Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

No. 19-1392

IN THE

Supreme Court of the United States

_______________

THOMAS E. DOBBS, 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 FOR CONSTITUTIONAL LAW SCHOLARS

LEE C. BOLLINGER, ERWIN CHEMERINSKY,

SHERRY F. COLB, MICHAEL C. DORF, DANIEL

FARBER, JOANNA L. GROSSMAN, LEAH LITMAN,

MARTHA MINOW, JANE S. SCHACTER, SUZANNA

SHERRY, GEOFFREY R. STONE, DAVID A.

STRAUSS, AND LAURENCE H. TRIBE

AS AMICI CURIAE SUPPORTING RESPONDENTS

_______________

JOSHUA S. LIPSHUTZ

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

ORIN SNYDER

Counsel of Record

KATHERINE MARQUART

STELLA CERNAK

LAUREN KOLE

MAYA NULAND

SARAH SEGAL

LAUREN MYERS

GRACE ASSAYE

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, NY 10166

(212) 351-4000

osnyder@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................5

I.

The Right to Decide to Have an Abortion

Is Well-Grounded in the Constitution. ............... 5

A. The Right to an Abortion Fits Within a

Fundamental Liberty Interest under the

Due Process Clause. ..................................... 7

B. History and Tradition, as Applied in

Accordance with the Court’s Due Process

Jurisprudence, Support Holding that the

Abortion Right Is Fundamental. ............... 11

II.

Stare Decisis Requires the Court to Reject

Any Abrogation of the Right to PreViability Abortion. ............................................. 18

A. Stare Decisis Is Tradition........................... 19

B. Stare Decisis Requires Upholding Roe and

Casey’s Viability Line, Which Is NonArbitrary, Workable, and Constitutionally

Principled.................................................... 21

CONCLUSION ..........................................................30

APPENDIX A: List of Amici Curiae ........................1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Baldwin v. New York,

399 U.S. 66 (1970) ................................................ 23

Bank of Columbia v. Okely,

17 U.S. (4 Wheat.) 235 (1819) ................................ 5

Ex parte Bollman,

8 U.S. (4 Cranch) 75 (1807) ................................. 20

Brown v. Mississippi,

297 U.S. 278 (1936) ................................................ 8

Citizens United v. FEC,

558 U.S. 310 (2010) .................................. 19, 20, 26

Cnty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) ................................................ 23

Cnty. of Sacramento v. Lewis,

523 U.S. 833 (1998) .............................................. 22

Cruzan ex rel. Cruzan v. Dir., Mo. Dep't of

Health,

497 U.S. 261 (1990) .............................................. 13

Daniels v. Williams,

474 U.S. 327 (1986) ................................................ 7

Duncan v. Louisiana,

391 U.S. 145 (1968) ........................................ 22, 29

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Eisenstadt v. Baird,

405 U.S. 438 (1972) ............................................ 5, 9

Louisiana ex rel. Elliott v. Jumel,

107 U.S. 711 (1883) .............................................. 20

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ............................................. 26

Gonzales v. Carhart,

550 U.S. 124 (2007) ........................................ 24, 25

Griswold v. Connecticut,

381 U.S. 479 (1965) ...................................... 5, 9, 12

Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197 (1991) .............................................. 27

Hurtado v. California,

110 U.S. 516 (1884) ................................................ 5

Jackson ex dem. St. John v. Chew,

25 U.S. (12 Wheat.) 153 (1827) ............................ 20

Jackson Women’s Health Org. v. Dobbs,

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

June Med. Servs. LLC v. Russo,

140 S. Ct. 2103 (2020) .......................................... 25

Kerry v. Din,

576 U.S. 86 (2015) .................................................. 7

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Lawrence v. Texas,

539 U.S. 558 (2003) ........................................ 10, 29

Loving v. Virginia,

388 U.S. 1 (1967) ............................................ 12, 29

Illinois ex rel. McCollum v. Bd. of Educ.,

333 U.S. 203 (1948) .............................................. 23

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................. 5, 8, 9, 14

Murray’s Les v. Hoboken Land &

Improvement Co.,

59 U.S. (18 How.) 272 (1856) ................................. 7

Obergefell v. Hodges,

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

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 20

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ................................................ 9

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

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

Poe v. Ullman,

367 U.S. 497 (1961) ......................................... 8, 13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .............................. 18, 19, 20

Rochin v. California,

342 U.S. 165 (1952) .................................... 8, 13, 14

Roe v. Wade,

410 U.S. 113 (1973) ...................................... passim

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ......................................... 28

Skinner v. Oklahoma ex. rel. Williamson,

316 U.S. 535 (1942) ................................................ 9

Stanley v. Georgia,

394 U.S. 557 (1969) .............................................. 17

Stenberg v. Carhart,

530 U.S. 914 (2000) ........................................ 24, 25

Troxel v. Granville,

530 U.S. 57 (2000) ................................................ 10

Turner v. Safley,

482 U.S. 78 (1987) .......................................... 12, 29

Union Pac. Ry. Co. v. Botsford,

141 U.S. 250 (1891) ................................................ 8

Vasquez v. Hillery,

474 U.S. 254 (1986) .............................................. 18

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Visa v. Osborn,

137 S. Ct. 289 (2016) .............................................. 3

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 12

Washington v. Glucksberg,

521 U.S. 702 (1997) ........................................ 13, 16

Washington v. Harper,

494 U.S. 210 (1990) ................................................ 8

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989) ............................................. 25

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) .................................... 24, 25

Winston v. Lee,

470 U.S. 753 (1985) ................................................ 8

Wolff v. McDonnell,

418 U.S. 539 (1974) .............................................. 22

Zorach v. Clauson,

343 U.S. 306 (1952) .............................................. 23

Other Authorities

Daniel A. Farber, Retained by the People:

The “Silent” Ninth Amendment and the

Constitutional Rights Americans Don’t

Know They Have (Basic Books 2007) .................... 8

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

David J. Garrow, How Roe v. Wade Was

Written, 71 Wash. & Lee L. Rev. 893

(2014) .................................................................... 22

Justice Lewis F. Powell, Jr., Memorandum

re: Abortion Cases (Nov. 29, 1972)................. 21, 22

Lauren Caruba, Despite Legal Victory, Whole

Women’s Health Shutters San Antonio

Abortion Clinic, San Antonio Express

News (Jan. 17, 2019) ............................................ 28

Robert H. Jackson, Decisional Law and Stare

Decisis, 30 A. B. A. J. 334 (1944) ......................... 18

The Rights Retained by the People: The

History and Meaning of the Ninth

Amendment (Randy E. Barnet ed., Cato,

vol. 1, 1989; George Mason Press, vol. 2,

1993) ....................................................................... 7

Sir Edward Coke, Institutes of the Laws of

England (1642) .................................................... 19

Suzanna Sherry, The Founders’ Unwritten

Constitution, 54 U. Chi. L. Rev. 1127

(1987) ...................................................................... 8

1 William Blackstone, Commentaries on the

Laws of England (1765) ................................... 8, 19

1

INTEREST OF AMICI CURIAE 1

Amici, listed in Appendix A, are constitutional law

scholars who teach and write in the field of constitutional law, including on limits on the regulation of

abortion. They share an interest in promoting the stability of this Court’s abortion jurisprudence as well as

its continuity with the constitutional law governing

related rights.

1 Pursuant to this Court’s Rule 37.6, amici state that this brief

was not authored in whole or in part by counsel for any party,

and that no person or entity other than amici, its members, or its

counsel made a monetary contribution intended to fund the preparation or submission of this brief. The parties have filed blanket

consents to the filing of amicus curiae briefs in accord with Supreme Court Rule 37.3.

2

SUMMARY OF ARGUMENT

For nearly 50 years, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects a woman’s fundamental

right to decide whether to have an abortion. See Roe

v. Wade, 410 U.S. 113, 153-54 (1973).2 Accordingly, in

Roe, the Court held that prior to viability, a State cannot ban abortion or impose an undue burden on a

woman’s right to an abortion but may impose other,

less burdensome restrictions. See ibid. This central

holding was reaffirmed in Planned Parenthood of

Southeastern Pennsylvania v. Casey, which made

clear that “[b]efore viability, the State’s interests are

not strong enough to support a prohibition of abortion

or the imposition of a substantial obstacle to the

woman’s effective right to elect the procedure.” 505

U.S. 833, 846, 879 (1992).

Despite this clear and repeatedly reaffirmed precedent, Mississippi enacted the Gestational Age Act,

which prohibits abortions performed at or after 15

weeks’ gestation, except in cases of medical emergency or severe fetal abnormalities. See Miss. HB

1510 (2018). As Mississippi acknowledges, the Act

prohibits abortions prior to viability. See e.g., Petrs.

Br. 5, 9, 38. The Fifth Circuit correctly held that the

Act is an unconstitutional ban on abortion prior to viability, contrary to the “unbroken line” of abortion

cases “dating to Roe v. Wade,” which “have established

(and affirmed, and re-affirmed) a woman’s right to

2 Amici acknowledge that transgender men and non-binary

persons can become pregnant and may need abortion care. We

refer here and elsewhere to “women” seeking abortion simply in

recognition that the majority of people seeking abortions are

women.

3

choose an abortion before viability.” Jackson Women’s

Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir.

2019), cert. granted in part, 209 L. Ed. 2d 748 (May

17, 2021).

Mississippi thereafter petitioned this Court for

writ of certiorari, requesting that the Court resolve a

“conflict” in its abortion precedent. See Pet. for Cert.

at 2-3, 5, 14-15, 33-34. In its opening brief, Mississippi departs from its petition, recognizing that no socalled “conflict” exists. Instead, Mississippi acknowledges that “[t]his case is made hard only because [of]

Roe v. Wade and Planned Parenthood of Southeastern

Pennsylvania v. Casey,” and then boldly requests that

this Court “overrule those decisions.” Petrs. Br. 1 (citations omitted).3

There are many reasons to uphold Roe and Casey

and to affirm the Fifth Circuit’s decision overturning

Mississippi’s flagrantly unconstitutional law. This

brief addresses two of them. First, this Court correctly held in Roe and Casey that a woman’s right to

an abortion is clearly rooted in and protected by the

Fourteenth Amendment’s Due Process Clause. See

Casey, 505 U.S. at 846; Roe, 410 U.S. at 153. Overturning that precedent would mark a stunning reversal of the Due Process jurisprudence this Court has

built over the past several decades, calling into question a host of other fundamental Due Process rights.

3 Mississippi’s departure from its petition for writ of certiorari

alone is grounds for dismissal of Mississippi’s writ “as improvidently granted.” See Visa v. Osborn, 137 S. Ct. 289, 289-90 (2016)

(dismissing writs where the “petitioners ‘chose to rely on a different argument’ in their merits briefing” after “[h]aving persuaded

[the Supreme Court] to grant certiorari” (alteration in original)).

4

It would also place individual women and their families at the mercy of state legislatures, denying them

the basic right to determine their reproductive destinies.

Second, stare decisis requires that the Court uphold Roe and Casey, and the viability line drawn

therein. Stare decisis is the cornerstone of the Court’s

jurisprudence and the bedrock of its legitimacy, and

there is no justifiable reason to abandon this principle

here. The viability line is logical and workable, and

one of many lines this Court has drawn to protect constitutional liberties.

For these reasons, among others, amici respectfully request that the Court reject Mississippi’s arguments and affirm the Fifth Circuit’s decision.

5

ARGUMENT

I.

The Right to Decide to Have an Abortion Is

Well-Grounded in the Constitution.

Mississippi’s efforts to portray this Court’s abortion rights jurisprudence as anomalous threaten the

very notion of limited government under the Constitution. The rights recognized under the Fourteenth

Amendment’s Due Process Clause—deeply rooted in

principles of liberty derived from the Magna Carta—

are “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right

and distributive justice.” Hurtado v. California, 110

U.S. 516, 527 (1884) (quoting Bank of Columbia v.

Okely, 17 U.S. (4 Wheat.) 235, 244 (1819)).

This Court has long held that fundamental liberties under the Due Process Clause consist of “freedom

from bodily restraint” and “to enjoy those privileges

long recognized … as essential to the orderly pursuit

of happiness by free men.” Meyer v. Nebraska, 262

U.S. 390, 399 (1923); see also Obergefell v. Hodges, 576

U.S. 644, 663-64 (2015) (citing Eisenstadt v.

Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965)). In Roe, the Court

recognized that this liberty interest “is broad enough

to encompass a woman’s decision whether or not to

terminate her pregnancy” and therefore, provides a

woman with a fundamental right to an abortion. 410

U.S. at 153-54. Casey reaffirmed this core principle,

holding that the decision to have an abortion, like

other fundamental Due Process liberty rights, “involv[es] the most intimate and personal choice[] a person may make in a lifetime, choices central to personal

dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment.” 505

6

U.S. at 851. It was in acknowledgement of this fundamental right, that Roe and Casey held that a State

cannot prohibit a woman from terminating her pregnancy at any point prior to the viability of the fetus.

Casey, 505 U.S. at 869-70; Roe, 410 U.S. at 163-64.

In a departure from its petition for certiorari, Mississippi explicitly asks the Court to overturn Roe and

Casey, arguing that the right to an abortion is “unmoored” from the Constitution and that “nothing in

text, structure, history, or tradition makes abortion a

fundamental right or denies States the power to restrict it.” Petrs. Br. 2, 13; see also id. at 13-16. Such

assertions are false. As this Court has held, Roe “invoked the reasoning and the tradition of the precedents … granting protection to substantive liberties of

the person” under the Due Process Clause, and Casey

was firmly grounded in the “dimension of personal liberty that Roe sought to protect.” Casey, 505 U.S. at

853; see also Roe, 410 U.S. at 153.

Further, Roe and Casey’s application of tradition

and history—unlike the narrow application of such

principles for which Mississippi advocates—is in accordance with the Court’s Due Process jurisprudence

for the past several decades. To reject this methodology and therefore, the holdings in Roe and Casey,

would call into question the Court’s Due Process precedent, undermining a host of other fundamental

rights long acknowledged by the Court.

7

A. The Right to an Abortion Fits Within a

Fundamental Liberty Interest under the

Due Process Clause.

For over a century, this Court has held that the

Due Process Clause contains a substantive component

that protects individuals against unwarranted governmental intrusion and “serves to prevent governmental power from being ‘used for purposes of oppression.’” Daniels v. Williams, 474 U.S. 327, 331-32

(1986) (quoting Murray’s Les v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277 (1856)).

During that time, this Court has repeatedly acknowledged that the Clause provides individuals with certain unenumerated, fundamental rights grounded in

liberty, a concept older than our Constitution itself.

See, e.g., Kerry v. Din, 576 U.S. 86, 91-92 (2015) (pointing to, for example, Blackstone’s description of rights

stemming from the Magna Carta, including “personal

security,” “consist[ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his

health, and his reputation,” and the “personal liberty

of individuals” “consist[ed] in the power of locomotion

… without imprisonment or restraint”) (alterations in

original) (quoting 1 W. Blackstone, Commentaries on

the Laws of England 125, 130 (1769)).4

“[T]he full scope of the liberty guaranteed by the

Due Process Clause cannot be found in or limited by

4 In acknowledging unenumerated rights, the Court also

abides by and gives effect to the plain meaning of the Ninth

Amendment. See Roe, 410 U.S. at 153 (citing Ninth Amendment); Casey, 505 U.S. at 848 (same); see also The Rights Retained by the People: The History and Meaning of the Ninth

Amendment (Randy E. Barnet ed., Cato, vol. 1, 1989; George Mason Press, vol. 2, 1993); Daniel A. Farber, Retained by the People:

The “Silent” Ninth Amendment and the Constitutional Rights

8

the precise terms” of the Constitution’s guarantees,

but instead “is a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Poe

v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

Based on such an understanding, this Court has

long held that this liberty interest under the Due Process Clause establishes a right to one’s own bodily integrity, free from unreasonable state intrusion. See

generally Union Pac. Ry. Co. v. Botsford, 141 U.S. 250,

251 (1891) (“No 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.”). States therefore may not, for instance, forcibly extract confessions to alleged crimes, see Brown

v. Mississippi, 297 U.S. 278 (1936); use a stomach

pump on an individual against his or her will, see Rochin v. California, 342 U.S. 165 (1952); compel an individual to undergo surgery to extract evidence, see

Winston v. Lee, 470 U.S. 753 (1985); or require prisoners to take antipsychotic drugs unless a set of particular conditions are met, see Washington v. Harper,

494 U.S. 210, 221-22 (1990). This Court also acknowledged in Meyer v. Nebraska, and in subsequent decisions, that the liberty interest protected by the Due

Process Clause includes “the right of the individual to

… establish a home and bring up children.” 262 U.S.

at 399 (holding that a state statute forbidding foreign

Americans Don’t Know They Have (Basic Books 2007); Suzanna

Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev.

1127 (1987).

9

language instruction to elementary school children

was unconstitutional).5

In Roe, the Court—guided by the meaning of the

liberty interest expounded in these prior decisions—

ultimately concluded that “the Fourteenth Amendment’s concept of personal liberty and restrictions

upon state action … is broad enough to encompass a

woman’s decision whether or not to terminate her

pregnancy.” 410 U.S. at 153 (connecting the abortion

right to the Court’s prior decisions regarding personal

privacy and liberty rights, including cases involving

marriage, procreation, contraception, family relationships, and child rearing and education). The Court

reaffirmed a woman’s fundamental right to decide

whether or not to terminate her pregnancy in Casey,

which similarly relied on the Court’s understanding

and application of the liberty interest through such

precedents. See 505 U.S. at 847-48, 851 (holding that

the decision whether to have an abortion, like the

5 See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35

(1925) (holding that a state law requiring every parent to send

their child to public school “unreasonably interfere[d] with the

liberty of parents and guardians to direct the upbringing and education of children under their control”); Skinner v. Oklahoma

ex. rel. Williamson, 316 U.S. 535, 541 (1942) (finding that the

liberty interest protects criminal offenders from state-mandated

sterilization on the basis that the ability to procreate is “one of

the basic civil rights of man,” a “basic liberty” with respect to

which one would be “forever deprived,” if such a law were upheld); Griswold, 381 U.S. at 482 (holding that a law forbidding

married couples from using contraceptives infringed on the “intimate relation of husband and wife and their physician’s role in

one aspect of that relation” and thereby “invade[d] the area of

protected freedoms” under the Fourteenth Amendment); Eisenstadt, 405 U.S. at 453 (upholding “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”).

10

right to make “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” is a fundamental

right rooted in the Due Process Clause, as it is a matter of “personal liberty which the government may not

enter”).

Nor has this Court treated the abortion right as

aberrational. Following Casey, the Court has continued to hold that the Due Process Clause’s liberty interest provides a basis for fundamental rights in areas

of personal, family decision-making and one’s bodily

autonomy. See, e.g., Lawrence v. Texas, 539 U.S. 558,

578 (2003) (recognizing a “right to liberty under the

Due Process Clause [that] gives [individuals] the full

right to engage in [private sexual conduct in one’s

home] without intervention of the government”);

Troxel v. Granville, 530 U.S. 57, 65 (2000) (invalidating a statute allowing any person to petition the court

for child visitation as violative of the Due Process

rights of petitioner mother, on the basis that “[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty

interests recognized by this Court”); see also Obergefell, 576 U.S. at 675 (holding that “the right to marry

is a fundamental right inherent in the liberty of the

person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of

the same-sex may not be deprived of that right and

that liberty”).

Such decisions all further reaffirm that “the reasoning in Roe relating to the woman’s liberty” firmly

establishes that a woman has a right to an abortion.

Casey, 505 U.S. at 852-53.

11

B. History and Tradition, as Applied in

Accordance with the Court’s Due Process

Jurisprudence, Support Holding that the

Abortion Right Is Fundamental.

1. Mississippi recognizes that the “Constitution … protect[s] certain liberty interests” in categories such as “marriage, procreation, contraception,

family relationships, child rearing, and education,”

Casey, 505 U.S. at 851, but argues that “those interests need grounding in text, structure, history, or tradition.” Petrs. Br. 16. Accordingly, Mississippi argues

that “although certain liberty interests in these categories can claim the backing of history and tradition,

a right to abortion cannot,” claiming that “history

shows that when the Fourteenth Amendment was ratified—and for a century thereafter—the public would

have understood that it left States free to legislate

comprehensively on abortion.” Ibid.

The rigid use of history and tradition for which

Mississippi advocates is contrary to this Court’s approach to Due Process liberty interests in the vast majority of the decisions it has reached over the course of

the last several decades. For one, the Court has rejected Mississippi’s position that the specific rights

the Due Process Clause protects are finite and definitively determined as of the time of the Fourteenth

Amendment’s ratification. As Casey acknowledged,

“[i]t is … tempting” “to suppose that the Due Process

Clause protects only those practices, defined at the

most specific level, that were protected against government interference by other rules of law when the

Fourteenth Amendment was ratified.” 505 U.S. at

847. “But such a view would be inconsistent with our

law.” Ibid. If this were not the case, a whole host of

12

rights including interracial marriage and freedom of

religious expression would be called into question.6

Nor does this Court, when looking to history and

tradition as part of the determination as to whether

the Due Process Clause provides for a certain liberty

right, merely look to whether the specific protection in

question—for example, the right to have an abortion—has been protected or restricted through the existence of state legislation for any particular period of

time during our nation’s history, as Mississippi suggests. Petrs. Br. 12-13 (arguing that history and tradition do not support a right to abortion on the basis

that a number of state laws in existence between 1849

and 1868 had restricted abortion). Instead, the Court

is “guided by many of the same considerations relevant to analysis of other constitutional provisions that

set forth broad principles rather than specific requirements.” Obergefell, 576 U.S. at 664 (emphasis added).

Such an analysis therefore recognizes that the “outlines of the ‘liberty’ specially protected by the Fourteenth Amendment,” are “perhaps not capable of being fully clarified,” but which may at least be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal

6 See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,

637-42 (1943) (Due Process right to freedom of speech and religious worship); Loving v. Virginia, 388 U.S. 1, 12 (1967) (Due

Process right to interracial marriage); Turner v. Safley, 482 U.S.

78, 94-99 (1987) (inmates’ Due Process right to marry); see also

Griswold, 381 U.S. at 482 (“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to

educate a child in a school of the parents' choice—whether public

or private or parochial—is also not mentioned. Nor is the right

to study any particular subject or any foreign language. Yet the

First Amendment has been construed to include certain of those

rights.”).

13

tradition.” Washington v. Glucksberg, 521 U.S. 702,

722 (1997).

For example, in Cruzan, when this Court

acknowledged that competent individuals have a liberty interest in refusing unwanted, life-sustaining

medical treatment under the Due Process Clause, the

Court did not simply ask whether state legislatures

had demonstrated an interest in protecting such a

right through the passage of laws permitting individuals to refuse such treatment, but instead analyzed,

inter alia, how the broader right of bodily integrity

was historically treated under the common law tort of

battery and through the development of the informed

consent doctrine, in addition to evaluating the Court’s

prior decisions involving the broader right to bodily

integrity under the Due Process Clause. See Cruzan

ex rel. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S.

261, 269-79 (1990).

Further, Mississippi’s proposed history-only approach to recognition of Due Process rights runs contrary to the Court’s acknowledgement time and again

that “the concept of due process of law is not final and

fixed,” as “these limits are derived from considerations that are fused in the whole nature of our judicial

process.” Rochin, 342 U.S. at 170; see also Obergefell,

576 U.S. at 663-64 (“The identification and protection

of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, ‘has not been reduced to any formula.’”) (quoting Poe, 367 U.S. at 542 (Harlan, J., dissenting)). Instead, this evaluation that is “duly mindful of reconciling the needs both of continuity and of

change in a progressive society.” Rochin, 342 U.S. at

172; see Obergefell, 576 U.S. at 664 (“History and tradition guide and discipline this inquiry but do not set

14

its outer boundaries. . . . That method respects our

history and learns from it without allowing the past

alone to rule the present.”).

For decades, the Court has employed a similar approach when evaluating whether the Due Process

Clause provides for particular liberty rights.7 To

adopt Mississippi’s rigid view of history and tradition

would require a marked departure from this Due Process jurisprudence, calling into question not only Roe

and Casey, but the Court’s other decisions regarding

fundamental Due Process liberty interests.

2. An application of history and tradition that is

consistent with the Court’s approach to evaluating

fundamental Due Process liberty rights, supports

finding a woman has a fundamental Due Process right

to an abortion.

In Roe, the Court surveyed the history of attitudes

regarding abortion, dating back to ancient Greece and

prohibitions of the practice at common law and under

7 See, e.g., Meyer, 262 U.S. at 400-01 (acknowledging the “supreme importance” of education and acquisition of knowledge

when holding a ban against foreign language instruction to public school children was unconstitutional under the Due Process

Clause); Rochin, 342 U.S. at 170-73 (applying the general Due

Process principle that convictions cannot offend a “sense of justice,” and specific applications of that principle—including cases

holding that otherwise relevant and credible evidence cannot be

obtained by improper means—in determining that the government cannot forcibly extract evidence from one’s stomach); Obergefell, 576 U.S. at 665-71 (rejecting a narrow view of the right to

marry in the context of determining whether this right extends

to same-sex marriage, pointing to the Court’s precedents defining the right to marry more broadly by “identif[ying] essential

attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond”).

15

English statutory law, ultimately finding that historical treatment of abortion supports a fundamental

right to an abortion under the Due Process Clause.

See 410 U.S. at 132-40 (“It is thus apparent that at

common law, at the time of the adoption of our Constitution, and throughout the major portion of the

19th century, abortion was viewed with less disfavor

than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy

than she does in most States today.”). The Court also,

as mentioned supra, analyzed the abortion right

within the broader context of the right to privacy and

the liberty interest under the Due Process Clause articulated in the Court’s prior decisions, which it found

supported the existence of the abortion right. See id.

at 153.

In Casey, the Court similarly tied the abortion

right to broader liberty interests protected in prior decisions by the Court, in particular, “the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about

whether or not to beget or bear a child,” as well as this

Court’s decisions regarding “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.

As this Court explained, this is because a woman’s

choice to have an abortion, just like these other matters, “involv[es] the most intimate and personal

choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are

central to the liberty protected by the Fourteenth

Amendment.” Id. at 851.

16

As such, Roe and Casey are entirely consistent

with the Court’s approach to evaluating whether history and tradition support finding a particular Due

Process liberty right is fundamental under the Constitution. See Glucksberg, 521 U.S. at 722 (citing Casey,

among other cases); Obergefell, 576 U.S. at 663-64.

Calling this fundamental right into question calls into

serious question many other fundamental Due Process rights long recognized by this Court that were decided using similar analyses and which are rooted in

the same liberty interests that underlie Roe and Casey.

For example, stripping a woman of her fundamental right to decide to have an abortion would therefore

mean that the State, from the moment a woman’s

pregnancy begins, would be able to regulate the

woman’s body, the pregnancy, or her medical decisions, whenever the State is able to articulate how the

law is “rationally” related to a legitimate state interest.8 This is directly at odds with an entire line of

cases holding that the broader liberty interest in one’s

bodily integrity supports one’s ability to make his or

her own medical decisions and decisions regarding

family planning. See Section I.A, supra. And as Casey

acknowledged, “[i]f indeed the woman’s interest in deciding whether to bear and beget a child had not been

8 Mississippi advocates for precisely this outcome, see Petrs.

Br. 36-38, ignoring that the State’s competing interest in a

woman’s pregnancy can be balanced with that of the woman’s

without eliminating her fundamental right to decide to have an

abortion, see Casey, 505 U.S. at 846 (“Roe’s essential holding, the

holding we reaffirm … [is that] the State’s interests are not

strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to

elect the procedure.”).

17

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.” 505 U.S. at 859; see id. at

915 (Stevens, J., concurring in part and dissenting in

part) (“The Constitution would be equally offended by

an absolute requirement that all women undergo

abortions as by an absolute prohibition on abortions.”).

Given that this Court’s “obligation is to define the

liberty of all,” this very notion of liberty is at stake if

the Court does not hold it extends to the liberty of a

woman to make personal choices about her body and

destiny. Casey, 505 U.S. at 850. Mississippi, by virtue

of arguing that a woman’s right to an abortion is not

fundamental and should therefore be subject to the

least stringent level of judicial review at any point in

her pregnancy, asks that the Court in essence, leave

it entirely to the State to decide when an abortion is

the right decision for a woman. See Petrs. Br. 36-37.

However, “[o]ur whole constitutional heritage rebels

at the thought of giving government the power to control men's minds,” Stanley v. Georgia, 394 U.S. 557,

565 (1969)—“[t]he same holds true for the power to

control women's bodies,” Casey, 505 U.S. at 915 (Stevens, J., concurring in part and dissenting in part).

The Court should therefore reject Mississippi’s argument and reaffirm its holding in Roe and Casey that

a woman has a fundamental liberty right to decide

whether to have an abortion under the Fourteenth

Amendment’s Due Process Clause, with respect to

which the State cannot unduly interfere prior to viability.

18

II. Stare Decisis Requires the Court to Reject

Any Abrogation of the Right to Pre-Viability

Abortion.

Stare decisis is essential to the “integrity of our

constitutional system of government, both in appearance and in fact” as it “permits society to presume that

bedrock principles are founded in the law rather in

proclivities of individuals.” Vasquez v. Hillery, 474

U.S. 254, 265-66 (1986); see also Casey, 505 U.S. at

854 (“[T]he very concept of the rule of law underlying

our own Constitution requires such continuity over

time that a respect for precedent is, by definition, indispensable.”). To “overrule an important precedent

is serious business.” Robert H. Jackson, Decisional

Law and Stare Decisis, 30 A. B. A. J. 334 (1944). To

do so, the precedent “must be egregiously wrong as a

matter of law.” Ramos v. Louisiana, 140 S. Ct. 1390,

1414 (2020) (Kavanaugh, J., concurring in part) (emphasis added). Further, the Court must consider

whether the precedent has “caused significant negative jurisprudential or real-world consequences” and

whether overruling such precedent would “unduly upset reliance interests.” Id. at 1414-15.

In Casey, the Court understood and considered

these factors, and correctly held fast to the dictates of

stare decisis. Indeed, Casey upheld both (i) the liberty

right at issue in Roe, reaffirming Roe’s holding that

the fundamental right to abortion is protected by the

Fourteenth Amendment’s Due Process Clause; and (ii)

the viability line set forth in that decision, which sits

at the very core of this liberty right. Casey, 505 U.S.

at 869-71. As the Court recognized, overruling Roe

would not only result in “an unjustifiable result under

principles of stare decisis,” but it would also “seriously

weaken the Court’s capacity to exercise the judicial

19

power and to function as the Supreme Court of a Nation dedicated to the rule of law.” Id. at 853, 865

(“[T]he reservations any of us may have in reaffirming

the central holding of Roe are outweighed by the explication of individual liberty we have given combined

with the force of stare decisis.”). Whether “precedent

on precedent” or just plain precedent, stare decisis requires upholding Casey, and Roe along with it.

As discussed herein, Mississippi offers no justifiable reason to overturn the constitutionally principled

and workable holdings in Roe and Casey, and take

down the cornerstone of this nation’s jurisprudence—

stare decisis—therewith. See Ramos, 140 S. Ct. at

1411 (Kavanaugh, J., concurring in part) (extolling

the importance of showing “respect for the accumulated wisdom of judges who have previously tried to

solve the same problem”); Citizens United v. FEC, 558

U.S. 310, 377 (2010) (Roberts, C.J., concurring) (“Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.”).

The Court should reject Mississippi’s arguments and

decline to overturn Roe and Casey.

A. Stare Decisis Is Tradition.

In asking the Court to overturn Roe and Casey,

Mississippi argues that abortion rights are neither

supported by history nor tradition. Petrs. Br. 1-2, 12.

But it is stare decisis that embodies both those concepts and requires upholding Roe and Casey.

Stare decisis has been a bedrock principle of legal

jurisprudence since the founding of this nation. See 1

William Blackstone, Commentaries on the Laws of

England *69 (1765); see also Sir Edward Coke, Institutes of the Laws of England *51 (1642). Even in its

earliest jurisprudence, the Court relied on precedent

20

drawn from cases decided immediately after the formation of the nation to support its decision-making.

See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 87-88

(1807); see also Louisiana ex rel. Elliott v. Jumel, 107

U.S. 711, 746 (1883); Jackson ex dem. St. John v.

Chew, 25 U.S. (12 Wheat.) 153, 166 (1827). As Chief

Justice Marshall explained in Bollman, “[s]tare decisis is one of [U.S. law’s] favourite and most fundamental maxims” because it “exclude[s] all possibility of improper bias” and mandates that “precedent is … more

to be relied on than my judgment.” 8 U.S. (4 Cranch)

at 87-88.

The Court has continued to acknowledge and rely

upon this historical understanding of stare decisis as

a cornerstone of its modern jurisprudence. See, e.g.,

Ramos, 140 S. Ct. at 1411 (Kavanaugh, J., concurring)

(citing Blackstone and the Federalist Papers for historical support on the importance of stare decisis as

meaning “to stand by the thing decided and not disturb the calm”). In doing so, the Court has repeatedly

and emphatically extolled the virtues of stare decisis

in promoting evenhandedness and administrability,

demonstrating the legitimacy of the courts, and fostering reliance on judicial decisions. See ibid. (“This

Court has repeatedly explained that 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.’”) (quoting

Payne v. Tennessee, 501 U.S. 808, 827 (1991)); see also

Citizens United, 558 U.S. at 377 (Roberts, C.J., concurring) (“Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of judicial function.”). Applying stare decisis and upholding Casey

and Roe best pays homage to history and tradition—

21

not overturning these precedents as Mississippi

presses this Court to do.

B. Stare Decisis Requires Upholding Roe

and Casey’s Viability Line, Which Is NonArbitrary,

Workable,

and

Constitutionally Principled.

1. The viability line already reflects this Court’s

thoughtful balancing of a woman’s fundamental liberty interest in her decision to have an abortion with

a State’s interest in fetal life. As discussed supra, a

woman’s fundamental right to an abortion is entrenched in the Due Process Clause’s guarantee of liberty. But the Court has recognized that a State may

have a competing interest in potential human life. To

resolve this conflict, a line had to be drawn. Specifically, in Roe and Casey, the Court had to decide when

the State’s interest in potential life is so strong that it

could overcome a women’s liberty to choose whether

to carry a child to term—an undertaking fraught with

“anxieties, … physical constraints, [and] pain that

only [the woman] must bear.” Casey, 505 U.S. at 852.

The Court logically drew that line at viability—

the time at which “there is a realistic possibility of

maintaining and nourishing a life outside the womb,

so that the independent existence of the second life

can in reason and all fairness be the object of state

protection that now overrides the rights of the

woman.” Casey, 505 U.S. at 870; see also Justice

Lewis F. Powell, Jr., Memorandum re: Abortion Cases

1 (Nov. 29, 1972), in Harry A. Blackmun Papers, Library of Congress, Manuscript Division, Box 151,

Folder 4 [hereinafter Powell Memorandum] (“I have

wondered whether drawing the line at ‘viability’—if

we conclude to designate a particular point of time—

would not be more defensible in logic and biologically

22

than perhaps any other single time.”).9

Mississippi argues that the viability line is “arbitrary.” Petrs. Br. 44. But the Court in Casey correctly

refused to overturn Roe based on cries of arbitrariness: “Any judicial act of line-drawing may seem

somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care.” Casey, 505 U.S. at

870. The Court’s reaffirmation of the viability line in

Casey is in accordance with the Court’s recognition,

time and again, that to enforce certain constitutional

guarantees, “it is necessary to draw a line.” Duncan

v. Louisiana, 391 U.S. 145, 160 (1968). These lines

protect “the individual against arbitrary action of government,” which is “[t]he touchstone of due process.”

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)

(alteration in original) (quoting Wolff v. McDonnell,

418 U.S. 539, 558 (1974)).

Mississippi suggests that “difficult line-drawing”

can only be properly undertaken by legislatures.

Petrs. Br. 41. But judicial line-drawing is integral:

without it, States would be left to interpret nebulous

constitutional standards without concrete guidance,

leading to a multitude of challenges to state practices,

and forcing federal judges to effectively make legislative judgments on a case-by-case basis.10 Judicial

9 See also David J. Garrow, How Roe v. Wade Was Written, 71

Wash. & Lee L. Rev. 893, 912 (2014) (“I rather agree with the

view that the interest of the state is clearly identifiable, in a manner which would be generally understood, when the fetus becomes viable. At any point in time prior thereto, it is more difficult to justify a cutoff date.”) (quoting Powell Memorandum, at

2).

10 Mississippi’s alternative request that the Court jettison viability as the point where States cannot prohibit abortions, see

Petrs. Br. 38-45, explicitly invites the Court to draw a new judicial line to decide that question.

23

line-drawing is particularly critical when, as here,

constitutionally protected liberties are at stake. As

this Court has explained, “[i]t is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the

other. . . . That theorem, however, assumes a state of

affairs in which the choice does not intrude upon a

protected liberty.” Casey, 505 U.S. at 851 (citations

omitted).

Indeed, the Court engages in the essential exercise of line drawing to strike a balance between competing interests in many other contexts outside of

abortion. For instance, in considering pretrial detention following a warrantless arrest, the Court has held

that a “prompt” judicial determination of probable

cause is one made within 48 hours. Cnty. of Riverside

v. McLaughlin, 500 U.S. 44, 56 (1991). Under the

Sixth Amendment, the Court has decided that a crime

punishable by more than six months in prison is not a

petty offense but a serious crime implicating the right

to a jury trial. See Baldwin v. New York, 399 U.S. 66,

68-74 (1970). And under First Amendment jurisprudence, the Court forbid the release of public school

students to enroll religious class on school grounds, Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203

(1948), but permitted the release of public school students from school attendance to attend religious classes off school grounds, Zorach v. Clauson, 343 U.S.

306 (1952). The Court thus drew the line at religious

instruction outside of public school classrooms. In

short, line-drawing is a workable and necessary judicial function and is particularly essential here, where

a constitutional liberty is at stake.

2. Stare decisis requires that the Court uphold

Roe and its progeny and retain the viability line set

24

forth in Roe, reaffirmed by Casey, and time and again

since.

As the Court explained in Casey, a woman’s right

to a pre-viability abortion is “the most central principle of Roe v. Wade” and sits at the very core of the liberty right recognized therein. Casey, 505 U.S. at 871;

Roe, 410 U.S. at 163 (stating that, prior to viability,

doctors and patients are “free to determine, without

regulation by the State,” that abortion is the appropriate course of action). This is “a rule of law and a component of liberty [the Court] cannot renounce.” Casey,

505 U.S. at 871. The Court has repeatedly held the

line at viability even “in the face of great opposition.”

Id. at 870; see Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292, 2320 (2016) (“[W]e now use ‘viability’

as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated

to maternal health.”); Gonzales v. Carhart, 550 U.S.

124, 146 (2007) (“Before viability, a State ‘may not

prohibit any woman from making the ultimate decision to terminate her pregnancy.’” (quoting Casey, 505

U.S. at 879)); Stenberg v. Carhart, 530 U.S. 914, 921

(2000) (declining to “revisit” the holding that “before

viability … the woman has a right to choose to terminate her pregnancy” (omission in original; internal

quotation marks and citation omitted)).

In Casey, the Court underwent a detailed stare decisis analysis, and ultimately concluded that “the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided.”

Casey, 505 U.S. at 860. None of the facts present at

the time of Casey justified forsaking stare decisis by

abandoning the viability line set forth in Roe, nor are

any such facts present today.

25

For many years, the Court has had numerous opportunities to overturn the Roe and Casey right to

abortion or to alter or abrogate the viability line. At

each turn, it has refused to do so. Indeed, the Court

has upheld the right to abortion regardless of the

makeup of the Court or the continued public debate

over the morality of abortion. See, e.g., Stenberg, 530

U.S. at 920-21 (“[A]ware that constitutional law must

govern a society whose different members sincerely

hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of

a generation, has determined and then redetermined

that the Constitution offers basic protection to the

woman’s right to choose.”); Webster v. Reprod. Health

Servs., 492 U.S. 490, 529 (1989) (O’Connor, J., concurring in part and concurring in the judgment)

(“[V]iability remains the ‘critical point.’” (citation

omitted)).

As the Court has recognized, Casey and the viability line recognized therein “in short, struck a balance.

The balance was central to its holding. We now apply

its standard to the cases at bar.” Gonzales, 550 U.S.

at 146; see also June Med. Servs. LLC v. Russo, 140 S.

Ct. 2103, 2120-21 (2020) (rejecting the application of

“a different, less-deferential standard” and “apply[ing] the constitutional standards set forth in our

earlier abortion-related cases, and in particular in Casey and Whole Woman’s Health”); Hellerstedt, 136 S.

Ct. at 2309 (overruling the lower court where the “articulation of the relevant standard [under Casey was]

incorrect”).

Moreover, as in Casey, “no change in Roe’s factual

underpinning has left its central holding obsolete, and

none supports an argument for overruling it.” Casey,

26

505 U.S. at 860. This Court has repeatedly found that

only “dramatic” changes in factual circumstances may

support a departure from precedent. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 534 (2009)

(Thomas, J., concurring). In fact, changing circumstances can only outweigh the force of stare decisis

when “facts have so changed, or [have] come to be seen

so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U.S. at

855. If the principle of stare decisis is “to do any meaningful work in supporting the rule of law, it must at

least demand a significant justification, beyond the

preferences of [the sitting] Justices, for overturning

settled doctrine.” Citizens United, 558 U.S. at 408-09

(Stevens, J., concurring in part and dissenting in

part).

At bottom, the Court in Casey understood that

overruling Roe would only be based on a change in the

Court’s composition. 505 U.S. at 864 (“[T]he Court

could not pretend to be reexamining the prior law with

any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.”).

And overruling prior law solely based on this “justification” would run afoul of the Court’s longstanding

view that it cannot overrule precedent on “the belief

that a prior case was wrongly decided.” Ibid. Given

the careful reaffirmance of Roe in Casey, this Court’s

obligation to “define the liberty of all, not to mandate

[its] own moral code” is even more important now than

when the Court decided Casey. Id. at 850. Overturning the right to abortion would amount to a “surrender

to political pressure” and would “subvert the Court’s

legitimacy beyond any serious question.” Id. at 867.

27

Further, “[s]tare decisis has added force” when, as

here “the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a

previous decision, for in this instance overruling the

decision would dislodge settled rights and expectations or require an extensive legislative response.”

Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202

(1991). The protection of the fundamental right to obtain an abortion prior to viability has profoundly impacted the educational and social lives of men and

women for half a century and throughout multiple

generations. Calling a woman’s right to terminate a

pre-viability pregnancy into question would upend

lives across the country, affecting everything from reliance on the availability of an abortion in the face of

an unplanned pregnancy to broader life decisions

about professional pursuits and how to structure one’s

family and divide labor between spouses. See Mark

Tushnet, The New Constitutional Order 91-92 (2003)

(explaining that Roe is “so embedded in the nation’s

culture that overruling it would disrupt understandings not about abortion alone, but about the role of

women in society”).

Mississippi claims that women have now so progressed in the workplace that abortion is no longer

needed to secure women’s professional advancement.

Petrs. Br. 4. Yet the right to access a legal abortion

prior to viability is a critical piece of what has allowed

women to make strides toward equality with their

male counterparts both in the workplace and at home.

Repudiating that right would jeopardize the progress

that has been made. It would make achieving equality in the workplace and at home more difficult for future generations of women, as well as those women

who are currently of reproductive age.

28

Mississippi’s unfounded complaints about arbitrariness of the viability line ring hollow considering

the lawlessness and confusion that would follow overturning Roe and Casey, as the State implores this

Court to do. Such a reversal would lead to inconsistent directives and would leave women and indeed,

the general public, in the dark about the state of the

law and undermine our “common law tradition … to

ensure fair notice before any deprivation of life, liberty, or property could take place.” Sessions v. Dimaya, 138 S. Ct. 1204, 1228 (2018) (Gorsuch, J., concurring in part and concurring in the judgment).

The chaos that has ensued following unsuccessful

challenges to Roe and Casey is a harbinger of the instability that would arise if the Court overturns these

cases. States have drawn new lines constricting a

woman’s right to abortion, further disturbing settled

expectations that the line is drawn at viability. Clinics have closed in the face of legal challenges, never to

reopen, even after prevailing in court. See, e.g., Lauren Caruba, Despite Legal Victory, Whole Women’s

Health Shutters San Antonio Abortion Clinic, San Antonio Express News (Jan. 17, 2019). Eliminating Roe

and Casey would only lead to further instability as the

courts would be called upon to opine on a case-by-case

basis whether the particular line in the sand drawn

by a specific state regulation of abortion complies with

the Constitution. This ad-hoc line-drawing would

lead to further instability, as women scrambling

across state borders to access abortion would have little guidance when trying to determine when in their

pregnancies they could obtain an abortion in any

given State.

29

3. Protecting constitutional rights by prohibiting

categorical bans—as Roe and Casey have done in prohibiting abortion bans before viability while permitting other, less intrusive restrictions—is a practice

that has been frequently employed by this Court. As

to the constitutional right to marriage, for example,

the Court has held that States may not categorically

ban interracial marriages, prisoner marriages, or

same-sex marriages. See Loving, 388 U.S. at 11 (invalidating bans on interracial marriage because there

is “patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [racial] classification”); Turner, 482 U.S. at 99

(invalidating bans on prisoner marriages because the

“almost complete ban on the decision to marry is not

reasonably related to legitimate penological objectives”); Obergefell, 576 U.S. at 681 (invalidating samesex marriage ban after determining that “there is no

lawful basis for a State to refuse to recognize a lawful

same-sex marriage performed in another State on the

ground of its same-sex character”). The Court also

struck down a Texas statute that categorically prohibited consensual same-sex sexual intercourse, holding

that no legitimate state interest could justify the statute’s intrusion into individuals’ “vital interests in liberty and privacy protected by the Due Process Clause

of the Fourteenth Amendment.” Lawrence, 539 U.S.

at 564, 578.

The Court’s obligation to draw lines, often close

and difficult ones, is unavoidable and “cannot be

wholly satisfactory, for it requires attaching different

consequences to events which, when they lie near the

line, actually differ very little.” Duncan, 391 U.S. at

160-61. Even if Mississippi is unsatisfied with the

Court’s viability rule, it provides needed guidance to

the States, which must operate within the bounds of

30

the Constitution, and to women and their families,

who must rely on settled law regarding abortion to

guide important reproductive decisions they may

make.

Finally, even if the point at which this Court drew

a line between a women’s liberty interest and the

State’s interest in fetal life were “arbitrary” as Mississippi contends—and it is not—“[l]iberty must not be

extinguished for want of a line that is clear. . . . Any

judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated

with great care.” Casey, 505 U.S. at 869-70. Indeed,

when the Court must draw a line—and particularly

when that line embodies constitutional decrees settling an issue of public dispute—that line carries a

“rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation.”

Id. at 867. That rare precedential force, or even ordinary precedential force, requires upholding Roe and

Casey and rejecting Mississippi’s call to overturn the

viability line.

CONCLUSION

For the reasons stated above and in Respondents’

brief, the judgment of the court of appeals should be

affirmed.

31

Respectfully submitted.

JOSHUA S. LIPSHUTZ

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

ORIN SNYDER

Counsel of Record

KATHERINE MARQUART

STELLA CERNAK

LAUREN KOLE

MAYA NULAND

SARAH SEGAL

LAUREN MYERS

GRACE ASSAYE

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, NY 10166

(212) 351-4000

osnyder@gibsondunn.com

Counsel for Amici Curiae

September 20, 2021

1a

APPENDIX A

LIST OF AMICI CURIAE 1

Lee C. Bollinger, President, Columbia

University and Seth Low Professor of the University.

Erwin Chemerinsky, Dean and Jesse H. Choper

Distinguished Professor of Law, University of

California at Berkeley School of Law.

Sherry F. Colb, C.S. Wong Professor of Law,

Cornell Law School.

Michael C. Dorf, Robert S. Stevens Professor of

Law, Cornell Law School.

Daniel Farber, Sho Sato Professor of Law,

University of California at Berkeley School of Law.

Joanna L. Grossman, Ellen K. Solender

Endowed Chair in Women and the Law and Professor

of Law, Southern Methodist University Dedman

School of Law.

Leah Litman, Assistant Professor of Law,

University of Michigan Law School.

Martha Minow, 300th Anniversary University

Professor, Harvard Law School.

Jane S. Schacter, William Nelson Cromwell

Professor of Law, Stanford Law School.

Suzanna Sherry, Herman O. Loewenstein

Professor of Law, Vanderbilt Law School.

1

Amici appear in their individual capacities; institutional

affiliations are listed here for identification purposes only.

2a

Geoffrey R. Stone, Edward H. Levi

Distinguished Service Professor of Law, University of

Chicago Law School.

David A. Strauss, Gerald Ratner Distinguished

Service Professor of Law, University of Chicago Law

School.

Laurence H. Tribe, Carl M. Loeb University

Professor, Professor of Constitutional Law, Harvard

Law School.