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
THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al.,
Petitioners,
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, et al.,
Respondents.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE STATES OF CALIFORNIA, COLORADO,
CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, MAINE,
MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA,
NEVADA, NEW JERSEY, NEW MEXICO, NEW YORK, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, VIRGINIA, WASHINGTON, AND WISCONSIN, THE DISTRICT OF
COLUMBIA, AND THE NORTH CAROLINA ATTORNEY GENERAL AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
ROB BONTA
Attorney General of California
MICHAEL J. MONGAN
Solicitor General
RENU R. GEORGE
Senior Assistant
Attorney General
KARLI EISENBERG
Supervising Deputy
Attorney General
AIMEE FEINBERG
HELEN H. HONG*
Deputy Solicitors General
STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9693
Helen.Hong@doj.ca.gov
*Counsel of Record
September 20, 2021
(Additional counsel listed on signature page)
i
QUESTION PRESENTED
Whether all pre-viability prohibitions on elective
abortions are unconstitutional.
ii
TABLE OF CONTENTS
Page
Interests of amici ........................................................ 1
Summary of argument ................................................ 2
Argument ..................................................................... 4
I. Mississippi’s prohibition on pre-viability
abortions is—and should remain—
unconstitutional .................................................... 4
A. Mississippi’s law violates settled
precedent ......................................................... 4
B. The Court should not overrule its
precedent regarding the viability line ........... 8
C. The Court should limit review to the
question presented in this case—and
only that question ......................................... 23
II. Overturning the viability rule would harm
the amici States and our residents .................... 25
Conclusion.................................................................. 31
iii
TABLE OF AUTHORITIES
Page
CASES
Allied-Signal, Inc. v. Dir., Div. of Tax’n
504 U.S. 768 (1992) .............................................. 12
Arizona v. Rumsey
467 U.S. 203 (1984) ................................................ 9
Ayotte v. Planned Parenthood of N. New
England
546 U.S. 320 (2006) .............................................. 20
Blackburn v. Blue Mountain Women’s
Clinic
951 P.2d 1 (Mont. 1997) ....................................... 11
City & Cnty. of San Francisco v.
Sheehan
575 U.S. 600 (2015) ........................................ 23, 24
City of Akron v. Akron Ctr. for Reprod.
Health, Inc.
462 U.S. 416 (1983) ................................................ 5
Cooper v. Aaron
358 U.S. 1 (1958) .................................................... 8
Dickerson v. United States
530 U.S. 428 (2000) .......................................... 9, 19
Dobbs v. Jackson Women’s Health Org.
__ S. Ct. __, 2021 WL 1951792 (2021) ................. 23
iv
TABLE OF AUTHORITIES
(continued)
Page
Edwards v. Beck
786 F.3d 1113 (8th Cir. 2015) .......................... 6, 10
Fryover v. Forbes
446 N.W.2d 292 (Mich. 1989)............................... 11
Garcia v. San Antonio Metro. Transit
Auth.
469 U.S. 528 (1985) ................................................ 9
Gonzales v. Carhart
550 U.S. 124 (2007) .............................. 5, 19, 20, 21
Griswold v. Connecticut
381 U.S. 479 (1965) .............................................. 17
Guam Soc’y of Obstetricians &
Gynecologists v. Ada
962 F.2d 1366 (9th Cir. 1992) .............................. 10
Harris v. McRae
448 U.S. 297 (1980) .............................................. 20
Isaacson v. Horne
716 F.3d 1213 (9th Cir. 2013) ........................ 10, 12
Jane L. v. Bangerter
102 F.3d 1112 (10th Cir. 1996) ............................ 10
Janus v. Am. Fed’n of State, Cnty., &
Mun. Employees, Council 31
138 S. Ct. 2448 (2018) ...................................... 9, 15
v
TABLE OF AUTHORITIES
(continued)
Page
Kimble v. Marvel Entm’t, LLC
576 U.S. 446 (2015) .............................................. 12
Korematsu v. United States
323 U.S. 214 (1944) .............................................. 17
Lawrence v. Texas
539 U.S. 558 (2003) .............................................. 17
Loving v. Virginia
388 U.S. 1 (1967) .................................................. 17
Maher v. Roe
432 U.S. 464 (1977) .............................................. 20
Mazurek v. Armstrong
520 U.S. 968 (1997) ........................................ 20, 21
McCormack v. Herzog
788 F.3d 1017 (9th Cir. 2015) .............................. 10
Meyer v. Nebraska
262 U.S. 390 (1923) ........................................ 17, 18
Michigan v. Bay Mills Indian Cmty.
572 U.S. 782 (2014) ................................................ 8
MKB Mgmt. Corp. v. Stenehjem
795 F.3d 768 (8th Cir. 2015) ................................ 10
Obergefell v. Hodges
576 U.S. 644 (2015) .............................................. 17
vi
TABLE OF AUTHORITIES
(continued)
Page
Payne v. Tennessee
501 U.S. 808 (1991) ............................................ 8, 9
PDK Labs. Inc. v. Drug Enforcement
Admin.
362 F.3d 786 (D.C. Cir. 2004) ............................. 24
Pierce v. Soc’y of Sisters
268 U.S. 510 (1925) .............................................. 17
Planned Parenthood of Se. Pa. v. Casey
505 U.S. 833 (1992) ...................................... passim
Planned Parenthood of Wis., Inc. v.
Schimel
806 F.3d 908 (7th Cir. 2015) ................................ 27
Plessy v. Ferguson
163 U.S. 537 (1896) .............................................. 17
Prince v. Massachusetts
321 U.S. 158 (1944) .............................................. 17
Ramos v. Louisiana
140 S. Ct. 1390 (2020) .................................... 12, 16
Rochin v. California
342 U.S. 165 (1952) .............................................. 18
Roe v. Wade
410 U.S. 113 (1973) ...................................... passim
vii
TABLE OF AUTHORITIES
(continued)
Page
Rust v. Sullivan
500 U.S. 173 (1991) .............................................. 20
Skinner v. Oklahoma ex rel. Williamson
316 U.S. 535 (1942) .............................................. 17
State v. Horne
319 S.E.2d 703 (S.C. 1984)................................... 11
Stenberg v. Carhart
530 U.S. 914 (2000) ................................................ 5
Swift & Co. v. Wickham
382 U.S. 111 (1965) ................................................ 9
Thibert v. Milka
646 N.E.2d 1025 (Mass. 1995) ............................. 11
Thornburgh v. Am. College of
Obstetricians & Gynecologists
476 U.S. 747 (1986) .......................................... 5, 18
United States v. Int’l Bus. Machs. Corp.
517 U.S. 843 (1996) ................................................ 9
Washington v. Glucksberg
521 U.S. 702 (1997) ........................................ 17, 24
Whole Women’s Health v. Hellerstedt
136 S. Ct. 2292 (2016) .................................... 21, 23
viii
TABLE OF AUTHORITIES
(continued)
Page
CONSTITUTIONAL PROVISIONS
United States Constitution
amend. XIV ............................................... 17, 18, 24
art. VI, cl. 2 ............................................................. 7
STATUTES
Ala. Code § 26-22-4 .................................................... 11
Ariz. Rev. Stat. § 36-2301.01 ..................................... 10
Ark. Code
§ 20-16-1301 .......................................................... 6
§ 20-16-1307 .......................................................... 6
Ark. S.B. 149, 92nd Gen. Assem., Reg.
Sess. (Ark. 2019)..................................................... 8
Cal. Health & Safety Code
§ 1200 .................................................................... 21
§ 1204 .................................................................... 21
§ 123468(b) ........................................................... 10
Conn. Gen. Stat. § 19a-602(b) ................................... 10
Del. Code, tit. 24, § 1790(b) ....................................... 10
Haw. Rev. Stat. § 453-16 ........................................... 10
Idaho Code
§ 18-604................................................................. 10
§ 18-608(3) ............................................................ 10
ix
TABLE OF AUTHORITIES
(continued)
Page
Ill. Comp. Stat. 55/1-25(a) ......................................... 10
Ind. Code § 16-34-2-2 ................................................. 11
Kan. Stat. § 65-6703(c)(2) .......................................... 11
La. Stat. § 40:1061.10(B) ........................................... 11
Md. Code, Crim. Law § 2-103 .................................... 11
Md. Code, Health-Gen. § 20-209(b)........................... 10
Me. Rev. Stat. tit. 22, § 1598(4) ................................ 10
Minn. Stat. § 145.412(3) ............................................ 10
Miss. Code § 41-41-191(4) ........................................... 5
Mo. Stat. § 188.030(1).......................................... 10, 11
Mont. Code § 50-20-109(1)(b) .................................... 10
N.Y. Public Health Law § 2599-bb(1) ................. 10, 21
Ohio Rev. Code § 3702.30(A)(1) ................................ 21
R.I. Gen. Laws § 23-4.13-2(d) .................................... 10
Tenn. Code
§ 39-15-211 ........................................................... 10
§ 39-15-212 ........................................................... 11
Utah Code § 76-7-302(b) ............................................ 10
x
TABLE OF AUTHORITIES
(continued)
Page
Wash. Rev. Code
§ 9.02.110 .............................................................. 10
§ 9.02.120 .............................................................. 10
Wyo. Stat. § 35-6-102................................................. 10
COURT RULES
United States Supreme Court
Rule 14.1(a) .......................................................... 23
Rule 37.4 ................................................................. 1
OTHER AUTHORITIES
Advisory Board, The States With the
Highest (and Lowest) Maternal
Mortality, Mapped (Nov. 9, 2018) ........................ 30
Am. Coll. of Obstetricians and
Gynecologists, Abortion Policy
(Nov. 2020) ..................................................... 22, 30
Andrews, Contraception is Free Except
When It is Not, KHN News (July 23,
2021) ..................................................................... 16
Bernstein, et al., The Economic Effects
of Abortion Access: A Review of the
Evidence (2019) .................................................... 30
Cal. Dep’t of Health Care Servs., Office
of Family Planning .............................................. 21
xi
TABLE OF AUTHORITIES
(continued)
Page
Carmody, Abortion Facilities Under
Strain, N.Y. Times (July 19, 1970) ...................... 27
Cassidy, Women Facing Restrictions
Seek Abortions Out of State, AP
News (Sept. 7, 2019)............................................. 27
Centers for Disease Control and
Prevention, Contraception ................................... 16
Dreher, Reversing ‘Roe’; Outside Group
Uses Mississippi as ‘Bait’ to End
Abortion, Jackson Free Press
(Mar. 14, 2018) ....................................................... 6
Foster, et al., Socioeconomic Outcomes
of Women Who Receive and Women
Who are Denied Wanted Abortions in
the United States, 108 Am. J. Pub.
Health 407 (2018) ................................................. 30
Foster, The Turnaway Study: Ten
Years, A Thousand Women, and the
Consequences of Having—or Being
Denied—an Abortion (2021)................................. 13
Gerdts, et al., Side Effects, Physical
Health Consequences, and Mortality
Associated with Abortion and Birth
after an Unwanted Pregnancy, 26
Women’s Health Issues 55 (2016).................. 22, 29
xii
TABLE OF AUTHORITIES
(continued)
Page
Gold, Abortion and Women’s Health: A
Turning Point for America? (1990) ...................... 26
Guttmacher Inst., An Overview of
Abortion Laws (Sept. 1, 2021).............................. 21
Guttmacher Inst., Induced Abortion
Worldwide 2 (Mar. 2018) ............................... 22, 29
Guttmacher Inst., State Bans on
Abortion Throughout Pregnancy
(Sept. 1, 2021) ......................................................... 7
Ibis Reproductive Health & Ctr. for
Reproductive Rights, 2 Evaluating
Priorities: Measuring Women’s and
Children’s Health and Well-Being
Against Abortion Restrictions in the
States (2017) ......................................................... 29
Ill. Dep’t of Pub. Health, Family
Planning ............................................................... 22
Jerman, et al., Barriers to Abortion Care
and Their Consequences for Patients
Traveling for Services: Qualitative
Findings from Two States, 49
Perspectives on Sexual and Reprod.
Health 2 (2017) .................................................... 28
xiii
TABLE OF AUTHORITIES
(continued)
Page
Lai, Abortion Bans: 9 States Have
Passed Bills to Limit the Procedure
This Year, N.Y. Times (May 29,
2019) ....................................................................... 7
Latt, et al., Abortion Laws Reform May
Reduce Maternal Mortality: An
Ecological Study in 162 Countries, 19
BMC Women’s Health 1 (2019) ..................... 22, 29
Lourgos, Inside the Illinois Abortion
Clinic that Could Become the Nearest
Option for Women in St. Louis and
Beyond, Chicago Tribune (June 10,
2019) ..................................................................... 27
Mason, State Lawmakers Continue
Crusade Against Roe v. Wade With
Flood of New Abortion Bills, L.A.
Times (Apr. 22, 2021) ......................................... 6, 7
Mayo Clinic, Family Planning: Get the
Facts About Pregnancy Spacing .......................... 29
Michigan Dep’t of Health and Human
Servs., Michigan Mother Infant
Health & Equity Improvement Plan .................... 22
Mississippi College of Law, Legislative
History Project, HB 1510, Gestational
Age Act (Feb. 2, 2018)............................................. 6
xiv
TABLE OF AUTHORITIES
(continued)
Page
New York State Dep’t of Health,
Comprehensive Family Planning and
Reproductive Health Care Services
Program ................................................................ 22
New York State Dep’t of Health, New
York State’s Family Support Programs for Pregnant and Parenting
Families ................................................................ 22
Ollove, More U.S. Women Dying from
Childbirth. How One State Bucks
the Trend, Stateline (Oct. 23, 2018) .................... 30
Office of Alabama Governor Kay Ivey,
Governor Ivey Issues Statement After
Signing the Alabama Human Life
Protection Act (May 15, 2019) ................................ 7
Raifman, et al., Border-State Abortions
Increased for Texas Residents after
House Bill 2, 104 Contraception 314
(Sept. 1, 2021) ....................................................... 27
Raymond & Grimes, The Comparative
Safety for Legal Induced Abortion
and Childbirth in the United States,
119 Obstetrics and Gynecology 215
(Feb. 2012) ............................................................ 29
xv
TABLE OF AUTHORITIES
(continued)
Page
Rhodes, Illinois Losing Even More High
School Graduates to Out-of-State
Colleges, Chicago Tribune (Mar. 12,
2019) .................................................................... 14
Rice, et al., Sociodemographic and
Service Use Characteristics of
Abortion Fund Cases from Six States
in the U.S. Southeast, 18 Int. J. Environ. Res. & Pub. Health 3813 (Apr. 6,
2021) ..................................................................... 28
Sandoval, Near-Complete Ban on
Abortion Is Signed Into Law in
Texas, N.Y. Times (May 19, 2021) ......................... 7
Siegel, ProChoiceLife: Asking Who
Protects Life and How—and Why It
Matters in Law and Politics, 93 Ind.
L.J. 207 (2018) ...................................................... 16
Strayer, The Great Out-of-State
Migration: Where Students Go, N.Y.
Times (Aug. 16, 2016) ......................................... 13
Upadhyay et al., Denial of Abortion
Because of Provider Gestational Age
Limits in the United States, 104 Am.
J. Pub. Health 1687 (Sept. 2014) ................... 14, 28
xvi
TABLE OF AUTHORITIES
(continued)
Page
Varney, Long Drives, Air Travel,
Exhausting Waits: What Abortion
Requires in the South, Kaiser Family
Foundation (Aug. 3, 2021) ................................... 28
White, et al., Changes in Abortion in
Texas Following an Executive Order
Ban During the Coronavirus
Pandemic, 325 J. Am. Med. 691
(Jan. 4, 2021) ........................................................ 27
1
INTERESTS OF AMICI
Amici are the States of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington,
and Wisconsin, the District of Columbia, and the Attorney General of North Carolina. We submit this
brief in support of respondents pursuant to Rule 37.4.
Each of the amici States has important interests in
protecting the health, safety, and constitutional rights
of its residents. As this Court has repeatedly recognized over the last half century, one such right protects a woman’s ability to make the profoundly
personal decision of whether to carry a pregnancy to
term.
Under the Court’s precedents, that right is not
without limitations. Beyond the point when a fetus
would be viable outside the womb, States may prohibit
abortions altogether, provided that they make certain
minimum exceptions (such as for pregnancies that endanger a woman’s life). Many of the amici States have
adopted such prohibitions. Before that point, States
may further their interests in sustaining medical
standards, promoting the safety and health of women,
and protecting potential life by adopting a wide range
of abortion regulations, so long as those regulations
satisfy constitutional scrutiny. Amici States have
adopted many such regulations as well. But this
Court has long adhered to a bright-line constitutional
rule that States may not ban abortions before the
point of viability. Amici States have a powerful interest in preserving that settled rule, which draws an appropriate line that respects state interests while
safeguarding a woman’s ability to make one of the
2
most consequential, intimate, and properly private decisions she will ever confront.
Amici States also have a substantial interest in the
evenhanded, predictable, and consistent development
of legal principles. The doctrine of stare decisis preserves stability in the law and promotes the legitimacy
of our judicial system. Since 1973, the States and citizens of this Nation have ordered their conduct and
made decisions in reliance on the existence of a constitutional right to decide whether to have an abortion
before the point of viability. Departing from that established and workable rule would disrupt settled expectations, impose substantial burdens on amici
States, and jeopardize the health of our residents and
others. Petitioners cannot establish the kind of extraordinary justification that would warrant upending
this long-settled aspect of constitutional law.
SUMMARY OF ARGUMENT
The Mississippi statute at issue here bans most
abortions after 15 weeks’ gestation. Petitioners concede that the ban takes effect well before the point at
which a fetus would be viable outside the womb. The
statute thus plainly violates this Court’s settled precedent, which directs that States may not ban abortions
before viability.
Petitioners now ask the Court to overturn that viability rule, but they have not advanced the kind of
special justification required to abandon an established precedent of this Court. The viability rule is a
straightforward and workable standard; millions of
women and families have reasonably relied on it in ordering their lives; the States have relied on it in structuring their policies; it has not been overtaken by any
3
factual or legal developments; and it represents a reasonable constitutional judgment that this Court has
repeatedly reaffirmed.
The viability rule also respects the States’ interests. Contrary to petitioners’ contentions, States retain substantial latitude under the viability rule to
regulate the medical profession, protect potential life,
and safeguard women’s health and safety. They also
have many alternatives for reducing the incidence of
abortion—including a range of policies adopted by
amici States to provide access to contraception and
family planning services—without depriving women
of control over a deeply personal and intimate decision
regarding their autonomy over their own bodies.
Abandoning the viability rule would harm the interests of the States and our citizens. Many pregnant
women residing (permanently or temporarily) in areas
with restrictive abortion bans would be forced either
to journey to another State to seek care or to carry an
unwanted pregnancy to term. The resulting influx of
patients could strain the healthcare systems of amici
States and other jurisdictions that continue to protect
a woman’s right to decide whether to have an abortion
before the point of viability. For women unable to
make that journey, laws banning abortions before viability would lead to materially worse health outcomes
and reduced socioeconomic opportunities. There is no
sound basis for imposing those harms. The Court
should adhere to its longstanding precedent guaranteeing women in every State the right to decide, before
the point of viability, whether to carry a pregnancy to
term.
4
ARGUMENT
I. MISSISSIPPI’S PROHIBITION ON PRE-VIABILITY
ABORTIONS
IS—AND
SHOULD
REMAIN—
UNCONSTITUTIONAL
In Roe v. Wade, 410 U.S. 113 (1973), this Court
held that before the “point at which the fetus becomes
‘viable’”—“that is, potentially able to live outside the
mother’s womb”—the Constitution does not permit a
State to prohibit a woman from deciding whether to
carry her pregnancy to term. Id. at 160, 163-164. This
Court has repeatedly reaffirmed that viability rule
over the last half century. And the Mississippi statute
at issue in this case plainly contravenes it. In fact,
that was the point of the enactment. Mississippi asks
the Court to abandon the viability rule (indeed, it now
urges the Court to abandon Roe altogether, see infra
pp. 23-25), but the factors this Court consults in determining whether to depart from long-established doctrine all counsel against overruling it.
A. Mississippi’s
Precedent
Law
Violates
Settled
Roe recognized that the Constitution protects a
“woman’s decision whether or not to terminate her
pregnancy.” 410 U.S. at 153. At the same time, the
Court acknowledged that a State maintains “important interests in safeguarding health,” in “protecting potential life” from the outset of a pregnancy, and
in sustaining medical standards. Id. at 154. At the
point of viability, those state interests “become sufficiently compelling to sustain regulation of the factors
that govern the abortion decision,” id., including by
prohibiting abortions altogether (with certain minimum exceptions, such as for the life of the pregnant
woman). But “[b]efore viability, the State’s interests
5
are not strong enough to support a prohibition of abortion.” Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 846 (1992). Roe thus recognized “the right
of the woman to choose to have an abortion before viability and to obtain it without undue interference
from the State.” Id.; see also id. at 853 (States’ interests cannot “outweigh the interests of the woman in
choosing to terminate her pregnancy” before viability).
As Judge Higginbotham recognized below, “[i]n an
unbroken line” of precedent since Roe, this Court has
“affirmed, and re-affirmed . . . a woman’s right to
choose an abortion before viability.” Pet. App. 1a-2a.
The Court “twice reaffirmed” the viability line in the
1980s, in the face of calls by the United States and
others to reject it. Casey, 505 U.S. at 870 (plurality
opinion) (citing Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986), and City
of Akron v. Akron Ctr. for Reprod. Health, Inc., 462
U.S. 416 (1983)); see id. at 845. In the 1990s, Casey
reiterated that before “viability,” a “woman has a right
to choose to terminate her pregnancy.” Id. at 870 (plurality opinion). Multiple times in the following decades, the Court has declined to “revisit” that rule,
Stenberg v. Carhart, 530 U.S. 914, 921 (2000), instead
accepting the premise that “[b]efore viability, a State
‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy,’” Gonzales
v. Carhart, 550 U.S. 124, 146 (2007).
There can be no doubt that Mississippi’s statute
contravenes the viability rule. The statute prohibits
abortion “if the probable gestational age” is “greater
than fifteen (15) weeks,” “[e]xcept in a medical emergency or in the case of a severe fatal abnormality[.]”
Miss. Code § 41-41-191(4); see Pet. App. 70a. Missis-
6
sippi conceded in the courts below that it “had no evidence of viability at 15 weeks” and acknowledged that
its own Department of Health takes the view “that a
fetus cannot survive outside the womb at 15 weeks.”
Pet. App. 8a. In seeking review in this Court, Mississippi argued that the case was an “ideal” vehicle precisely because its law prohibits abortions far in
advance of “the viability line.” Pet. 34 (“A 20-, 22-, or
24-week law is too close to the viability line[.]”). And
its merits brief again concedes that the challenged
statute “prohibits (with exceptions for life and health)
abortion after 15 weeks’ gestation and thus before viability.” Pet. Br. 1.
Indeed, the circumstances surrounding the enactment of Mississippi’s statute suggest that its purpose
was to violate this Court’s precedent. State legislators
observed during a floor debate that a similar abortion
ban had already been struck down as unconstitutional
in light of this Court’s precedent. 1 But the Mississippi
Legislature passed the statute anyway, and close observers of that legislative process have understandably concluded that it did so “with the aim of undoing”
Roe. 2
Mississippi College of Law, Legislative History Project,
HB 1510, Gestational Age Act (Feb. 2, 2018), https://tinyurl.com/ymcvdbju (at 40:54-41:23); see generally Arkansas Human Heartbeat Protection Act, Ark. Code §§ 20-16-1301 to 1307
(2013) (ban on abortions after 12 weeks’ gestation); Edwards v.
Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (holding Arkansas statute unconstitutional).
1 See
2 Mason,
State Lawmakers Continue Crusade Against Roe v.
Wade With Flood of New Abortion Bills, L.A. Times (Apr. 22,
2021), https://tinyurl.com/7rpptad8; see, e.g., Dreher, Reversing
‘Roe’; Outside Group Uses Mississippi as ‘Bait’ to End Abortion,
Jackson Free Press (Mar. 14, 2018), https://tinyurl.com/rhnhtpt5
7
And Mississippi is not alone. Recent years have
seen a surge in state legislatures passing bans on
abortion before viability. In 2019, for example, Georgia, Kentucky, Louisiana, and Missouri enacted laws
that “effectively prohibit abortions after six to eight
weeks.” 3 This year has seen 10 additional abortion
bans, including a six-week abortion ban in Texas. 4 In
all, 16 States have now enacted pre-viability abortion
bans. 5 Some state officials who supported those laws
have admitted that they “contradict[] . . . binding
precedents of the U.S. Supreme Court”—and that it
was “the intent of the legislation to set the stage” for
“the Supreme Court [to] overturn[] current case law.” 6
As States in our federal system, amici recognize
that the Constitution is “the supreme Law of the
Land,” U.S. Const. art. VI, cl. 2, and that this Court is
(Mississippi Legislature “used a template developed outside the
state” by an organization that “want[s] to cause a legal battle that
will eventually overturn the 1973 Roe v. Wade decision”).
3 Lai, Abortion Bans:
9 States Have Passed Bills to Limit the Procedure This Year, N.Y. Times (May 29, 2019), https://tinyurl.com/6h2xmwvz.
4 See Lai, supra; Sandoval, Near-Complete Ban on Abortion Is
Signed Into Law in Texas, N.Y. Times (May 19, 2021), https://tinyurl.com/4knfxajn.
5 Guttmacher
Inst., State Bans on Abortion Throughout Pregnancy (Sept. 1, 2021), https://tinyurl.com/2jhry22n.
6 Mason, supra (reporting remarks of Arkansas Governor upon
signing abortion ban in March 2021); see also Office of Alabama
Governor Kay Ivey, Governor Ivey Issues Statement After Signing
the Alabama Human Life Protection Act (May 15, 2019),
https://tinyurl.com/p8zbv52u (acknowledging that Alabama
abortion ban is likely “unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade,” but that it presented “the
best opportunity” for “the U.S. Supreme Court to revisit this important matter”).
8
the ultimate arbiter of the requirements imposed by
the Constitution, see, e.g., Cooper v. Aaron, 358 U.S. 1,
18 (1958) (“Every state legislator and executive and
judicial officer is solemnly committed . . . ‘to support
this Constitution.’”). We take seriously our obligation
to abide by the precedents of this Court—even when
we respectfully disagree with them.
We also
acknowledge our sister States’ prerogative to use constitutional means to register their disapproval of precedents with which they disagree. See, e.g., S.B. 149,
92nd Gen. Assem., Reg. Sess. (Ark. 2019) (“trigger
law” that becomes effective only after certification that
Roe and Casey have been overruled or displaced by a
constitutional amendment). But the concerted effort
by Mississippi and other States to enact statutes that
deliberately infringe the existing constitutional rights
of their citizens and violate this Court’s constitutional
precedent, for the stated purpose of undermining that
precedent, is a disturbing and destabilizing trend.
B. The Court Should Not Overrule Its
Precedent Regarding the Viability Line
Because its law directly conflicts with Supreme
Court precedent, see Pet. App. 8a, 13a, 18a, 20a, 45a,
50a, 54a, Mississippi urges this Court to overrule that
precedent, Pet. Br. 1. “But this Court does not overturn its precedents lightly”; to the contrary, adherence
to precedent is “a foundation stone of the rule of law.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798
(2014). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808,
827 (1991). It is “not an inexorable command,” but
“[e]ven in constitutional cases, the doctrine carries
9
such persuasive force that” this Court has “always required a departure from precedent to be supported by
some special justification.” United States v. Int’l Bus.
Machs. Corp., 517 U.S. 843, 856 (1996) (internal quotation marks and alteration omitted); see also Dickerson v. United States, 530 U.S. 428, 443 (2000); Arizona
v. Rumsey, 467 U.S. 203, 212 (1984). The Court consults a range of factors in evaluating whether a party
seeking to overturn settled precedent has established
such a justification. Here, those factors all point
against abandoning the viability rule.
1. A critical consideration in any stare decisis
analysis is whether the existing rule has proven “to be
unworkable in practice.” Swift & Co. v. Wickham, 382
U.S. 111, 116 (1965); see, e.g., Janus v. Am. Fed’n of
State, Cnty., & Mun. Employees, Council 31, 138 S. Ct.
2448, 2481 (2018); Casey, 505 U.S. at 854-855; Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546
(1985). The Court has recognized that there is less
cause for adhering to an existing legal principle if that
principle depends on a “line” that has “proved to be
impossible to draw with precision,” Janus, 138 S. Ct.
at 2481, or has otherwise “defied consistent application by the lower courts,” Payne, 501 U.S. at 830. That
is not the case here.
The viability line is straightforward: “a State may
not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Casey, 505 U.S. at 879 (plurality opinion). That rule
“represent[s] . . . a simple limitation beyond which a
state law is unenforceable.” Id. at 855 (majority opinion). The courts below had no difficulty applying the
rule in this case. See Pet. App. 13a, 45a. And although
Mississippi disagrees with the rule, it concedes that
the rule applies to its statute. See, e.g., Pet. Br. 1.
10
Cases from other jurisdictions further demonstrate
that the viability rule is workable in practice. Since
Casey, the courts of appeals that have considered laws
prohibiting abortions before viability have had no difficulty applying the rule. See, e.g., MKB Mgmt. Corp.
v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015);
McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir.
2015); Edwards, 786 F.3d at 1117; Isaacson v. Horne,
716 F.3d 1213, 1231 (9th Cir. 2013); Jane L. v.
Bangerter, 102 F.3d 1112, 1114, 1117-1118 (10th Cir.
1996); Guam Soc’y of Obstetricians & Gynecologists v.
Ada, 962 F.2d 1366, 1368-1369, 1372 (9th Cir. 1992);
see also Resp. Br. 23, 41 n.26.
The experience of the States offers still more evidence of the workability of this rule. Eighteen
States—including States on both sides of this case—
expressly use “viability” as the point beyond which
most abortions are prohibited under state law. See,
e.g., Ariz. Rev. Stat. § 36-2301.01; Cal. Health &
Safety Code § 123468(b); Conn. Gen. Stat. § 19a602(b); Del. Code. tit. 24, § 1790(b); Haw. Rev. Stat.
§ 453-16(b); Idaho Code §§ 18-604, 18-608(3); Ill.
Comp. Stat. 55/1-25(a); Me. Rev. Stat. tit. 22,
§ 1598(4); Md. Code, Health-Gen. § 20-209(b); Minn.
Stat. § 145.412(3); Mo. Stat. § 188.030(1); Mont. Code
§ 50-20-109(1)(b); N.Y. Pub. Health Law § 2599-bb(1);
R.I. Gen. Laws § 23-4.13-2(d); Tenn. Code § 39-15211(b)(1); Utah Code § 76-7-302(b); Wash. Rev. Code
§§ 9.02.110, 9.02.120; Wyo. Stat. § 35-6-102. There is
no indication that the legislators who drafted those
statutes, the courts that apply them, or the physicians
and women who are subject to them, have experienced
difficulty understanding or applying that line.
11
Indeed, many state statutes require physicians to
make a viability determination before certain abortions based on assessments of the fetus’s gestational
age, weight, lung maturity, or other tests to determine
whether it would be viable. See, e.g., Ala. Code § 2622-4; Ind. Code § 16-34-2-2; Kan. Stat. § 65-6703(c)(2);
La. Stat. § 40:1061.10(B); Mo. Stat. § 188.030; Tenn.
Code § 39-15-212. And outside of the abortion context,
several States have conditioned civil recovery under
wrongful death statutes or criminal liability under
murder or manslaughter statutes on a determination
that a fetus was viable. 7
Although petitioners argue extensively about the
administrability of “[a]bortion jurisprudence” in other
respects, see Pet. Br. 3, 19-28, they fail to identify any
workability concerns specific to the viability rule, see
id. at 38-45. Some of their amici assert that “viability
is a complex medical assessment” that cannot “be determined with . . . precision.” E.g., Catholic Medical
Ass’n Br. 11. As noted, however, lawmakers across the
Nation have concluded that the concept of viability is
sufficiently precise that it warrants inclusion in state
statutes. See supra pp. 10-11. That is for good reason.
7 See, e.g., Md. Code, Crim. Law § 2-103 (“a prosecution may be
instituted for murder or manslaughter of a viable fetus”); Thibert
v. Milka, 646 N.E.2d 1025, 1027 (Mass. 1995) (“[T]here is no
cause of action under the wrongful death statute for the death of
a child who was not viable at the time of injury and was not born
alive.”); Fryover v. Forbes, 446 N.W.2d 292, 292 (Mich. 1989)
(similar); Blackburn v. Blue Mountain Women’s Clinic, 951 P.2d
1, 16 (Mont. 1997) (similar); State v. Horne, 319 S.E.2d 703, 704
(S.C. 1984) (“[A]n action for homicide may be maintained in the
future when the state can prove beyond a reasonable doubt the
fetus involved was viable, i.e., able to live separate and apart
from its mother without the aid of artificial support.”).
12
There is an “established medical consensus” that viability typically begins “between 23 to 24 weeks.” Pet.
App. 44a. And although viability is a somewhat flexible point when considered across all pregnancies, “it is
medically determinable” in any individual pregnancy.
Isaacson, 716 F.3d at 1225.
2. The Court’s stare decisis inquiry also asks
whether overruling precedent would “unduly upset reliance interests,” with a “focus[] on the legitimate expectations of those who have reasonably relied on the
precedent.” Ramos v. Louisiana, 140 S. Ct. 1390, 1415
(2020) (Kavanaugh, J., concurring); see, e.g., Kimble v.
Marvel Entm’t, LLC, 576 U.S. 446, 457-458 (2015); Allied-Signal, Inc. v. Dir., Div. of Tax’n, 504 U.S. 768,
785-786 (1992). This Court has already recognized the
profound reliance interests at stake here—and the
“certain cost of overruling” the central holding of Roe
“for people who have ordered their thinking and living
around that case[.]” Casey, 505 U.S. at 856.
Those reliance interests have only grown in the
three decades since the Court considered them in Casey. Americans have continued to “organize[] intimate
relationships” and make major life choices “in reliance
on the availability of abortion [before viability] in the
event that contraception should fail.” Casey, 505 U.S.
at 856. The ability of women to have autonomy over
their bodies and “control [over] their reproductive
lives” has contributed materially to their ability “to
participate equally in the economic and social life of
the Nation.” Id. No doubt, many women have succeeded in economic or social life after choosing to carry
pregnancies (planned or unplanned) to term. But the
right to consider a pre-viability abortion in the event
of an unplanned pregnancy has factored critically into
how millions of women have structured their lives and
13
careers; and, for many women, the choice to exercise
that right has profoundly influenced the course of
their lives and allowed them to realize their professional and personal dreams and ambitions. See generally Foster, The Turnaway Study: Ten Years, A
Thousand Women, and the Consequences of Having—
or Being Denied—an Abortion (2020).
Amici States are well familiar with the reliance interests that have built up around the viability rule.
Consistent with our constitutional obligations, we protect the right of women within our borders to choose
whether or not to have an abortion before viability. Indeed, in reliance on this Court’s precedents, many of
our States have enshrined the viability line in our
statutory frameworks regulating abortion. See supra
pp. 10-11.
While those protections might remain in place in
the amici States regardless of how the Court resolves
this case, our residents have also relied on the viability rule in making decisions regarding relocating to
other States to pursue temporary educational, professional, or personal opportunities. In California, for example, tens of thousands of young people choose to
pursue degrees at public schools in other States each
year, including in States that have recently enacted
statutes that contravene the viability rule. 8 And
nearly half of public high school graduates from Illinois who enroll in four-year universities go to out-ofstate schools, with a growing number choosing schools
8 See Strayer, The Great Out-of-State Migration:
Where Students
Go, N.Y. Times (Aug. 16, 2016), https://tinyurl.com/k8f28hje (for
example, Californians represent the largest share of out-of-state
students at public universities in Texas).
14
in Mississippi. 9 In making such decisions, many of
which involve substantial investments of time and
money, our residents have relied on the availability of
modern health and reproductive services in their destination State. It would upend their expectations if
those States were suddenly allowed to adopt restrictive laws banning abortions well in advance of the
point of viability.
For many such women, and for many permanent
residents of States like Mississippi, abandonment of
the viability rule could mean the difference between
being able to have an abortion and not. 10 Those
women and their families would confront the considerable harm that can result when a woman is forced
to carry an unwanted pregnancy to term. See infra
pp. 28-31. Others might have the wherewithal to
travel to a different State in which abortion services
remain available. And that, too, would upset important reliance interests—including those of States
that have structured and budgeted for their
healthcare systems without the prospect of providing
care for a sudden influx of out-of-state patients. See
infra pp. 25-28.
Petitioners contend that the “fractured and unsettled” nature of abortion jurisprudence undermines any
claim to reliance. Pet. Br. 31. But there is nothing
9 See Rhodes, Illinois Losing Even More High School Graduates
to Out-of-State Colleges, Chicago Tribune (Mar. 12, 2019),
https://tinyurl.com/53yhmwjv (noting that, in 2017, Mississippi
recorded a double-digit increase in the number of Illinois public
high school graduates enrolling at its schools).
10 See, e.g., Upadhyay et al., Denial of Abortion Because of Provider Gestational Age Limits in the United States, 104 Am. J. Pub.
Health 1687, 1693 (Sept. 2014), https://tinyurl.com/k2etbta8.
15
unsettled about the viability rule. That rule is the central holding of a landmark decision that this Court has
“affirmed[] and re-affirmed” for nearly fifty years.
Pet. App. 2a; see supra p. 5. Americans have properly
relied on that precedent in forming legitimate expectations regarding a woman’s options with respect to a
pre-viability pregnancy. And the fact that Mississippi
and some other States have enacted laws “exploring”—and sometimes deliberately exceeding—“Roe’s
bounds,” and have “contested” that decision “continuously,” does not “sap[] any claim that reliance interests support” the viability rule. Pet. Br. 33. To the
contrary. In our system of government, it is imperative that citizens be able to rely on the constitutional
holdings of this Court even when political actors in the
States disagree with them.
3. Nor have any legal or factual developments
“‘eroded’” the “‘underpinnings’” of the viability rule.
Pet. Br. 28 (quoting Janus, 138 S. Ct. at 2482). The
underpinning of that rule—in 1973, 1992, and today—
is the judgment “that viability marks the earliest point
at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” Casey, 505 U.S. at 860. While
medical and scientific advances may affect the point
at which viability occurs, see Pet. Br. 30, they “in no
sense” affect “[t]he soundness or unsoundness of that
constitutional judgment[.]” Casey, 505 U.S. at 860.
Petitioners assert that progress achieved through
pregnancy-discrimination laws, liberal leave policies,
safe-haven guarantees, and access to child care have
“dulled” the concerns that supported the viability line
in the first place. Pet. Br. 29. Amici States have been
leaders in adopting those reforms; and where those
policies have been adopted, they provide important
16
protections to women and children. But that type of
law does not bear on the validity of Roe’s central holding: that before the point when a fetus is potentially
able to live outside the womb, a State’s interest in potential life or in protecting the health and safety of a
woman is not constitutionally sufficient to justify a
categorical prohibition on abortions and cannot override a woman’s interest in retaining the ability to decide whether to carry a pregnancy to term.
The same is true of policies that have expanded access to contraceptives. See Pet. Br. 29. Although affordable access to effective contraceptives has been
demonstrated to reduce the incidence of unwanted
pregnancies, access is not universal. 11 Nor are contraceptives fail-safe, even as failure rates decline. 12 Because abortion is “customarily chosen as an unplanned
response to the consequence of unplanned activity or
to the failure of conventional birth control,” Casey, 505
U.S. at 856, the interests and considerations that support the viability line are as relevant today as they
were decades ago.
4. Petitioners also urge the Court to abandon the
viability line on the ground that it “rests on flawed
reasoning” and is “not well grounded in precedent.”
Pet. Br. 39. But the relevant question at this point
and in this case is not whether that decades-old rule
is arguably erroneous, but rather whether it is “grievously or egregiously wrong.” Ramos, 140 S. Ct. at 1414
11 See, e.g., Andrews, Contraception is Free Except When It is Not,
KHN News (July 23, 2021), https://tinyurl.com/4p4w36wz;
Siegel, ProChoiceLife: Asking Who Protects Life and How—and
Why It Matters in Law and Politics, 93 Ind. L.J. 207, 208 n.5
(2018), https://tinyurl.com/ydjcfp47.
12 Centers for Disease Control and Prevention, Contraception,
https://tinyurl.com/ke73kary (last visited Sept. 18, 2021).
17
(Kavanaugh, J., concurring); see id. at 1415 (citing Korematsu v. United States, 323 U.S. 214 (1944), and
Plessy v. Ferguson, 163 U.S. 537 (1896)). “As Justice
Scalia put it, the doctrine of stare decisis always requires ‘reasons that go beyond mere demonstration
that the overruled opinion was wrong,’ for ‘otherwise
the doctrine would be no doctrine at all.’” Id. at 1414.
Petitioners cannot make the necessary demonstration here. The Due Process Clause of the Fourteenth
Amendment prohibits the States from “depriv[ing]
any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. The
word “liberty” is not self-defining, and “[i]n a long line
of cases,” the Court has held that “the ‘liberty’ specially protected by the Due Process Clause includes”
certain rights “in addition to the specific freedoms protected by the Bill of Rights.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). For example, the Court
has held that the Fourteenth Amendment protects
personal and private decisions relating to education,
see Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer
v. Nebraska, 262 U.S. 390 (1923), family relationships,
see Prince v. Massachusetts, 321 U.S. 158 (1944), marriage, see Obergefell v. Hodges, 576 U.S. 644 (2015);
Loving v. Virginia, 388 U.S. 1 (1967), intimate relations, see Lawrence v. Texas, 539 U.S. 558 (2003); Griswold v. Connecticut, 381 U.S. 479 (1965),
contraception, Griswold, 381 U.S. 479, and procreation, see Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535 (1942); see also Resp. Br. 17-21.
In line with that precedent, this Court has recognized that “the Due Process Clause includes the
right[] . . . to abortion.” Glucksberg, 521 U.S. at 720.
That was a reasonable judgment: The Constitution’s
“promise that a certain private sphere of individual
18
liberty will be kept largely beyond the reach of government” extends to “a woman’s decision . . . whether to
end her pregnancy”—one of the most “personal[,] intimate, [and] properly private” decisions a human being
can make. Thornburgh, 476 U.S. at 772.
The viability rule appropriately safeguards that established constitutional right. Because viability is the
moment when “there is a realistic possibility of maintaining and nourishing a life outside the womb,” Casey, 505 U.S. at 870 (plurality opinion), it marks the
proper dividing line before which a State may not categorically prohibit the decision to obtain an abortion.
Beyond that point, “the independent existence of the
second life can in reason and all fairness be the object
of state protection that now overrides the rights of the
woman.” Id. Before that point, the viability rule imposes a “clear” line, preventing a State from extinguishing a woman’s right to “retain the ultimate
control” over whether to have an abortion. Id. at 869.
Petitioners challenge that line, but their arguments are not persuasive. They assert, for example,
that the viability line cannot be found in the “constitutional text or structure.” Pet. Br. 39. Of course, neither can many other judicial standards that this Court
has developed to safeguard recognized liberty interests. See, e.g., Meyer, 262 U.S. at 403 (examining
whether law was “arbitrary and without reasonable
relation to any end within the competency of the
state”); Rochin v. California, 342 U.S. 165, 172-173
(1952) (whether conduct “shocks the conscience”).
Petitioners also suggest that the viability rule
draws the line in the wrong place. Pet. Br. 39-41. But
if the Court assumes the validity of its precedent that
“the ‘liberty’ secured by the Due Process Clause [does]
protect some right to abortion,” id. at 39—as it should
19
for purposes of resolving the question presented in this
case, see infra pp. 23-25; cf. Gonzales, 550 U.S. at
146—there must be some point in a pregnancy before
which a State may not destroy that right. And petitioners offer no plausible alternative. They suggest
that a more appropriate line would be at “quickening”
(which is “the first recognizable movement of the fetus
in utero, appearing usually from the 16th to the 18th
week of pregnancy,” Roe, 410 U.S. at 132) or perhaps
at some “other point[] before viability.” Pet. Br. 39,
41. But “[p]hysicians and their scientific colleagues”
have regarded quickening as an “event” of “less interest” in fetal development. Roe, 410 U.S. at 160. And
petitioners do not identify any persuasive reason why
quickening (or some other line) would be more workable or justifiable than viability. See Resp. Br. 22, 24,
31-34, 41-50; cf. Casey, 505 U.S. at 870 (plurality opinion) (“[T]here is no line other than viability which is
more workable.”).
However petitioners or their amici would have
drawn the line as a matter of first impression, their
disagreement with the line that this Court has embraced is not a sufficient basis for upending settled
precedent on which generations of women have relied.
See, e.g., Dickerson, 530 U.S. at 443 (“Whether or not
we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first
instance, the principles of stare decisis weigh heavily
against overruling it now.”).
5. Finally, petitioners invoke the interests of the
States, arguing that the Court should abandon the viability rule because it “defeat[s] state interests in a
sweeping way.” Pet. Br. 42. As the amici States can
attest, however, that argument ignores the many
20
ways in which existing precedent allows States to promote their interests in women’s health, fetal life, and
proper oversight of the medical profession.
This Court has recognized that States have legitimate interests “in protecting the health of the woman
and the life of the fetus that may become a child.” Casey, 505 U.S. at 846. It has made clear that States may
further those interests by regulating abortions before
the point of viability, subject to constitutional scrutiny. See id. at 853; see, e.g., Gonzales, 550 U.S. at 168;
Mazurek v. Armstrong, 520 U.S. 968, 975 (1997). For
example, it has rejected constitutional challenges to
certain informed-consent regulations, Casey, 505 U.S.
at 881 (plurality opinion), recognizing a “substantial
government interest justifying a requirement that a
woman be apprised of the health risks of abortion and
childbirth,” id. at 882. It has held that States are permitted to impose certain “waiting period” requirements in order to “implement the State’s interest in
protecting the life of the unborn.” Id. at 885. States
may also express a “preference for childbirth over
abortion,” id. at 883, and decline to “allocat[e] public
funds” for abortion services, see, e.g., Rust v. Sullivan,
500 U.S. 173, 192-193 (1991); Harris v. McRae, 448
U.S. 297, 315-317 (1980); Maher v. Roe, 432 U.S. 464,
474 (1977). They may advance their “strong and legitimate interest in the welfare of [their] young citizens”
by imposing parental involvement requirements, subject to certain judicial bypass procedures. See Ayotte
v. Planned Parenthood of N. New England, 546 U.S.
320, 326, 328 (2006). And the Court has held that they
may restrict certain abortion procedures, in certain
circumstances, to “express[] respect for the dignity of
human life” and protect the “integrity and ethics of the
medical profession.” Gonzales, 550 U.S. at 157.
21
The State also “has a significant role to play in regulating the medical profession,” including medical professionals who provide abortion services. Gonzales,
550 U.S. at 157. The Court has held that professional
licensing and reporting requirements are permissible
so long as they advance a “legitimate interest in protecting women’s health” and do not impose an undue
burden. Whole Women’s Health v. Hellerstedt, 136 S.
Ct. 2292, 2311 (2016); see also Mazurek, 520 U.S. at
975. Many States impose generally applicable licensing requirements for all medical clinics, including
those that perform abortions. 13 Thirty-eight States
permit abortions to be performed only by licensed physicians. 14 Petitioners’ assertion that the viability rule
“defeat[s] state interests” (Pet. Br. 42) thus ignores the
substantial latitude the States retain to protect those
interests through regulations.
Petitioners also ignore the broad range of policies—
adopted by state and local governments across the Nation—that safeguard women’s health and reduce abortions without proscribing pre-viability abortions. For
example, California provides a year’s supply of birth
control to financially eligible individuals, as well as
family planning counseling and education services. 15
Illinois offers pregnancy planning services to low-in-
13 See, e.g., Cal. Health & Safety Code §§ 1200, 1204; N.Y. Pub.
Health Law § 2599-bb; Ohio Rev. Code § 3702.30(A)(1).
14 Guttmacher Inst., An Overview of Abortions Laws (Sept. 1,
2021), https://tinyurl.com/93edyejz.
15 See Cal. Dep’t of Health Care Servs., Office of Family Planning,
https://tinyurl.com/38zpf8sy (last visited Sept. 18, 2021).
22
come individuals, reducing the incidence of unintended pregnancies. 16 Michigan provides robust prenatal care to reduce maternal and infant mortality. 17
And New York offers comprehensive family planning
services as well as prenatal and postpartum care to
women, particularly low-income individuals and those
without health insurance. 18 The evidence establishes
that access to such comprehensive reproductive
healthcare services leads to better health outcomes for
both women and infants. 19
Amici States recognize and share petitioners’ interests in protecting potential life, women’s health, and
the integrity of the medical profession. See Pet. Br. 41.
See Ill. Dep’t of Pub. Health, Family Planning, https://tinyurl.com/fxeh9s8d (last visited Sept. 18, 2021).
16
Michigan Dep’t of Health and Human Servs., Michigan
Mother Infant Health & Equity Improvement Plan, https://tinyurl.com/yvbb33f7 (last visited Sept. 18, 2021).
17 See
18 See, e.g., New York State Dep’t of Health, Comprehensive Fam-
ily Planning and Reproductive Health Care Services Program,
https://tinyurl.com/55mxn73s (last visited Sept. 18, 2021); New
York State Dep’t of Health, New York State’s Family Support Programs for Pregnant and Parenting Families, https://tinyurl.com/ebz4hfhc (last visited Sept. 18, 2021).
19 See also Am. Coll. of Obstetricians and Gynecologists, Abortion
Policy (Nov. 2020), https://tinyurl.com/ACOG-Abortionpolicy;
Guttmacher Inst., Induced Abortion Worldwide 2 (Mar. 2018),
https://tinyurl.com/zvpbtytz; Gerdts, et al., Side Effects, Physical
Health Consequences, and Mortality Associated with Abortion
and Birth after an Unwanted Pregnancy, 26 Women’s Health Issues 55, 58 (2016), https://tinyurl.com/y3yhv6ex; Latt, et al.,
Abortion Laws Reform May Reduce Maternal Mortality: An Ecological Study in 162 Countries, 19 BMC Women’s Health 1, 5, 8
(2019), https://tinyurl.com/BMCwomen-health (162-country
study concluding that “maternal mortality is lower when abortion laws are less restrictive”).
23
Our experience demonstrates that the States may advance those interests without adopting statutes that
deliberately contravene this Court’s long-established
constitutional precedents.
C. The Court Should Limit Review to the
Question Presented in This Case—and
Only That Question
At the certiorari stage, petitioners sought to present three questions: whether “all pre-viability prohibitions on elective abortions are unconstitutional”;
whether the validity of a pre-viability law “should be
analyzed under Casey’s ‘undue burden’ standard or
Hellerstedt’s balancing of benefits and burdens”; and
whether “abortion providers have third-party standing” to challenge a law concerning pre-viability abortions. Pet. i. “To be clear,” petitioners argued, “the
questions presented in this petition do not require the
Court to overturn Roe or Casey.” Id. at 5. “They
merely ask[] the Court to reconcile a conflict in its own
precedents” and “reconsider the bright-line viability
rule.” Id.; see also id. at 5 n.1.
After this Court granted certiorari and limited its
review to the first of the three questions presented,
Dobbs v. Jackson Women’s Health Org., ___ S. Ct. ___,
2021 WL 1951792 (2021), petitioners filed a merits
brief that argues—on the first page and for most of the
next thirty-seven—that “this Court should overrule
. . . Roe and Casey” and hold that there is no constitutional right to abortion. Pet. Br. 1. Whether or not
that expansive argument addresses a “subsidiary
question fairly included” in the question presented, S.
Ct. R. 14.1(a), the merits brief the Court received is
not what petitioners originally advertised. The Court
ordinarily takes a dim view of “such bait-and-switch
tactics.” City & Cnty. of San Francisco v. Sheehan, 575
24
U.S. 600, 621 (2015) (Scalia, J., concurring in part); see
id. at 608-610, 617 (opinion of the Court) (dismissing
first question presented as improvidently granted). It
should not reward petitioners’ tactic here by entertaining their post-grant request for the Court to
broaden the scope of its review and hold that the Constitution does not protect any right to abortion. See
Resp. Br. 11-12.
Principles of judicial restraint also counsel against
taking up that broader issue in the context of this case.
The Court’s longstanding recognition that “the Due
Process Clause includes the right[] . . . to abortion,”
Glucksberg, 521 U.S. at 720, is a matter of enormous
national importance and debate. On this issue, perhaps more than any other, “if it is not necessary to decide more, it is necessary not to decide more.” PDK
Labs. Inc. v. Drug Enforcement Admin., 362 F.3d 786,
799 (D.C. Cir. 2004) (Roberts, J., concurring in part
and concurring in the judgment). And in this case,
where the Court granted review only with respect to a
single question regarding the point in gestation at
which a State may categorically ban abortions, that
“cardinal principle of judicial restraint” (id.) weighs
strongly in favor of limiting plenary review to the
question on which the Court granted certiorari—and
only that question.
If this Court does choose to grant a future petition
raising the broader question of whether “the Constitution protects a right to [an] abortion,” Pet. Br. 1, it
would need to confront (among other things) the extraordinary reliance interests that have built up
around that general right in our society. As already
discussed, women across our Nation have ordered
their lives around the option of having an abortion up
to the point of viability in the event of an unplanned
25
pregnancy, see supra pp. 12-15; those reliance interests would be defeated entirely if the Court were to
hold that States may categorically bar women from
having an abortion beginning at the moment of conception.
The States, too, would be greatly harmed if this
Court abandoned the basic premise of Roe at this late
juncture. Millions of amici States’ residents have
structured their schooling and employment decisions
in light of the constitutional protections recognized in
Roe and Casey. See supra pp. 13-14. And amici States
would experience strains on their healthcare systems
from an influx of women from other States seeking
abortions if this Court were to abandon those protections entirely. See infra pp. 26-27.
Those considerations, and the other factors governing the stare decisis inquiry, should foreclose any
argument for the Court to overrule its “holding that
the Constitution protects a woman’s right to terminate
her pregnancy in its early stages”—just as they did
three decades ago. Casey, 505 U.S. at 844; see id. at
854-861. But those are questions for another day. In
this case, the Court should limit its review to the only
question that was addressed by the courts below, presented by the petition, and granted by this Court. As
to that question, precedent and principles of stare decisis compel the conclusion that Mississippi’s statute
banning abortions “after 15 weeks’ gestation and thus
before viability” (Pet. Br. 1) is unconstitutional.
II. OVERTURNING THE VIABILITY RULE WOULD
HARM THE AMICI STATES AND OUR RESIDENTS
A retreat from the viability line would undermine
the interests of amici States and our residents, in ad-
26
dition to millions of others across the Nation. In Mississippi and other States that have adopted restrictive
bans on abortions far in advance of viability, see supra
pp. 6-7, many pregnant women would be forced either
to journey to another State to seek care or to carry an
unwanted pregnancy to term. That would impose substantial costs on States and local governments and
jeopardize women’s health—including the health of
our residents who have temporarily relocated to Mississippi or other States with similar laws. See supra
pp. 13-14.
Consistent with this Court’s precedents and our
commitment to the rights and liberty interests of
women and their families, amici States have structured our policies to allow women to choose whether to
have an abortion before viability. If the Court upholds
Mississippi’s law and authorizes States to ban abortions before viability, our healthcare systems would
come under significant strain as a result of increased
demand from women in those States who need safe
and legal abortion care.
History demonstrates that a substantial reduction
in the availability of abortion services in one State can
cause its residents to seek services in other States. In
the short period between when New York relaxed its
abortion restrictions and this Court’s decision in Roe,
for example, nearly 350,000 women traveled from out
of state to obtain abortion services in New York. 20
More recently, after certain States curtailed abortion
20 Gold,
Abortion and Women’s Health:
America? 3 (1990).
A Turning Point for
27
services within their borders, many of their residents
have traveled elsewhere for abortions. 21
A sudden spike in the need for services within the
amici States could lead to backlogs and lengthy wait
times—and result in later-term abortions for many
women who would prefer to have them both earlier
and closer to home. In New York, for example, demand from out-of-state residents in the 1970s led to
wait times of up to six weeks. 22 More recently, abortion providers have reported that they would expect
an 8- to 10-week delay because of the inability to absorb additional demand for abortion services. Planned
Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 918
(7th Cir. 2015). 23 For some “women well into their
pregnancies, this time lapse” could be “critical, if not
prohibitive to having the abortion at all.” 24
21 See, e.g., Raifman, et al., Border-State Abortions Increased for
Texas Residents after House Bill 2, 104 Contraception 314
(Sept. 1, 2021), https://tinyurl.com/mhyv3pez; White, et al.,
Changes in Abortion in Texas Following an Executive Order Ban
During the Coronavirus Pandemic, 325 J. Am. Med. 691, 693
(Jan. 4, 2021), https://tinyurl.com/4dw2ukjy; Cassidy, Women
Facing Restrictions Seek Abortions Out of State, AP News
(Sept. 7, 2019), https://tinyurl.com/6xhfvc87.
See Carmody, Abortion Facilities Under Strain,
N.Y. Times (July 19, 1970), https://tinyurl.com/watxyjkk.
22
23 See also U.S. Mot. for TRO or Prelim. Inj. at 7-12, United States
v. Texas, D. Ct. No. 21-796, Dkt. 8 (W.D. Tex. Sept. 15, 2021).
24 Carmody, supra; see also Lourgos, Inside the Illinois Abortion
Clinic that Could Become the Nearest Option for Women in St.
Louis and Beyond, Chicago Tribune (June 10, 2019), https://tinyurl.com/33rehvme; Schimel, 806 F.3d at 918 (“Other women
would be unable to obtain any abortion, because the delay would
push them past the . . . deadline for the Planned Parenthood clinics’ willingness to perform abortions.”).
28
Other women may lack the ability to travel out of
state to obtain healthcare services—including women
with limited resources who have temporarily relocated
for academic opportunities or seasonal work. For
them, a law prohibiting abortions well in advance of
the point of viability in the State in which they currently reside would effectively deprive them of any
choice over whether or not to carry their pregnancy to
term. Pregnant women are frequently unaware of
their pregnancy until weeks or months into the gestational period. 25 When they learn of the pregnancy,
seeking an abortion in a different State may require
taking time off work or school, arranging for child
care, and securing and paying for transportation and
lodging. 26 And for women in some regions, where
neighboring States have all adopted similar bans, obtaining healthcare in another State could mean extended travel distances and increased expenses. For
women without the resources to make such trips—a
disproportionate share of whom are racial minorities—abandonment of the viability line could entirely
deprive them of the ability to make the decision to
have an abortion. 27
25 See Upadhyay, supra.
26 See Varney, Long Drives, Air Travel, Exhausting Waits: What
Abortion Requires in the South, Kaiser Family Foundation
(Aug. 3, 2021), https://tinyurl.com/myy63upd; Jerman, et al.,
Barriers to Abortion Care and Their Consequences for Patients
Traveling for Services: Qualitative Findings from Two States, 49
Perspectives on Sexual and Reprod. Health 2, 95-102 (Apr. 10,
2017), https://tinyurl.com/dh5rhc33.
27 Varney, supra; Rice, et al., Sociodemographic and Service Use
Characteristics of Abortion Fund Cases from Six States in the
U.S. Southeast, 18 Int. J. Environ. Res. & Public Health 3813
29
Those women would face worse health outcomes
than otherwise: Evidence demonstrates that women
in States and nations with restrictive abortion laws already suffer significantly worse health outcomes, including higher morbidity and mortality rates. 28
Women who carry a pregnancy to term against their
wishes are several times more likely to develop potentially life-threatening conditions, including postpartum hemorrhages and eclampsia, and show
“an increased risk of death.” 29 And when women are
forced to carry multiple pregnancies to term close together in time, they face an increased risk of premature birth, and their children are more likely to suffer
from low birth weight, congenital disorders, and schizophrenia. 30
By contrast, as both the American Medical Association and the American College of Obstetricians and
(Apr. 6, 2021), https://tinyurl.com/nhyut4vz.
e.g., Ibis Reproductive Health & Ctr. for Reproductive
Rights, 2 Evaluating Priorities: Measuring Women’s and Children’s Health and Well-Being Against Abortion Restrictions in the
States 16-18 (2017), https://tinyurl.com/uka7daju; Latt, supra;
Guttmacher Inst., Induced Abortion Worldwide 2 (Mar. 2018),
https://tinyurl.com/zvpbtytz; Gerdts, supra.
28 See,
29 Gerdts, supra; see also Raymond & Grimes, The Comparative
Safety of Legal Induced Abortion and Childbirth in the United
States, 119 Obstetrics and Gynecology 215-219 (Feb. 2012),
https://tinyurl.com/Safety-of-Legal-Abortion (risk of death is approximately 14 times higher for women forced to carry an unwanted pregnancy to term than for women who can secure a
legally-induced abortion).
30 Mayo Clinic, Family Planning:
Get the Facts About Pregnancy
Spacing, https://tinyurl.com/y2zy24qj (last visited Sept. 18,
2021).
30
Gynecologists have recognized, preserving “[a]ccess to
safe and legal abortion benefits the health and wellbeing of women and their families.” 31 Amici States know
from experience that the most effective way to reduce
maternal mortality is to commit resources to a variety
of reproductive healthcare programs. For example,
California saw maternal mortality decline by 57 percent between 2006 to 2013 after investing in wideranging reproductive health programs; it now has the
lowest maternal mortality rates in the Nation. 32
Amici States of Massachusetts, Connecticut, and Colorado have seen similar success in reducing maternal
mortality rates. 33 Beyond these improvements in
health outcomes, studies show that meaningful access
to abortion services is associated with better socioeconomic outcomes—including higher employment rates
and reduced reliance on public assistance. 34
As this Court has recognized, “[t]he ability of
women to participate equally in the economic and so-
31 Complaint 5 ¶ 16, Am. Med. Ass’n, et al. v. Stenehjem, Dist. Ct.
of North Dakota, No. 19-cv-125, Dkt. 1 (D.N.D. June 25, 2019);
see also Am. Coll. of Obstetricians and Gynecologists, supra.
32 Ollove, More U.S. Women Dying from Childbirth. How One
State Bucks the Trend, Stateline (Oct. 23, 2018), https://tinyurl.com/2nafej2j.
33 Advisory Board, The States With the Highest (and Lowest) Ma-
ternal Mortality, Mapped
nyurl.com/3b47sukm.
(Nov.
9,
2018),
https://ti-
34 See Foster, et al., Socioeconomic Outcomes of Women Who Receive and Women Who are Denied Wanted Abortions in the United
States, 108 Am. J. Pub. Health 407, 409 (2018), https://tinyurl.com/tyejxdze; Bernstein, et al., The Economic Effects of
Abortion Access: A Review of the Evidence (2019), https://tinyurl.com/y3msrssg.
31
cial life of the Nation has been facilitated by their ability to control their reproductive lives.” Casey, 505 U.S.
at 856. For decades, women have ordered their family
and professional lives, “and made choices that define
their views of themselves and their places in society,”
in reliance on the fact that they have the constitutional right—before viability—to make the deeply personal decision whether to carry a pregnancy to
term. Id. Petitioners may disagree with that rule, but
they have not established the kind of justification that
would be needed to upend those long-settled interests
and transfer authority over that intimate decision
from women to the States.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
ROB BONTA
Attorney General of California
MICHAEL J. MONGAN
Solicitor General
RENU R. GEORGE
Senior Assistant
Attorney General
AIMEE FEINBERG
HELEN H. HONG
Deputy Solicitors General
KARLI EISENBERG
Supervising Deputy
Attorney General
September 20, 2021
(Additional counsel listed on the following pages)
32
PHILIP J. WEISER
Attorney General
Colorado
AARON D. FORD
Attorney General
Nevada
WILLIAM TONG
Attorney General
Connecticut
ANDREW J. BRUCK
Acting Attorney General
New Jersey
KATHLEEN JENNINGS
Attorney General
Delaware
HECTOR BALDERAS
Attorney General
New Mexico
CLARE E. CONNORS
Attorney General
Hawaii
LETITIA JAMES
Attorney General
New York
KWAME RAOUL
Attorney General
Illinois
ELLEN F. ROSENBLUM
Attorney General
Oregon
AARON M. FREY
Attorney General
Maine
JOSH SHAPIRO
Attorney General
Pennsylvania
BRIAN E. FROSH
Attorney General
Maryland
PETER F. NERONHA
Attorney General
Rhode Island
MAURA HEALEY
Attorney General
Massachusetts
THOMAS J. DONOVAN, JR.
Attorney General
Vermont
DANA NESSEL
Attorney General
Michigan
MARK R. HERRING
Attorney General
Virginia
KEITH ELLISON
Attorney General
Minnesota
ROBERT W. FERGUSON
Attorney General
Washington
33
JOSHUA L. KAUL
Attorney General
Wisconsin
KARL A. RACINE
Attorney General
District of Columbia
JOSHUA H. STEIN
Attorney General
North Carolina
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