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 20, 2021
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No. 19-1392
IN THE
Supreme Court of the United States
d
THOMAS E. DOBBS , M.D., M.P.H.,
STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH , ET AL .,
Petitioners,
—v.—
JACKSON WOMEN ’S HEALTH ORGANIZATION , ET AL .,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF AMICI CURIAE
THE AMERICAN CIVIL LIBERTIES UNION AND THE
AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI
IN SUPPORT OF RESPONDENTS
David D. Cole
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, N.W.
Washington, DC 20005
Jarvis Dortch
Joshua F. Tom
AMERICAN CIVIL LIBERTIES
UNION OF MISSISSIPPI
FOUNDATION , INC .
P.O. Box 2242
Jackson, MS 39225
Brigitte Amiri
Counsel of Record
Whitney L. White
Jennifer Dalven
Louise Melling
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2633
bamiri@aclu.org
TABLE OF CONTENTS
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 4
I.
THE CONSTITUTIONAL RIGHT TO
DECIDE WHETHER TO HAVE AN
ABORTION IS FIRMLY ROOTED IN THE
CONSTITUTION AND THIS COURT’S
JURISPRUDENCE. ......................................... 4
A. The Right to Abortion Rests Firmly on
the Liberty Right to Make Fundamental
Decisions About Family and Personal
Life. ............................................................ 5
B. The Right to Abortion Rests Firmly on
the Fourteenth Amendment Right to
Bodily Integrity. ...................................... 14
II.
ABORTION IS NOT CATEGORICALLY
DIFFERENT FROM THE LIBERTY,
PRIVACY, AND BODILY INTEGRITY
RIGHTS THE COURT HAS LONG
RECOGNIZED AS PROTECTED BY THE
FOURTEENTH AMENDMENT. .................. 17
III.
THE FACT THAT COURTS HAVE HAD TO
ENFORCE THE CONSTITUTIONAL RIGHT
TO DECIDE WHETHER TO HAVE AN
ABORTION DOES NOT JUSTIFY
OVERTURNING ROE AND CASEY. ........... 22
CONCLUSION.......................................................... 27
i
TABLE OF AUTHORITIES
CASES
Brown v. Board of Education (Brown I),
347 U.S. 483 (1954)............................................ 3, 24
Brown v. Board of Education (Brown II),
349 U.S. 294 (1955).......................................... 24, 27
Burton v. State,
49 So. 3d 263 (Fl. Dist. Ct. App. 2010).................. 20
Canedy v. Boardman,
16 F.3d 183 (7th Cir. 1994) ................................... 16
Caniglia v. Strom,
141 S. Ct. 1596 (2021) ........................................... 18
Carey v. Population Services International,
431 U.S. 678 (1977).................................................. 7
City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1982), overruled in
part on other grounds by Planned Parenthood
of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992).................................................. 9
Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974)................................................ 13
Cooper v. Aaron,
358 U.S. 1 (1958) ................................................... 25
District of Columbia v. Heller,
554 U.S. 570 (2008)............................................ 3, 23
Doe ex rel. Doe v. Hunter,
796 F. App’x 532 (10th Cir. 2019), cert. denied
141 S. Ct. 367 (2020) ............................................. 21
Eisenstadt v. Baird,
405 U.S. 438 (1971).................................................. 7
ii
Griffin v. County School Board,
377 U.S. 218 (1964)................................................ 25
Griswold v. Connecticut,
381 U.S. 479 (1965)........................................ 7, 8, 15
Guertin v. Michigan,
912 F.3d 907 (6th Cir. 2019) ................................. 15
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................... 18
In re A.C.,
573 A.2d 1235 (D.C. 1990) ..................................... 20
Kallstrom v. City of Columbus,
136 F.3d 1055 (6th Cir. 1998) ............................... 15
Lawrence v. Texas,
539 U.S. 558 (2003)................................................ 12
Lee v. Macon County Board of Education,
267 F. Supp. 458 (M.D. Ala. 1967), aff’d,
Wallace v. United States, 389 U.S. 215 (1967) ..... 25
Little Rock Family Planning Services v. Jegley,
No. 4:21-cv-00453, 2021 WL 3073849
(E.D. Ark. July 20, 2021), appeal docketed
(8th Cir. Aug. 19, 2021) ......................................... 11
Loving v. Virginia,
388 U.S. 1 (1967) ..................................................... 6
M.L.B. v. S.L.J.,
519 U.S. 102 (1996)................................................ 13
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................. 23
Meyer v. Nebraska,
262 U.S. 390 (1923)........................................ 5, 6, 13
iii
Miranda v. Arizona,
384 U.S. 436 (1966)................................................ 18
Moore v. City of East Cleveland,
431 U.S. 494 (1977)................................................ 13
Obergefell v. Hodges,
576 U.S. 644 (2015).......................................... 12, 13
Pierce v. Society of Sisters of the Holy Names of
Jesus & Mary,
268 U.S. 510 (1925).................................................. 5
Planned Parenthood of Southeastern Pennsylvania
v. Casey,
505 U.S. 833 (1992)......................................... passim
Rochin v. California,
342 U.S. 165 (1952)................................................ 14
Roe v. Wade,
410 U.S. 113 (1973)......................................... passim
Rogers v. City of Little Rock,
152 F.3d 790 (8th Cir. 1998) ................................ 16
Scales v. United States,
367 U.S. 203 (1961)................................................ 18
Schuette v. Coalition to Defend Affirmative Action,
Integration & Immigrant Rights & Fight for
Equality by Any Means Necessary (BAMN),
572 U.S. 291 (2014)................................................ 23
SisterSong Women of Color Reproductive Justice
Collective v. Kemp,
472 F. Supp. 3d 1297 (N.D. Ga. 2020), appeal
docketed (11th Cir. Aug. 11, 2020) ........................ 21
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942).................................. 6, 7, 13, 14
iv
Tandon v. Newsom,
141 S. Ct. 1294 (2021) (per curiam) ...................... 18
Thornburgh v. American College of Obstetricians
& Gynecologists, 476 U.S. 747 (1986),
overruled in part on other grounds by Planned
Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833 (1992) ...................... 9, 10, 27
Troxel v. Granville, 530 U.S. 57 (2000) .................... 13
Union Pacific Railroad Co. v. Botsford,
141 U.S. 250 (1891)................................................ 14
United States v. U.S. District Court,
407 U.S. 297 (1972)................................................ 18
Washington v. Harper,
494 U.S. 210 (1990)................................................ 15
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943)...................................... 3, 23, 26
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016). .......................................... 11
Wudtke v. Davis,
128 F.3d 1057 (7th Cir. 1997) ............................... 16
Zablocki v. Redhail,
434 U.S. 374 (1978)................................................ 13
STATUTES & ENACTED BILLS
Kan. Stat. Ann. § 65-6732(a)(1) ................................ 19
Kentucky Human Life Protection Act, H.B. 148,
§ 1(1)(c), 2019 Ky. Acts 884 ................................... 20
La. Stat. Ann. § 40:161(I)(3) ..................................... 20
S.B. 1457, 2021 Ariz. Sess. Laws ch. 486, § 1
(to be codified at Ariz. Rev. Stat. § 1-219(A)) ....... 20
v
LEGISLATIVE & EXECUTIVE MATERIALS
Declaration of Constitutional Principles (“Southern
Manifesto on Integration”), 102 Cong. Rec.
4459–60 (Mar. 12, 1956) ........................................ 25
Exec. Order 10,730, 22 Fed. Reg. 7,628
(Sept. 24, 1957) ...................................................... 25
Exec. Order 11,111, 28 Fed. Reg. 5,709
(June 11, 1963) ...................................................... 25
OTHER AUTHORITIES
Donna L. Hoyert, Centers for Disease Control,
National Center for Health Statistics, Maternal
Mortality Rates in the United States (2019),
https://www.cdc.gov/nchs/data/hestat/maternalmortality-2021/E-Stat-Maternal-MortalityRates-H.pdf ............................................................ 12
Equal Justice Initiative, “Massive Resistance,”
in Segregation in America (2018),
https://segregationinamerica.eji.org/report.pdf .... 26
Eric Ruben & Joseph Blocher, From Theory to
Doctrine: An Empirical Analysis of the Right to
Keep and Bear Arms After Heller, 67 Duke L.J.
1433 (2018)............................................................. 23
Jack Bass, Unlikely Heroes: The Dramatic Story of
the Southern Judges of the Fifth Circuit who
Translated the Supreme Court's Brown Decision
Into a Revolution for Equality (1981) ................... 25
Lila Hassan & Dan Glaun, COVID-19 and the
Most Litigated Presidential Election in Recent
U.S. History, PBS: Frontline (Oct. 28, 2020),
https://www.pbs.org/wgbh/frontline/article/
covid-19-most-litigated-presidential-electionin-recent-us-history/ .............................................. 24
vi
PBS NewsHour/NPR, NPR/PBS NewsHour/
Marist National Poll: May 31–June 4, 2019,
https://maristpoll.marist.edu/wpcontent/uploads/2019/06/NPR_PBSNewsHour_Marist-Poll_USA-NOS-and-Tableson-Abortion_1906051428_FINAL.pdf#page=1 ..... 26
vii
STATEMENT OF INTEREST 1
The American Civil Liberties Union (“ACLU”)
is a nationwide, non-profit, non-partisan organization
with nearly two million members and supporters
dedicated to the principles of liberty and equality
embodied in the Constitution and the nation’s civil
rights laws. The ACLU has long been committed to
protecting the right of individuals to make their own
decisions to shape their lives and intimate
relationships, including the right to decide whether to
carry a pregnancy to term, and has a long history of
furthering gender and racial justice. The ACLU has
participated in almost every critical case concerning
reproductive rights to reach the Supreme Court. The
ACLU of Mississippi is a statewide affiliate of the
national ACLU. The ACLU represents clients in
several states in constitutional challenges to laws that,
like the Mississippi statute at issue here, would ban
abortion before viability.
SUMMARY OF ARGUMENT
Amici support Respondents’ arguments urging
this Court to affirm the decision below and to reject
Petitioners’ invitation to overturn Roe v. Wade, 410
U.S. 113 (1973), and Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992). Amici write to address three arguments that
Petitioners erroneously claim justify overturning the
right to decide to have an abortion.
1 All parties have consented to the filing of this brief. No counsel
for a party authored this brief in whole or in part, and no person
other than amici or their counsel made a monetary contribution
to the preparation or the submission of this brief.
1
First, Petitioners argue that the right to decide
to have an abortion is untethered to the Constitution
and this Court’s privacy and liberty jurisprudence. Pet.
Br. 2, 15–16. To the contrary, the right is firmly rooted
in nearly one hundred years of this Court’s precedents
“recogniz[ing] that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does
exist under the Constitution.” Roe, 410 U.S. at 152
(collecting cases). As the Court explained in Casey,
“[i]t is a promise of the Constitution that there is a
realm of personal liberty which the government may
not enter.” 505 U.S. at 847. The right to decide to have
an abortion is firmly grounded in, and is an
indispensable part of, the liberty to make
fundamental decisions about the most intimate
aspects of one’s own life and body. These include the
rights to decide to use contraceptives, to decide
whether and whom to marry, to decide whether to
have children and how to raise them, and to bodily
integrity.
Second, Petitioners argue that the state
interest in potential life makes the decision to have an
abortion categorically different from all other liberty
rights, and warrants rejecting any such right at all.
Pet. Br. 16–17, 28. But the existence vel non of a
constitutional right is not determined by the State’s
interests in regulating it. Virtually every
constitutional right, from First Amendment rights to
speech and religion, to Fourth Amendment rights of
privacy, coexist with often very significant
countervailing state interests. The mere presence of a
state interest, no matter how strong, does not justify
a refusal to even recognize the constitutional right in
the first place. Rather, courts weigh the constitutional
right at stake against the asserted state interest,
2
guided by appropriate constitutional tests. That is
precisely what this Court has done in the abortion
context for half a century: On the one hand the Court
has recognized that a woman has a fundamental
constitutional right to decide to have an abortion, and,
on the other hand, it has recognized that the State has
important interests in regulating abortion within
certain limits. In particular, it has consistently held
that prior to viability, a woman must have the right to
decide to terminate her pregnancy, and that after
viability, the State may prohibit abortion absent a
threat to her life or health. If this Court were to accept
Petitioners’ argument that the state interest in
potential life negates altogether a woman’s right to
decide to have an abortion, the same argument could
be invoked to restrict contraception use or to justify
state intrusions in myriad other pregnancy decisions.
Third, Petitioners urge this Court to overrule
Roe and Casey to avoid the need for continuing
litigation over the contours of the abortion right. But
even putting aside that the viability line is justified
and administrable, at bottom, Petitioners’ argument
is nothing short of a suggestion that this Court
abdicate its critical role in the protection of
constitutional rights. If the existence of extensive
litigation and heated public debate were enough to
justify abandoning a constitutional right, countless
rights—including the right to be free from racial
segregation recognized in Brown v. Board of
Education, 347 U.S. 483 (1954), the right to bear arms
recognized in District of Columbia v. Heller, 554 U.S.
570 (2008), and the freedoms of conscience recognized
in West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943)—would fall into the same
category, and this Court would have long since left
3
protection of those rights to the political process. Just
as was true after the Court decided Brown, the Court’s
duty to protect individual rights is at its zenith when
state actors attempt to frustrate constitutional
protections.
ARGUMENT
I.
THE CONSTITUTIONAL RIGHT TO
DECIDE WHETHER TO HAVE AN
ABORTION IS FIRMLY ROOTED IN THE
CONSTITUTION AND THIS COURT’S
JURISPRUDENCE.
In urging the Court to overturn fifty years of
precedent recognizing the right to decide to have an
abortion, Petitioners argue that “Roe broke from prior
cases by invoking a general ‘right of privacy’
unmoored from the Constitution.” Pet. Br. 2; see also
Pet. Br. 16. In fact, the opposite is true: The right to
have an abortion recognized in Roe v. Wade, 410 U.S.
113 (1973), and reaffirmed in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), is deeply rooted in this Court’s jurisprudence
recognizing that the Constitution protects privacy,
bodily autonomy, and liberty rights. Together, these
interconnected strands of precedent have long
protected a woman’s right to make fundamental
decisions about her private life, her family, and her
body. 2 These rights include the rights to decide
whether and whom to marry, whether to use
2 Although amici refer to “a woman’s” constitutional rights and
pregnancy decisions, amici recognize that people of all gender
identities, including transgender men, non-binary individuals,
and gender-diverse individuals, may also become pregnant and
seek abortion services, and thus their right to terminate a
pregnancy is also implicated by Petitioners’ arguments.
4
contraceptives, whether to have children and how to
raise them, as well as the right to bodily integrity.
This Court has repeatedly recognized that the right to
decide whether to continue a pregnancy flows directly
from these precedents. No less than these other rights,
the right to decide to have an abortion is integral to
the Constitution’s promise that we all have a
fundamental right to make decisions about our lives,
our families, and our bodies.
A.
The Right to Abortion Rests Firmly
on the Liberty Right to Make
Fundamental
Decisions
About
Family and Personal Life.
Roe and Casey rest firmly on decades of this
Court’s jurisprudence protecting the rights to
personal and intimate decision-making necessary to
chart one’s own life course free from government
dictates, especially in matters relating to one’s family.
And decisions since Roe and Casey have only cemented
the understanding that the Fourteenth Amendment
protects these rights, and that the right to abortion
falls squarely within this Court’s longstanding
jurisprudence.
Beginning nearly a century ago, the Court
recognized that the Fourteenth Amendment protects
the right of parents to direct the upbringing of their
children against unwarranted government intrusion.
Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923)
(invalidating law preventing instruction in foreign
language as infringing on parents’ rights to direct
upbringing of their children); Pierce v. Soc’y of Sisters
of the Holy Names of Jesus & Mary, 268 U.S. 510, 534
(1925) (invalidating law requiring attendance at
public school because it conflicted with the “liberty of
5
parents and guardians to direct the upbringing and
education of children”). The liberty right, this Court
explained, includes the rights “to marry, establish a
home and bring up children.” Meyer, 262 U.S. at 399
(collecting cases).
Two decades later, the Court reaffirmed that
“basic liberty” includes “marriage and procreation.”
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535,
541 (1942). In Skinner, the Court struck down a law
that permitted courts to order forced sterilization of
persons convicted of certain crimes. Id. at 536. The
Court’s decision rested on equal protection grounds,
but it recognized that forcibly sterilizing people would
“forever deprive” them of a “basic liberty,” namely “the
right to have offspring.” Id. at 536, 541. The Court
recognized that the right to “[m]arriage and
procreation are fundamental” and are “one of the basic
civil rights of man.” Id. at 541.
In Loving v. Virginia, this Court struck down a
ban on interracial marriage under the Equal
Protection and Due Process Clauses, and in doing so
rejected the argument that the State’s “powers to
regulate marriage are unlimited notwithstanding the
commands of the Fourteenth Amendment.” 388 U.S. 1,
7 (1967) (citing Meyer, 262 U.S. 390; Skinner, 316 U.S.
535). The Court again noted that marriage is “one of
the ‘basic civil rights of man,’” and explained that “the
freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly
pursuit of happiness by free men.” Id. at 12 (quoting
Skinner, 316 U.S. at 541).
Around the same time, this Court invalidated a
ban on contraceptive use by married persons, holding
that the right of married couples to use contraception
6
lies “within the zone of privacy created by several
fundamental constitutional guarantees,” including
the right to privacy. Griswold v. Connecticut, 381 U.S.
479, 485 (1965). In so holding, the Court reaffirmed
Meyer and Pierce, and pointed to a long line of cases,
including Skinner, that “bear witness that the right of
privacy which presses for recognition here is a
legitimate one.” Id.
Shortly thereafter, the Court recognized that
the privacy right to use contraception is not limited to
married couples, but extends equally to unmarried
individuals. While it acknowledged that Griswold
dealt with this right in the context of the “marital
relationship,” it reasoned that “[i]f the right to privacy
means anything, it is the right of the individual,
married or single, to be free from unwarranted
governmental
intrusion
into
matters
so
fundamentally affecting a person as the decision
whether to bear or beget a child.” Eisenstadt v. Baird,
405 U.S. 438, 453 (1971) (emphasis added) (citing,
inter alia, Skinner, 316 U.S. 535). The Court
continued: “The makers of our Constitution . . . sought
to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred,
as against the government, the right to be let alone—
the most comprehensive of rights and the right most
valued by civilized man.” Id. at 453 n.10 (internal
quotations and citation omitted). 3
3 Given Eisenstadt, Petitioners’ attempt to suggest that the right
to use contraception is founded solely on the marital relationship,
Pet. Br. 16, plainly fails. See also Carey v. Population Servs. Int’l,
431 U.S. 678, 687 (1977) (holding that “Griswold may no longer
be read as holding only that a State may not prohibit a married
couple’s use of contraceptives”). And their attempt to argue that
the right first recognized in Griswold solely “vindicated the
7
One year after the Court’s decision in
Eisenstadt, the Court decided Roe v. Wade. In holding
that the Constitution protects the right to decide to
have an abortion, the Court reviewed its long line of
liberty and privacy cases, including Meyer, Pierce,
Skinner, Loving, Griswold, and Eisenstadt, and held
that the Court “has recognized that a right of personal
privacy, or a guarantee of certain areas or zones of
privacy, does exist under the Constitution.” Roe, 410
U.S. at 152. These cases “make it clear” that the right
to privacy extends to activities relating to marriage,
procreation, contraception, family relationships, and
child rearing and education. Id. at 152–53. The Court
therefore held that the Fourteenth Amendment’s
guarantee of personal liberty “is broad enough to
encompass a woman’s decision whether or not to
terminate her pregnancy.” Id. at 153. In so holding,
the Court recognized the impact of the abortion
decision on one’s liberty:
The detriment that the State would
impose upon the pregnant woman by
denying this choice altogether is
apparent. Specific and direct harm
medically diagnosable even in early
pregnancy may be involved. Maternity,
or additional offspring, may force upon
the woman a distressful life and future.
Psychological harm may be imminent.
Mental and physical health may be taxed
by child care. There is also the distress,
textually and historically grounded Fourth Amendment
protection against government invasion of the home,” Pet. Br. 15,
similarly ignore that, in recognizing the right to use
contraception, the Court explicitly relied on the Court’s liberty
jurisprudence, see Griswold, 381 U.S. at 482–83.
8
for all concerned, associated with the
unwanted child, and there is the problem
of bringing a child into a family already
unable, psychologically and otherwise, to
care for it.
Id. at 153. In short, Roe followed directly from the
decisions that preceded it, as all carve out an area of
personal privacy within which individuals must be
free to make their own decisions, and not have their
life choices dictated by the State.
The Court’s decisions following Roe confirm
that the decision is an integral part of the Court’s
privacy and liberty jurisprudence. In the two decades
following Roe, the Court repeatedly reaffirmed its
holding. For example, in City of Akron v. Akron Center
for Reproductive Health, Inc., this Court held there
are “especially compelling reasons” for reaffirming
Roe, including that “[s]ince Roe was decided . . . [t]he
Court repeatedly and consistently has accepted and
applied the basic principle that a woman has a
fundamental right to make the highly personal choice
whether or not to terminate her pregnancy.” 462 U.S.
416, 419 n.1 (1982) (collecting cases). In Thornburgh
v. American College of Obstetricians and Gynecologists,
the Court held that “[o]ur cases long have recognized
that the Constitution embodies a promise that a
certain private sphere of individual liberty will be
kept largely beyond the reach of government.” 476 U.S.
747, 772 (1986) (citing, inter alia, Eisenstadt,
Griswold, Pierce, and Meyer). As the Court explained,
“[f]ew decisions are more personal and intimate, more
properly private, or more basic to individual dignity
9
and autonomy than a woman’s decision . . . whether
to end her pregnancy.” Id. 4
Twenty years after Roe, this Court again
reaffirmed its central premise, against an express
invitation to overrule it. In Planned Parenthood of
Southeastern Pennsylvania v. Casey, the Court
explained that:
It is a promise of the Constitution that
there is a realm of personal liberty which
the government may not enter. . . . It is
settled now, as it was when the Court
heard arguments in Roe v. Wade, that
the Constitution places limits on the
State’s right to interfere with a person’s
most basic decisions about family and
parenthood.
505 U.S. at 847–49. The Court recognized that the
right to decide to have an abortion implicates the
liberty to make “basic decisions about family and
parenthood,” id. at 849, in the same way as the rights
the Court has recognized regarding marriage,
procreation, contraception and childrearing: “These
matters, involving the most intimate and personal
choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth
Amendment.” Id. at 851.
The Casey Court recognized that the right to
decide whether to continue a pregnancy was not only
4 Although Akron and Thornburgh were overruled in part on
other grounds by Casey, 505 U.S. at 882 (plurality), that decision
also reaffirmed “the central premise of those cases,” which was
“an unbroken commitment by this Court to the essential holding
of Roe,” id. at 870.
10
similar in character to other liberty rights, but also
that these intimate decisions are interconnected and
foundational for other life decisions. Like the right to
use contraception, the right to decide whether to have
an abortion is critical to allow a woman to make her
own decisions about her future and her role in society:
The State may not “insist . . . upon its own vision of
the woman’s role, however dominant that vision has
been in the course of our history and our culture.” Id.
at 852. Moreover, “[t]he ability of women to
participate equally in the economic and social life of
the Nation has been facilitated by their ability to
control their reproductive lives.” Id. at 856. The Court
also recognized that a woman “who carries a child to
full term is subject to anxieties, to physical constraints,
to pain that only she must bear.” Id. at 852; see also
Roe, 410 U.S. at 153. 5
5 “Nationwide, childbirth is 14 times more likely than abortion to
result in death.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2315 (2016). The United States’ alarmingly high maternal
mortality rate, especially for Black women, reinforces that the
liberty right to make one’s own decision about whether to
continue a pregnancy implicates not only an individual’s interest
in deciding to have a child, but also the liberty interest in
protecting one’s health. See Pet. Cert. App. 46a n.22 (district
court decision recognizing that Mississippi ranks as the state
having the most medical challenges for women, infants, and
children); Little Rock Family Planning Servs. v. Jegley, No. 4:21cv-00453, 2021 WL 3073849, at *4 (E.D. Ark. July 20, 2021) (in
preliminarily enjoining a ban on abortion, recognizing the impact
on Black women given the disproportionately high maternal
mortality rate in Arkansas), appeal docketed (8th Cir. Aug. 19,
2021); Donna L. Hoyert, Ctrs. for Disease Control, Nat’l Ctr. for
Health Statistics, Maternal Mortality Rates in the United States
(2019),
https://www.cdc.gov/nchs/data/hestat/maternalmortality-2021/E-Stat-Maternal-Mortality-Rates-H.pdf (in 2019,
the maternal mortality rate for Black women was 2.5 times the
rate for white women).
11
Since Casey, the Court has repeatedly
reaffirmed its liberty and privacy jurisprudence and
has continued to recognize that these rights are
inextricably interrelated. For example, in holding
unconstitutional a law that criminalized private
sexual intimacy between consenting adults of the
same sex, the Court looked to Meyer, Griswold,
Eisenstadt, Roe, and Casey. Lawrence v. Texas, 539
U.S. 558, 564 (2003). In its words, “[t]he Casey
decision again confirmed that our laws and tradition
afford constitutional protection to personal decisions
relating to marriage, procreation, contraception,
family relationships, child rearing, and education.” Id.
at 573–74. Furthermore, the Court noted that “Roe
recognized the right of a woman to make certain
fundamental decisions affecting her destiny and
confirmed once more that the protection of liberty
under the Due Process Clause has a substantive
dimension of fundamental significance in defining the
rights of the person.” Id.; see also Obergefell v. Hodges,
576 U.S. 644 (2015) (relying on long line of privacy and
liberty cases to strike down ban on same-sex
marriage).
Just as choosing one’s partner in marriage,
deciding based on one’s values whether to use
contraception, and freely determining important
aspects of parenting are essential to liberty, the Court
has repeatedly recognized that the freedom to make
one’s own decision about whether to continue a
pregnancy and bear a child, or instead have an
abortion, is essential to defining one’s destiny. The
rights protected by the Due Process Clause ensure
that individuals have the right to make decisions
about the most fundamental aspects of their lives.
Just as the State may not bar consenting adults from
12
marrying, Obergefell, 576 U.S. 644, so, too, it could not
compel them to do so. Just as it may not forbid parents
from sending their children to a particular private
school, Meyer, 262 U.S. at 399–400, it may not compel
them to do so. Just as the State may not compel one
not to procreate, Skinner, 316 U.S. at 541, it cannot
compel one to procreate by banning contraception or
abortion. The liberty that the Due Process Clause
protects is the liberty to make such fundamental life
decisions oneself.
Thus, the jurisprudence that preceded Roe for
fifty years, like the jurisprudence that has followed it
in the fifty years since, sets out a consistent principle:
that the Constitution protects the rights of all of us to
make foundational decisions about personal and
family life. See, e.g., Troxel v. Granville, 530 U.S. 57,
66–67 (2000) (plurality) (nonparental visitation
statute “unconstitutionally infringes” parent’s
“fundamental liberty interest” protected by due
process); M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996)
(state law denying appeal from termination of
parental rights because of inability to pay fees
violated the fundamental “interest of parents in their
relationship with their children” protected by the
Fourteenth Amendment); Zablocki v. Redhail, 434
U.S. 374, 384 (1978) (state law requiring residents
with child support obligations to obtain court
permission to marry violated “the fundamental ‘right
of privacy’ implicit in the Fourteenth Amendment”);
Moore v. City of East Cleveland, 431 U.S. 494, 500–01
(1977) (plurality) (zoning ordinance prohibiting
homeowner from living with her son and two
grandsons violated Fourteenth Amendment by
infringing “family choice”); Cleveland Bd. of Educ. v.
LaFleur, 414 U.S. 632, 640 (1974) (school policy
13
requiring pregnant teachers to take unpaid leave for
several months prior to and after birth
unconstitutionally “penalize[d] the pregnant teacher
for deciding to bear a child”).
B.
The Right to Abortion Rests Firmly
on the Fourteenth Amendment
Right to Bodily Integrity.
Roe and Casey also rest firmly on this Court’s
century-old jurisprudence respecting the right to
bodily integrity. As the Casey Court recognized, the
right to abortion protects “personal autonomy and
bodily integrity, with doctrinal affinity to cases
recognizing limits on governmental power to mandate
medical treatment or to bar its rejection.” 505 U.S. at
857. The Roe Court relied on Union Pacific Railroad
Company v. Botsford, 141 U.S. 250 (1891), which held
that a court could not force a personal injury plaintiff
to undergo a surgical examination against her will.
See Roe, 410 U.S. at 152. In Botsford, the Court held
that “[n]o right is held more sacred, or is more
carefully guarded by the common law, than the right
of every individual to the possession and control of his
own person, free from all restraint or interference of
others, unless by clear and unquestionable authority
of law.” 141 U.S. at 251; see also Skinner, 316 U.S. at
541 (holding that forcible sterilization causes
“irreparable injury” by “forever depriv[ing the
individual] of a basic liberty”) (cited by Roe, 410 U.S.
at 152; Casey, 505 U.S. at 849, 858–59).
In Casey, the Court also pointed to numerous
cases that were decided before and after Roe that
similarly protect a right to bodily integrity, including
Rochin v. California, 342 U.S. 165 (1952) (holding that
Due Process Clause prohibited forcible extraction of
14
stomach contents of someone suspected of swallowing
illegal drugs), and Washington v. Harper, 494 U.S. 210,
221–22 (1990) (holding that person in prison
“possess[es] a significant liberty interest in avoiding
the unwanted administration of antipsychotic drugs
under the Due Process Clause”). The Casey Court
concluded that the right to decide to have an abortion
“touche[s] not only upon the private sphere of the
family but upon the very bodily integrity of the
pregnant woman.” 505 U.S. at 896. Moreover, the
Court warned,
If indeed the woman’s interest in
deciding whether to bear and beget a
child had not been recognized as in Roe,
the State might as readily restrict a
woman’s right to choose to carry a
pregnancy to term as to terminate it, to
further asserted state interests in
population control, or eugenics, for
example.
Id. at 859 (collecting cases); see also Griswold, 381 U.S.
at 497 (Goldberg, J., concurring) (“[I]f upon a showing
of slender rationality, a law outlawing voluntary birth
control . . . is valid, then, by the same reasoning, a law
requiring compulsory birth control also would seem to
be valid.”).
Since Casey, courts have continued to protect
the Fourteenth Amendment right to bodily integrity.
See, e.g., Guertin v. Michigan, 912 F.3d 907, 920 & n.3
(6th Cir. 2019) (citing Casey and holding that
plaintiffs had a substantive due process claim based
on right to bodily integrity in case related to toxic
exposure from Flint water crisis); Kallstrom v. City of
Columbus, 136 F.3d 1055, 1062–63 (6th Cir. 1998)
15
(same in case involving disclosure of undercover
officers’ personal information that “created a very real
threat to the officers’ and their family members’
personal security and bodily integrity, and possibly
their lives”); Rogers v. City of Little Rock, 152 F.3d 790,
795 (8th Cir. 1998) (same in case involving civilian
raped by a police officer after traffic stop); Wudtke v.
Davis, 128 F.3d 1057, 1062–63 (7th Cir. 1997) (same
in case involving sexual assault and harassment of
teacher by district superintendent); Canedy v.
Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (same in
case involving repeated strip searches of prisoner, and
finding the liberty and privacy interest at stake
“firmly ensconced”).
In short, far from being outliers, Roe and Casey
are firmly established in a long line of cases protecting
the right of personal autonomy to make fundamental
decisions regarding one’s body and family and
protecting an individual’s bodily integrity from
government intrusion. The same liberty right that
protects those who eschew contraception and abortion
because of their personal views also protects the right
to decide to use contraception and to terminate a
pregnancy. These decisions are an essential part of the
fabric of rights protecting individuals from
government interference in their most intimate
decisions. And their place in and deep connection to
this established jurisprudence counsels heavily
against overruling them.
16
II.
ABORTION IS NOT CATEGORICALLY
DIFFERENT FROM THE LIBERTY,
PRIVACY, AND BODILY INTEGRITY
RIGHTS THE COURT HAS LONG
RECOGNIZED AS PROTECTED BY THE
FOURTEENTH AMENDMENT.
Notwithstanding Roe’s central place in one
hundred years of precedent, and its repeated
reaffirmation over the fifty years since it was decided
in 1973, Petitioners argue that abortion is
categorically different from all other privacy and
liberty rights protected by Due Process. They
maintain that the State’s interest in potential life
precludes any recognition of a pregnant woman’s right
whatsoever, and makes this right different from all
other constitutional rights. In Petitioners’ view,
restrictions on abortion implicate no fundamental
liberty or privacy rights and, therefore, at any point in
pregnancy, should be subject only to rational basis
review. Pet. Br. 5, 11. Petitioners maintain that the
Court can overturn Roe and Casey without
undermining other liberty and privacy rights because
“[n]o other right involves, as abortion does, the
purposeful termination of potential life.” Pet. Br. 2
(internal citations and quotation marks omitted).
This argument fundamentally misunderstands
the nature of constitutional analysis. The existence vel
non of a constitutional right does not turn on the
strength of state interests in regulating particular
conduct. Rather, constitutional analysis asks first
whether a right is implicated, and only then assesses
whether state interests justify the infringement. The
strength of the State’s interest in regulation does not
determine whether the right exists in the first place.
State interests are assessed as part of step two of the
17
inquiry: whether the State’s interference with the
right is justified.
This is blackletter constitutional law. For
example, even where the government regulates
conduct in the name of national security, public safety,
or public health—all compelling state interests that
implicate the protection of people’s lives—its actions
must comply with constitutional rights. See, e.g.,
Tandon v. Newsom, 141 S. Ct. 1294, 1296–97 (2021)
(per curiam) (invalidating on free exercise grounds a
public health restriction on meetings for religious
purposes); Holder v. Humanitarian Law Project, 561
U.S. 1, 27–28 (2010) (applying heightened scrutiny to
First Amendment challenge to statute making it a
crime to provide material support to foreign terrorist
organizations, and upholding it on national security
grounds); United States v. U.S. District Court, 407 U.S.
297, 314–15 (1972) (rejecting warrantless wiretapping
for domestic security purposes, notwithstanding
asserted national security justification); Scales v.
United States, 367 U.S. 203, 224–230 (1961) (narrowly
interpreting Smith Act to require proof of specific
intent to further illegal ends of Communist Party,
notwithstanding national security justifications for
statutory prohibition on membership). Similarly, not
even the State’s interest in protecting people’s lives—
not just potential life—wholly negates constitutional
rights of autonomy and privacy protected by the
Fourth, Fifth, and Fourteenth Amendments. Caniglia
v. Strom, 141 S. Ct. 1596, 1599 (2021) (rejecting
“community caretaker” exception to Fourth
Amendment rule requiring warrant to enter a home,
where police entered out of concern that resident was
suicidal); Miranda v. Arizona, 384 U.S. 436, 479 (1966)
(requiring the provision of warnings in interrogations
18
in cases investigating murder and rejecting argument
that “society’s need for interrogation outweighs the
privilege” against self-incrimination).
As these and countless other cases illustrate,
the State’s interest does not determine whether a
right exists, but is instead considered in assessing
whether an intrusion on the right is justified. That is
exactly what Roe and Casey do. The Court has long
recognized that States have significant interests in
both protecting patients’ health and the potential life
of the fetus. But it has also recognized a woman’s right
to decide whether to have a child. Rather than
ignoring one or the other side of the scales, it has
struck a balance, allowing the State to regulate
abortion within limits, and to prohibit abortion postviability with exceptions for the life and health of the
individual. It has acknowledged the state interests,
and properly asked whether they justify infringement
on the right in particular circumstances. It has not, as
Petitioners propose, simply ignored the liberty right
altogether. In fact, Petitioners cite no case in any area
of constitutional law in which the Court has rejected
recognition of a right altogether merely because the
State has a strong countervailing interest.
Moreover, acceptance of Petitioners’ argument
that the state interest in potential life precludes any
recognition of a liberty right to abortion could also
apply to the right to use contraception. See Casey, 505
U.S. at 860. And Petitioners’ argument would also
open the door for States to exercise dominion over a
person’s reproductive decisions in myriad other
circumstances. Some States are poised to expand fetal
rights if this Court overturns Roe and Casey by
defining “life” from the moment of fertilization. See,
e.g., Kan. Stat. Ann. § 65-6732(a)(1) (“The life of each
19
human being begins at fertilization.”); Kentucky
Human Life Protection Act, H.B. 148, § 1(1)(c), 2019
Ky. Acts 884 (“Unborn human being means an
individual living member of the species homo sapiens
throughout the entire embryonic and fetal stages of
the unborn child from fertilization to full gestation
and childbirth.”); La. Stat. Ann. § 40:161(I)(3)
(similar); S.B. 1457, 2021 Ariz. Sess. Laws ch. 486, § 1
(to be codified at Ariz. Rev. Stat. § 1-219(A))
(purporting to accord “on behalf of an unborn child at
every stage of development, all rights, privileges and
immunities available to other persons, citizens and
residents of this state”).
If potential life precludes recognition of any
right that implicates that interest, States could
criminalize or override a pregnant woman’s decision
to obtain (or to refuse) medical care that could affect
the pregnancy. See In re A.C., 573 A.2d 1235, 1243–44
(D.C. 1990) (vacating trial court decision ordering
patient to undergo cesarean section to attempt to
protect the life of the fetus); Burton v. State, 49 So. 3d
263, 265 (Fl. Dist. Ct. App. 2010) (reversing trial court
decision ordering pregnant patient to submit to
hospital confinement, involuntary bed rest, forced
medication, and cesarean section in order to protect
the “ultimate welfare” of the fetus (internal quotations
and citation omitted)). Accepting Petitioners’
argument could also sanction government policies
that allow broad state powers to investigate, control,
and even criminalize a pregnant person’s behavior.
See Br. of National Advocates for Pregnant Women. It
could also enable states to interfere with a pregnant
woman’s decisions about a wide range of medical
treatment—including treatment for an ongoing
miscarriage, cancer screening and treatment, or
20
prescription medication necessary to treat a variety of
conditions—all of which can pose risks to a pregnancy.
See, e.g., SisterSong Women of Color Reprod. Justice
Collective v. Kemp, 472 F. Supp. 3d 1297, 1312, 1318–
19 (N.D. Ga. 2020) (holding that Georgia law defining
“natural person” to mean “any human being including
an unborn child . . . at any stage of development”
would mean “a pregnant woman with an eating
disorder would be guilty of child cruelty,” doctors
would violate mandatory reporting laws for “failing to
report a pregnant patient living with an abusive
partner,” and the provision of routine care to pregnant
persons that poses risks to embryos and fetuses may
constitute criminal “reckless conduct”), appeal
docketed (11th Cir. Aug. 11, 2020).
Petitioners’ argument would also open the door
to States to give others control over a woman’s
reproductive health decisions. The Casey Court
recognized that danger when it struck down a law
requiring wives to notify their husbands of their
abortion decisions. 505 U.S. at 897. The Court
explained that if it were to sanction such a law:
the State could require a married woman
to notify her husband before she used a
postfertilization contraceptive[,] . . .
before engaging in risks to the fetus[,] . . .
before using contraceptives or before
undergoing any type of surgery that may
have
complications
affecting
the
husband’s interests in his wife’s
reproductive organs.
Id. at 898; cf. also Doe ex rel. Doe v. Hunter, 796 F.
App’x 532, 538 (10th Cir. 2019) (rejecting claim by
putative father on behalf of fetus alleging that
21
abortion should be subject to state fetal homicide
laws), cert. denied 141 S. Ct. 367 (2020).
In short, the State’s recognized interest in
protecting potential life, while appropriate to consider
in assessing the validity of abortion regulations, does
not justify refusing to even recognize that the
pregnant woman has any rights at all at stake. Under
Roe and Casey, the state interest in potential life
permits even a prohibition on abortion after fetal
viability except to save the life or health of the
pregnant woman. But the state interest in potential
life cannot entirely eliminate a woman’s rights to
make intimate decisions about her life and bodily
integrity.
III.
THE FACT THAT COURTS HAVE HAD TO
ENFORCE
THE
CONSTITUTIONAL
RIGHT TO DECIDE WHETHER TO HAVE
AN ABORTION DOES NOT JUSTIFY
OVERTURNING ROE AND CASEY.
Petitioners argue that the fact that this Court
and lower courts have had to enforce the abortion
right by invalidating numerous unconstitutional state
abortion restrictions, and that the issue remains
controversial, counsel in favor of overturning Roe and
Casey. They claim that the continuing need for judicial
enforcement shows that the right is not established.
Pet. Br. 3, 23–26. But that is a non sequitur.
Constitutional rights often require vigilance from the
courts. The federal courts hear thousands of cases
every year alleging violations of constitutional rights,
including the First Amendment rights to free speech
and free exercise of religion, the Second Amendment
right to bear arms, the Fourth Amendment right of
privacy in one’s home or effects, the Fifth Amendment
22
right against compelled self-incrimination, and the
Fifth and Fourteenth Amendment rights to due
process. Far from supporting elimination of such
rights, the existence of continued unconstitutional
conduct only underscores the continued necessity for
judicial enforcement.
It is the responsibility of the judiciary to
adjudicate such disputes. When “a [constitutional]
hurt or injury is inflicted . . . by the encouragement or
command of laws or other state action, the
Constitution requires redress by the courts.” Schuette
v. Coal. to Def. Affirmative Action, Integration &
Immigrant Rights & Fight for Equal. by Any Means
Necessary (BAMN), 572 U.S. 291, 313 (2014)
(plurality). As the Court observed in West Virginia
State Board of Education v. Barnette, “[w]e cannot . . .
withhold the judgment that history authenticates as
the function of this Court when liberty is infringed.”
319 U.S. 624, 640 (1943); see also Marbury v. Madison,
5 U.S. (1 Cranch) 137, 163 (1803) (“The very essence
of civil liberty certainly consists in the right of every
individual to claim the protection of the laws,
whenever he receives an injury.”). It is neither
unusual nor improper for individuals to look to the
courts when their rights are violated; it is a sign that
the system is working, not that the rights at issue
should be abandoned.
Constitutional rights are often contentious. For
example, the right to bear arms and the right to vote
have both engendered a high volume of litigation.
More than one thousand Second Amendment
challenges were filed in less than eight years after
District of Columbia v. Heller, 554 U.S. 570 (2008).
Eric Ruben & Joseph Blocher, From Theory to
Doctrine: An Empirical Analysis of the Right to Keep
23
and Bear Arms After Heller, 67 Duke L.J. 1433, 1455
(2018) (cataloguing “997 opinions address[ing] 1,153
distinct Second Amendment challenges” between
June 2008 and February 2016). There were more than
400 voting-related lawsuits in connection with the
2020 election cycle, more than twice as many as in the
2000 election. See Lila Hassan & Dan Glaun, COVID19 and the Most Litigated Presidential Election in
Recent U.S. History, PBS: Frontline (Oct. 28, 2020),
https://www.pbs.org/wgbh/frontline/article/covid-19most-litigated-presidential-election-in-recent-ushistory/. Extensive litigation over constitutional
rights is no reason to diminish the underlying
constitutional rights at issue or to abandon the Court’s
responsibility to protect those rights.
To countenance this argument would do grave
damage to the rule of law. If the mere fact that
constitutional disputes persist were sufficient to
overturn constitutional decisions, those who are
unhappy with a decision of the Court would have
every incentive to continue to violate the right, so that
they could at some point argue that the existence of so
many disputes is reason to abandon the Court’s ruling.
By contrast, adherence to stare decisis and the rule of
law sends a clear message to avoid repetitive,
untenable challenges to established law.
Consider, in this light, Brown v. Board of
Education (Brown I), 347 U.S. 483 (1954), and Brown
v. Board of Education (Brown II), 349 U.S. 294 (1955).
Those decisions were met with widespread and
staunch opposition, including by public officials, and
required extensive litigation to make progress toward
their promise of ending segregation. Shortly after the
Court’s decision in Brown II, nearly one hundred
members of Congress endorsed a statement read on
24
the congressional floor that praised “those States
which have declared the intention to resist forced
integration” and pledged “to use any lawful means to
bring about a reversal of” the Court’s decisions.
Declaration of Constitutional Principles (“Southern
Manifesto on Integration”), 102 Cong. Rec. 4459–60
(Mar. 12, 1956) (statement of 19 Senators and 77
House members calling Brown “a clear abuse of
judicial power”). State resistance to desegregation
required resort to United States military troops to
enforce court orders. See Exec. Order 10,730, 22 Fed.
Reg. 7,628 (Sept. 24, 1957) (ordering Arkansas
National Guard under federal authority and sending
federal troops in response to “willful[] obstruct[ion]” of
court orders in the Eastern District of Arkansas); Exec.
Order 11,111, 28 Fed. Reg. 5,709 (June 11, 1963)
(similar order to enforce desegregation orders in
Northern District of Alabama). And yet the courts
remained steadfast in adhering to Brown and the rule
of law. See, e.g., Griffin v. Cnty. Sch. Bd., 377 U.S. 218
(1964) (holding Prince Edward County school board’s
decision to close public schools and fund private
segregated schools violated equal protection); Cooper
v. Aaron, 358 U.S. 1 (1958) (rejecting attempted
suspension of Little Rock School Board’s integration
plan and ordering integration of public schools); Lee v.
Macon Cnty. Bd. of Educ., 267 F. Supp. 458, 460–64
(M.D. Ala. 1967) (ordering desegregation plan after
three prior injunctions against interference with
desegregation efforts had been violated by state
officials), aff’d, Wallace v. United States, 389 U.S. 215
(1967). 6 This history—decades of litigation to enforce
6 See generally Jack Bass, Unlikely Heroes: The Dramatic Story
of the Southern Judges of the Fifth Circuit who Translated the
Supreme Court's Brown Decision Into a Revolution for Equality
25
the Constitution, often in the face of open resistance—
was no basis for overruling Brown. The same is true
of Roe and Casey.
Petitioners’ attempt to paint the abortion right
as somehow unique among constitutional rights
because of its asserted unpopularity or “controversy”
similarly fails. 7 See Pet. Br. 3, 23–24, 33. Many rights
are controversial or unpopular; indeed, that is why
they cannot be left to the political process, and why
individuals must often turn to an independent
judiciary for their enforcement. Consider also criminal
procedure rights for those accused of murder, free
exercise rights of Jehovah’s Witnesses, or free speech
rights of those who burn the United States flag in
protest—all of which retain constitutional protection
despite often intense public criticism. See Barnette,
319 U.S. at 638 (constitutional rights “withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts”). As the Court
remarked in Brown II, “it should go without saying
that the vitality of . . . constitutional principles cannot
(1981); Equal Justice Initiative, “Massive Resistance,” in
Segregation
in
America
20–39
(2018),
https://segregationinamerica.eji.org/report.pdf.
7 In addition to being immaterial, any assertion that Roe is
unpopular is incorrect; to the contrary, the overwhelming
majority of Americans oppose overturning it. See PBS
NewsHour/NPR, NPR/PBS NewsHour/Marist National Poll:
May 31–June 4, 2019, at 9, https://maristpoll.marist.edu/wpcontent/uploads/2019/06/NPR_PBS-NewsHour_Marist-Poll_
USA-NOS-and-Tables-on-Abortion_1906051428_FINAL.pdf#
page=1 (finding 77% in favor of “keep[ing]” or “expand[ing]” Roe,
compared to only 13% in favor of overturning it).
26
be allowed to yield simply because of disagreement
with them.” 394 U.S. at 300; see also Thornburgh, 476
U.S. at 771–72 (“[C]ontroversy over the meaning of
our Nation’s most majestic guarantees frequently has
been turbulent. As judges, however, we are sworn to
uphold the law even when its content gives rise to
bitter dispute.”).
Given the competing interests this Court has
recognized—an individual’s right to make personal,
intimate decisions about her own life and to control
her own body, on the one hand, and the State’s
interest in potential life on the other—no ruling by
this Court will eliminate disputes and disagreements.
But as this Court has repeatedly held, the viability
line strikes an appropriate balance. As explained fully
in Respondents’ brief, the viability rule has provided
a principled and clear line for half a century, one that
takes seriously both a woman’s liberty interests in
personal autonomy and bodily integrity, and state
interests in protecting potential life. Thirty years ago,
the Court carefully considered but ultimately declined
to abandon that line. It should not do so now.
CONCLUSION
For the reasons set forth above, and in the Brief
for the Respondents, the judgment below should be
affirmed.
27
Respectfully submitted,
David D. Cole
AMERICAN CIVIL
LIBERTIES UNION
FOUNDATION
915 15th Street, N.W.
Washington, DC 20005
Brigitte Amiri
Counsel of Record
Whitney L. White
Jennifer Dalven
Louise Melling
AMERICAN CIVIL
LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2633
bamiri@aclu.org
Jarvis Dortch
Joshua F. Tom
AMERICAN CIVIL
LIBERTIES UNION OF
MISSISSIPPI
FOUNDATION, INC.
P.O. Box 2242
Jackson, MS 39225
Dated: September 20, 2021
28
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