no refinement. To the contrary, the

analysis above suggests that “heightened scrutiny” can

and should differ from rational-basis review by discarding the three codicils. Instead of positing a presumption of constitutionality for personal autonomy

cases, the Court should clarify that under “heightened

scrutiny” the government carries the burden of proof

in denying or restricting these liberty rights. No longer

should the government be allowed to prevail without

putting on evidence of at least a prima facie case. No

longer should it be allowed to make up theoretical justifications after the fact. No longer should judges be invited to supply justifications that the government

failed to conceive. And no longer should the plaintiff be

required to negate every possible reason that could be

imagined propping up the government’s case like a potemkin village.

What would be the effect of removing the three

codicils from modern rational-basis review in personal

autonomy and other non-economic liberty cases? It

would resemble how courts currently protect the First

Amendment natural rights of free speech, press, and

peaceable assembly.43 Under this approach, wrongful

Scrutiny Land, note 36, supra, at 1499.

acts like fraud, defamation, or trespass can be prohibited, while rightful exercises of speech or assembly can

be regulated by “time, place, and manner” rules.44 But

in all cases, exercises of police power must incorporate

a suitable means-ends fit that does “not place an undue

burden on the exercise of these rights, and [shows] they

are not pretexts for prohibiting” liberties disfavored by

the legislature.45 In short, the government would have

to justify restrictions on personal autonomy rights as

in Lawrence, which protected “liberty” generally and

treated same sex intimate conduct as a provisional liberty right rather than a “fundamental” right under

Glucksberg.46

In Lawrence, even without a “fundamental” right

at stake, Texas was not given the benefit of an irrebuttable standard of constitutionality; instead, it was required to justify its statute. When the only excuse

Texas could provide was moral disapproval by the governing majority that enacted the statute, it lost.47 This

result underscores how differently the Court treated

the moral disapproval rationale in Bowers. Having initially rejected the “fundamental rights” argument, the

Bowers Court accepted the same rationale later rejected in Lawrence essentially as a platitude requiring

no justification by the state under rational-basis review.48 The fact that Texas had to provide a convincing

Id.

Id. (italics added).

539 U.S. at 562.

Id. at 577-578.

478 U.S. at 196.

justification in Lawrence under a heightened scrutiny

standard made all the difference.

D. When Tested Against the Provisional

Unenumerated Liberty Right, Does the

Purported State Interest Pass Scrutiny?

To be protected under the Due Process Clause,

[1] a provisional liberty right must prevail against

[2] the police power being exercised [3] in the context

of heightened scrutiny. This determination of course is

the essence of judging and can only be done on a caseby-case basis after weighing the consequences of denying or restricting the liberty right. Still, Meyer, Pierce,

Griswold, and Lawrence all show how well this analytical framework applies to personal autonomy cases.

First, the asserted liberty right in each case was

“implied by ordered liberty” in that none of these rights

infringed or conflicted with other individual rights.

Whether it was the right to teach a foreign language

(Meyer); the parental right of school choice (Pierce); a

married couple’s right to use contraceptives (Griswold); or the right of intimate sexual conduct between

same sex partners (Lawrence), none of these rights implicated, much less infringed the individual rights of

any other person. Except for Griswold, which eschewed

Justice Harlan’s due process analysis, each of these

rights was therefore presumed to be a Due Process

Clause liberty interest worthy of protection unless the

state could furnish a stronger countervailing interest.49

Second, none of the governmental interests asserted in these cases were for the purpose of securing

or protecting individual rights. Rather they were all

exercises of the secondary promotional police power. In

Meyer, the enactment of the Nebraska statute had the

“obvious purpose . . . that the English language should

be and become the mother tongue of all children reared

in this state.”50 In Pierce, Oregon imposed compulsory

public education to “reasonably regulate all schools”

for the purpose of promoting “good citizenship” and ensuring that “nothing be taught which is manifestly inimical to the public welfare.”51 In Poe v. Ullman,52 and

Griswold,53 Connecticut was ostensibly banning contraceptives to “minimize ‘the disastrous consequence of

dissolute action,’ that is fornication and adultery.”

Lastly, in Bowers54 and Lawrence,55 the state was only

claiming to prevent what purportedly was “unacceptable” to most of its populace on grounds of morality.

Thus, in all these personal autonomy cases, there

was a provisional liberty right pitted against an

See Meyer, 390 U.S. at 399; Pierce, 268 U.S. at 534; Lawrence, 539 U.S. at 567.

262 U.S. at 398.

268 U.S. at 534.

367 U.S. 497, 545 (1961) (Harlan, J., dissenting) (“Poe”).

381 U.S. at 498 (Goldberg, J., concurring).

478 U.S. at 196.

539 U.S. at 571.

exercise of the weaker police power to promote what at

the time was a majoritarian concept of public morality

or welfare. Given the heightened scrutiny applied in

each case, Meyer, Pierce, and Griswold all protected

the liberty right and Lawrence overruled Bowers to

achieve the same result. More importantly, this analytical approach explains why each of these cases has

been broadly accepted into the constitutional canon as

well-justified in their results, if not their reasoning.

The question now raised by Petitioners is whether Roe

and Casey also fit within this framework as protected

personal autonomy liberty rights.

Roe and Casey Should Be Upheld on Stare

Decisis Grounds Because Their Holdings

Were Correct When Limited to Their Facts.

II.

A. Petitioners Fail to Distinguish Provisional Constitutional Rights from Protected Constitutional Rights.

Petitioners begin with the dual assertions that the

“Constitution’s text says nothing about abortion” and

“[n]othing in the Constitution’s structure implies a

right to abortion or prohibits States from restricting

it.”56 But if this is true, then it is equally true of the

Meyer line of cases, which still protected their respective personal autonomy rights without treating them

as fundamental rights worthy of strict scrutiny. The

constitutional source of the abortion right is the Due

Process Clause, but Petitioners have led themselves

Pet. Br. at 12.

astray by their failure to distinguish provisional constitutional rights from protected constitutional rights.

As this Court stated in Casey, the “controlling” constitutional text is the word “liberty,”57 but “liberty” does

not in itself mean that the abortion right must be protected. It only suggests that the abortion right is provisional in nature as long as it does not conflict with

the equal rights of others. Absent such a conflict, the

abortion right would be implied by ordered liberty and

thus would qualify as a provisional liberty right that

the state must overcome if it wishes to deny or restrict

it.

B. Abortion Is a Provisional Unenumerated

Liberty Right Because It Is Implied by

Ordered Liberty in the Absence of Conflicting Fetal Rights.

Whether the abortion right conflicts with other liberty rights was only discussed tangentially in Roe

when the Court addressed whether a fetus was a “person” under the Federal Constitution.58 Roe concluded

that “the word ‘person,’ as used in the Fourteenth

Amendment, does not include the unborn,”59 and this

issue was not re-visited in Casey or since. In neither

case, however, did the Court address whether fetuses

could be “persons” or even citizens with their own liberty rights under state law.

505 U.S. at 846.

410 U.S. at 156-158.

Id. at 158.

In fact, both Texas and Pennsylvania failed to

raise this issue, and Mississippi does not do so now. Nor

is it easy to see how they could have made such a farranging claim. The Texas Bill of Rights (then or now)

does not reference unborn life and reserves many of

its most important rights to “citizens.”60 Even when

“person” is used,61 there is no definition or construction

of “person” to suggest that fetuses are included. The

Pennsylvania Declaration of Rights follows suit by

reserving freedom of the press and speech to “every

person”;62 securing the “people” from unreasonable

searches and seizures;63 and granting “citizens” the

right of assembly and petition64 and the right to bear

arms.65

An amicus for Petitioners suggests that the widespread enactment of “fetal homicide laws” shows that

these states “recognize that preborn human fetuses are

human beings entitled to protection under law.”66 Similarly, the claim is made that fetuses “are recognized as

human persons in numerous contexts,” including inter

See, e.g., Tex. Const. Art. 1, Sec. 19 (Due Course of Law);

Art. 1, Sec. 23 (Right to Keep and Bear Arms); Art. 1, Sec. 27

(Right of Assembly; Petition for Redress).

See, e.g., Tex. Const. Art. 1, Sec. 8 (Freedom of Speech and

Press).

Pa. Const., Art. 1, Sec. 7.

Id. at Sec. 8.

Id. at Sec. 20.

Id. at Sec. 21.

Brief for Amicus Curiae Illinois Right to Life in Support of

Petitioners at 17 (filed July 20, 2020).

alia prohibitions on capital punishment for pregnant

women and tort recovery under fetal wrongful death

statutes.67

This line of reasoning is faulty because these types

of laws do not declare the fetus to be full autonomous

persons in their own right. Rather, they protect the

fetus for a particular limited purpose that more accurately falls within their primary police power to protect the rights of parents to have their unborn child

reach birth unharmed. It would be a non sequitur to

conclude that protecting parental rights to ensure the

safety of their unborn children in and of itself creates

a right to life belonging independently to the fetus.

The passage of these types of fetal protection laws

also says nothing about where the power to declare fetuses as full persons or citizens resides under state law.

It may be that a state constitution vests this power in

the state legislature, but it would be bootstrapping to

assert that the police power to secure and protect

rights implies a power to create rights in order to protect them. Presumably the power to grant personhood

or citizenship rights under state law is “reserved” under the Tenth Amendment, but whether it is reserved

to state legislatures or only “to the people” is an open

question.

To date, four states have ratified so-called “Human

Life Amendments” (“HLAs”) to their constitutions,

Id. at 18.

including Tennessee,68 Alabama,69 West Virginia,70 and

Louisiana.71 Three of these enactments (Tennessee,

West Virginia, and Louisiana) are simply rules of construction to clarify that their respective constitutions

do not “secure or protect” an abortion right. Most notably they do not grant, or even purport to grant, fetal

personhood or citizenship status. The novel and unique

enactment is the Alabama HLA, which contains the

same rule of construction, but goes further in both (1)

recognizing “the rights of unborn children, including

the right to life” and (2) giving constitutional protection to “the rights of the unborn child in all manners

and measures lawful and appropriate.”72

The Alabama HLA is not a model of drafting because it obscures the origin and source of the fetal

rights being protected. Instead of forthrightly stating

that the HLA itself is granting personhood status, it

obliquely “recognize[s] and support[s]” fetal rights on

the apparent (and controvertible) assumption that

such rights have always existed as natural rights.73

Still, this HLA is quite clear that an “unborn life” has

rights under state law, which can be protected by Alabama’s primary police power to secure and protect

Tenn. Const., Art. 1, Sec. 36 (approved November 4, 2014).

Ala. Const., Amdt. 930 (approved November 6, 2018).

W.Va. Const., Art. 6, Sec. 57 (approved November 6, 2018).

La. Const., Art. 1, Sec. 20.1 (approved November 3, 2020).

Ala. Const., Amdt. 930, Sec. (a) and (b).

The Alabama HLA also fails to clarify whether the fetus

has independent standing to enforce these rights and who could

sue on behalf of the fetus.

individual rights. Not surprisingly, Alabama has now

exercised that police power to enact the stringent Alabama Human Life Protection Act.74

Significantly, none of these fetal “personhood” issues are raised in this case because Mississippi has not

passed a Human Life Amendment or otherwise created

fetal personhood or citizenship rights. Consequently,

Petitioners have not and cannot argue that the fetus in

Mississippi has independent liberty rights in conflict

with those of the pregnant woman. The abortion right

therefore qualifies as a provisional liberty right that

Mississippi must overcome to justify its Gestational

Age Act as constitutional.75

C. The States in Roe and Casey Were Asserting Their Weaker Police Power to

Promote Fetal Life, Not Their Stronger

Police Power to Protect Fetal Rights.

The lack of fetal personhood or citizenship not only

justifies finding that abortion is a provisional liberty

right; it is also the determining factor on whether a

state is exercising its weaker secondary police power

or stronger primary police power. The Texas criminal

statute at issue in Roe sought to prevent abortions

Alabama Act 2019-189 (enacted May 15, 2019), codified at

Ala. Code, Title 26, Sections 26-23H-1 to 26-23H-8. Enforcement

of the statute was preliminarily enjoined on October 29, 2019.

Robinson v. Marshall, Civil Action No. 2:19cv365-MHT, M.D. Ala.

(filed May 24, 2019).

Miss. Code Ann. § 41-41-191.

from being “procure[d]” or “produced.”76 The only reference to the fetus itself was in the definition of abortion

as meaning “that the life of the fetus or embryo shall

be destroyed in the woman’s womb or that a premature

birth thereof be caused.”77

In stark contrast, the one time that the Texas statute referred to an “unborn child” was in Article 1195

(titled “Destroying unborn child”), which banned the

destruction of “the vitality or life in a child in a state of

being born and before actual birth. . . .”78 Thus, the

statutory scheme at issue in Roe itself considered the

“fetus or embryo” and the “unborn child” to be legally

distinct. Significantly, Article 1195 was the one provision in the Texas abortion statute not challenged in

Roe,79 suggesting that both sides recognized that the

fetus became a person with rights once childbirth began – but not before.

If Texas was not protecting fetal rights in Roe,

what state interests were considered? The first was

suggested by the Court itself and quickly dismissed:

“Victorian social concern to discourage illicit sexual

conduct.”80 Such moral disapproval by a bare majority

was not even advanced by Texas as a justification in

Roe, and any doubt was removed in Casey when it

410 U.S. at 117-118 n.1 (citing Tex. Pen. Code, Articles

1191-1194, 1196 (1911)).

Tex. Pen. Code, Art. 1191.

Roe, 410 U.S. at 118 n.1 (citing Article 1195).

Id.

410 U.S. at 148.

re-affirmed that its “obligation is to define the liberty

of all, not to mandate our own moral code.”81 Even if

moral disapproval is deemed a proper state purpose, it

would merely be an exercise of the state’s weaker secondary police power.

The second proffered justification was to protect

pregnant women from a potentially hazardous medical

procedure, and here Texas had “a legitimate interest in

seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure

maximum safety for the patient.”82 Protecting this interest would be a proper exercise of the primary police

power to secure the woman’s right to personal health

and safety. What would not be proper are medical

safety laws that are no longer needed to secure or protect this right,83 but which instead were enacted as a

pretext to deny abortion as a woman’s provisional liberty right. Even if a law were adopted only to discourage, but not deny, a woman’s right to a particular

medical procedure, such a law would merely be an exercise of the state’s secondary promotional police

power.

The final rationale was “protecting prenatal life,”

which Roe recognized as an “important and legitimate

interest in protecting the potentiality of human life,”84

and which Casey stressed was “a substantial state

505 U.S. at 850.

410 U.S. at 150.

Id. at 149.

Id. at 162.

interest in potential life throughout pregnancy.”85 Both

decisions accepted the protection of fetal life as a “compelling” state interest at the point of viability.86 Assessing the strength of this state interest in fetal life

prior to viability is why abortion has been so difficult

to resolve as a legal matter. It is also why so many opponents of Roe and Casey believe abortion is qualitatively different from Meyer-type personal autonomy

cases. As Chief Justice Rehnquist framed the argument in Casey, “[u]nlike marriage, procreation, and

contraception, abortion ‘involves the purposeful termination of a potential life.’ . . . The abortion decision

must therefore ‘be recognized as sui generis, different

in kind from the others that the Court has protected

under the rubric of personal or family privacy and autonomy’.”87

This is the most acute criticism of Roe and Casey,

but it still misses a key point: No matter how strong

the state interest is in protecting fetal life prior to viability, if there are no fetal rights to secure, the state is

only exercising its secondary police power to promote

an interest ostensibly favored by a political majority in

a given state. Consequently, it does not matter whether

this pre-viability state interest is labelled “legitimate,”

“substantial,” or even “compelling.” If the state in question has not recognized the fetus as a “person” or citizen under state law, with rights of its own to protect,

505 U.S. at 876.

Roe, 410 U.S. at 163; Casey, 505 U.S. at 846, 870.

505 U.S. at 952 (Rehnquist, C.J., dissenting; citations

omitted). See also Pet. Br. at 16-17.

an anti-abortion statute must be scrutinized as an exercise of the weaker secondary police power.

D. The Undue Burden Test and Viability

Rule Are Good Faith Constitutional

Constructions of Heightened Scrutiny

for States That Do Not Recognize Fetal

Rights.

Even though Texas and Pennsylvania were promoting fetal life rather than securing fetal rights, it

could still be argued that their abortion statutes

should have been scrutinized under rational-basis review, as Chief Justice Rehnquist did in his Casey dissent.88 In doing so, however, he also acknowledged that

“[a] woman’s interest in having an abortion is a form

of liberty protected by the Due Process Clause . . . ,”89

effectively conceding that abortion is what this amicus

brief is now calling a “provisional liberty right.”

Petitioners reject the “undue burden” standard as

“unworkable” because there is “no objective way to decide whether a burden is ‘undue’,” thereby supposedly

preventing “administrability, clarity, or predictability.”90 Petitioners apparently want a standard that is

essentially mechanical in application, reducing the art

of judging to a paint-by-numbers canvas. Such an approach would eliminate all types of “heightened scrutiny,” so that the only alternatives are rational-basis

Id. at 966 (Rehnquist, C.J., dissenting).

Id.

Pet. Br. at 19.

review, in which it is eminently predictable that the

government will win; and strict scrutiny, where it is

equally predictable that the government will lose.

Petitioners’ claim is a bridge too far. As the controlling opinion in Casey explained, a regulatory burden becomes “undue” when it “has the purpose or effect

of placing a substantial obstacle in the path of a

woman seeking an abortion” prior to viability.91 This is

another way of saying that the stated purpose of the

regulation is pretextual and that its unstated but evident purpose is to prevent the exercise of the right.

Heightened scrutiny is simply a way of exposing the

pretext where the regulation is actually a silent ban.

Still, Petitioners claim that abortion is somehow

different because heightened scrutiny fails to account

“for the [government] interests at stake” and “broadly

diminishes a State’s pre-viability interests. . . .”92 Mississippi, however, plainly is not trying to accommodate

its stated interests with those of the pregnant woman

wishing to exercise her provisional liberty right. It is

imposing an outright ban after 15 weeks. Petitioners

want a ruling that abortions after 15 weeks are per se

wrongful conduct. The undue burden standard recognizes that pre-viable abortions are rightful conduct

that can only be regulated to serve a state interest as

long as the woman can “make the ultimate decision.”93

Under Roe and Casey, abortions only become wrongful

505 U.S. at 877.

Pet. Br. at 20-21.

505 U.S. at 877.

conduct at viability (except where the mother’s life or

health is at risk). This is not a scrutiny issue, but

whether abortion is actually a provisional liberty interest prior to viability, which goes to the legitimacy of

the viability rule itself.

To determine its legitimacy, it is important to recall

that the viability rule, like all levels of scrutiny and the

scope of the police power itself, are constitutional constructions rather than constitutional interpretations.

They are not referenced in any constitutional text, but

instead have been developed as juridical tools to give

legal effect to the meaning of the text.94 As such, the

viability rule should be retained unless Petitioners can

show that it was a bad-faith exercise of constitutional

construction, i.e., not faithful to the meaning of the text

(“liberty”) or its function or purpose.95

The viability rule was first adopted in Roe because

“because the fetus . . . has the capability of meaningful

life outside the mother’s womb.”96 Casey expanded on

this rationale by describing viability as “the time at

which there is a realistic possibility of maintaining and

nourishing a life outside the womb, so that the independent existence of the second life can in reason and

all fairness be the object of state protection that now

See generally Randy E. Barnett and Evan D. Bernick, The

Letter and The Spirit: A Unified Theory of Originalism, 107 Geo.

L. J. 1, 10-13 (2018) (distinguishing constitutional interpretation

from constitutional construction).

Id. at 33-37 (distinguishing good faith construction from

bad faith construction).

410 U.S. at 163.

overrides the rights of the woman.”97 Roe and Casey

treated viability as the point at which the state interest in protecting fetal life becomes “compelling” enough

to “override” the woman’s provisional liberty right, except where the mother’s life or health is endangered.

But the more telling way to characterize viability is

that since the fetus is now capable of “independent existence,” the fetus should be treated as a “person” with

its own right to life that the state can now protect with

its primary police power.

This is why Article 1195 of the Texas Penal Code

in 1973 was justified in calling the fetus an “unborn

child” at parturition: there is no logical or ethical difference between a viable fetus and a newborn, except

when the mother’s life and health are threatened. Only

then would a state’s exercise of its primary police

power to secure the fetus’s post-viability right to life

fail to “override” the woman’s countervailing rights to

life and health. By recognizing that the viable fetus

should be treated the same as a “person” under state

law, Roe properly instituted, and Casey properly upheld, the viability rule as a good faith constitutional

construction.

505 U.S. at 870 (italics added).

E. Roe and Casey Should Be Re-Affirmed

Because They Were Correctly Decided

When Limited to Their Facts.

Stare decisis is about “when to overrule erroneous

precedent.”98 Stare decisis was a contested matter in

Casey because aspects of Roe were found erroneous,

causing the Court to reject Roe’s trimester framework

and adopt a new standard of scrutiny.99 Here the application of stare decisis is straightforward because –

given that neither case involved statutes to secure or

protect fetal rights – Casey’s modification of Roe was

correct on its merits. As adapted by Casey, the “essential holding” in Roe,100 was a proper application of

heightened scrutiny in which both of the following are

true: (1) before viability the state’s exercise of its secondary police power to promote fetal life failed to outweigh the woman’s provisional liberty right, which

could still be regulated in a way that preserved this

right; while (2) after viability the state’s exercise of its

primary police power to protect fetal rights was sufficient to overcome the women’s provisional liberty

right, except where her life or health was at stake.

Since Roe and Casey are not erroneous precedent, “the

very concept of the rule of law” requires that these

precedents be respected.101

Ramos v. Louisiana, 140 S. Ct. 1390, 1412 (2020) (Kavanaugh, J., concurring).

505 U.S. at 872-873.

100

Id. at 846.

101

Id. at 854.

III. The Decision Below Should Be Affirmed

Because Mississippi Does Not Recognize

Fetal Rights. Its Position Is Therefore Governed and Rejected by Roe and Casey.

Unlike Alabama, Mississippi does not recognize

the fetus as human life with its own enforceable rights.

To the contrary, Mississippi has a history of rejecting

fetal personhood. Following approval by the Mississippi Legislature, a proposed constitutional amendment, Initiative 26, was placed on the 2011 general

election ballot. This measure would have amended Article III of the Mississippi Constitution to define the

words “person” or “person” to “include every human being from the moment of fertilization, cloning, or functional equivalent thereof.” Instead, it was voted down

by a 57.63% to 42.36% margin.102

Similarly, the Mississippi Gestational Age Act

does not secure or protect any rights granted to fetal

life under Mississippi law. The three goals identified in

the Act may well be “valid state objectives,”103 but only

one – “protecting the health of women” – is an exercise

of the state’s primary police power. The means chosen

to exercise this power, however, is overbroad because it

is not limited to “protecting the health of women.” The

Act bans elective abortions after 15 weeks, but it does

See https://ballotpedia.org/Mississippi_Life_Begins_at_the_

Moment_of_Fertilization_Amendment,_Initiative_26_ (2011) (last

accessed September 13, 2021).

103

Pet. Br. at 36.

102

not make a legislative finding that this medical procedure is itself an unsafe medical practice. It only asserts

that there are “significant physical and psychological

risks to the maternal patient” inherent in abortion

that “increase with gestational age.” App. 67a. If abortions can be performed safely after 15 weeks despite

these increased risks, then regulations to reduce such

risks may be valid, but a 15-week ban to remove all

risk only serves as a pretext to prevent women from

making “the ultimate decision.”

Since Roe, as modified by Casey, should be retained as good law, and Mississippi does not recognize

fetal rights, the Mississippi Gestational Age Act is governed by both the undue burden test and the viability

rule. An outright ban prior to viability is necessarily an

undue burden and thus fails to satisfy the heighten

scrutiny required to deny or restrict abortion as a provisional liberty right. The Act is therefore unconstitutional, and the decision below must be affirmed.

---------------------------------♦---------------------------------

CONCLUSION

The Mississippi Gestational Age Act is unconstitutional under Roe and Casey, which should be reaffirmed on stare decisis grounds but limited to states

where fetal rights are not recognized. Accordingly, the

decision of the Fifth Circuit Court of Appeals should be

affirmed.

Respectfully submitted,

STEPHEN C. LECKAR

Counsel of Record

KALBIAN HAGERTY LLP

888 17th St. NW, Twelfth Floor

Washington, DC 20006

sleckar@kalbianhagerty.com

(202) 223-5600

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.