Petition for Writ of Certiorari — Penny Clarkston, Petitioner v. Whole Woman's Health, et al.
Supreme Court briefOct 21, 2021
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No. _______
In the Supreme Court of the
United States
PENNY CLARKSTON, CROSS-PETITIONER
v.
WHOLE WOMAN’S HEALTH, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CONDITIONAL CROSS-PETITION
HEATHER GEBELIN HACKER
Counsel of Record
HACKER STEPHENS LLP
108 Wild Basin Rd., Suite 250
Austin, Texas 78746
heather@hackerstephens.com
(512) 399-3022
I
QUESTION PRESENTED
Whether the Court should overrule Roe v. Wade, 410
U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
II
PARTIES TO THE PROCEEDING
Respondent and cross-petitioner Penny Clarkston is
a defendant-appellant in the court of appeals.
Respondents Judge Austin Reeve Jackson, Mark Lee
Dickson, Stephen Brint Carlton, Katherine A. Thomas,
Cecile Erwin Young, Allison Vordenbaumen Benz, and
Ken Paxton are defendants-appellants in the court of appeals.
Petitioners Whole Woman’s Health; Alamo City Surgery Center, P.L.L.C. d/b/a Alamo Women’s Reproductive Services; Brookside Women’s Medical Center, P.A.
d/b/a Brookside Women’s Health Center and Austin
Women’s Health Center; Houston Women’s Clinic; Houston Women’s Reproductive Services; Planned Parenthood Center for Choice; Planned Parenthood of Greater
Texas Surgical Health Services; Planned Parenthood
South Texas Surgical Center; Southwestern Women’s
Surgery Center; Whole Woman’s Health Alliance; Allison Gilbert, M.D.; Bhavik Kumar, M.D.; The Afiya Center; Frontera Fund; Fund Texas Choice; Jane’s Due Process; Lilith Fund for Reproductive Equity; North Texas
Equal Access Fund; Reverend Erika Forbes; Reverend
Daniel Kanter; and Marva Sadler are plaintiffs-appellees
in the court of appeals.
A corporate disclosure statement is not required because Ms. Clarkston is not a corporation. See Sup. Ct. R.
29.6.
III
STATEMENT OF RELATED CASES
• Whole Woman’s Health, et al. v. Judge Austin
Reeve Jackson, et al., No. 1:21-cv-00616-RP, U.S. District Court for the Western District of Texas. Order
denying defendants’ motions to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) entered August 25, 2021.
• In re Clarkston, No. 21-50708, U.S. Court of Appeals for the Fifth Circuit. Order denying petition for
writ of mandamus entered August 13, 2021.
• Whole Woman’s Health et al. v. Judge Austin
Reeve Jackson, et al., No. 21-50792, U.S. Court of Appeals for the Fifth Circuit. Appeal docketed August 25,
2021, Appellants’ opening briefs filed October 13, 2021,
oral argument scheduled for the week of December 6,
2021.
• Whole Woman’s Health et al. v. Judge Austin
Reeve Jackson, et al., No. 21A24, United States Supreme Court, Emergency Application to Justice Alito
for Writ of Injunction and, in the Alternative, to Vacate
Stays of District Court Proceedings, application denied
September 1, 2021.
• Whole Woman’s Health, et al. v. Austin Reeve
Jackson, et al., No. 21-463, United States Supreme
Court. Petition for writ of certiorari before judgment
filed September 23, 2021; response requested by October 21, 2021.
IV
TABLE OF CONTENTS
Page
Question presented .......................................................... I
Parties to the proceeding .............................................. II
Statement of related cases ........................................... III
Table of authorities ......................................................... V
Opinions below ................................................................. 1
Jurisdiction ....................................................................... 2
Constitutional and statutory provisions involved .......... 2
Statement ......................................................................... 3
Reasons for Granting the Conditional
Cross-Petition .................................................................. 9
I. Roe and Casey Should Be Overruled Because
They Have Damaged This Court’s
Jurisprudence. .................................................... 10
II. Roe and Casey Should Be Overruled Because
They Have Had Damaging “Real-World”
Effects. ................................................................ 17
Conclusion ...................................................................... 21
V
TABLE OF AUTHORITIES
Page(s)
Cases
A Woman’s Choice—East Side Women’s Clinic
v. Newman,
305 F.3d 684 (7th Cir. 2002) ........................................ 13
Bristol Reg’l Women’s Ctr., P.C. v. Slatery,
994 F.3d 774 (6th Cir. 2021) .................................... 11
City of Akron v. Akron Ctr. for Reprod. Health,
462 U.S. 416 (1983) ................................................... 17
Ex parte Young,
209 U.S. 123 (1908) ..................................................... 8
Falls Church Med. Ctr., LLC v. Oliver,
412 F. Supp. 3d. 668 (E.D. Va. 2019) ................. 11-12
Florida Businessmen for Free Enterprise v.
City of Hollywood,
648 F.2d 956 (5th Cir. 1981) ...................................... 7
Gonzales v. Carhart,
550 U.S. 124 (2007) ................................................... 14
Griggs v. Provident Consumer Discount Co.,
459 U.S. 56 (1982)....................................................... 5
Hill v. Colorado,
530 U.S. 703 (2000) ..................................................... 9
June Med. Servs. LLC v. Russo,
140 S. Ct. 2103 (2020)........................................... 9, 10
June Med. Servs. v. Gee,
139 S. Ct. 663 (2019)................................................. 17
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ..................................................... 9
VI
Page(s)
Cases—Continued:
McCorvey v. Hill,
385 F.3d 846 (5th Cir. 2004) .................................... 19
MKB Mgmt. Corp. v. Stenehjem,
795 F.3d 768 (8th Cir. 2015) .................................... 19
Planned Parenthood of Greater Tex. Surg.
Health Servs. v. Kauffman,
981 F.3d 347 (5th Cir. 2020) (en banc) .............. 14, 15
Planned Parenthood of Greater Tex. Surg.
Health Servs. v. Smith,
No. 1:15-cv-01058-SS (W.D. Tex. Dec. 30,
2016) .......................................................................... 14
Planned Parenthood of Ind. & Ky., Inc. v.
Adams,
937 F.3d 973 (7th Cir. 2019) .................................... 11
Planned Parenthood of Ind. & Ky., Inc. v. Box,
949 F.3d 997 (7th Cir. 2019) ........................ 11, 14, 17
Planned Parenthood of Ind. & Ky., Inc. v.
Comm’r of Ind. State Dep’t of Health,
896 F.3d 809 (7th Cir. 2018) .................................... 11
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ........................................... passim
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc.,
506 U.S. 139 (1993) ..................................................... 2
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ......................................... 10, 17
Roe v. Wade,
410 U.S. 113 (1973) ........................................... passim
VII
Page(s)
Cases—Continued:
Stenberg v. Carhart,
530 U.S. 914 (2000) ..................................................... 9
Texas v. Rettig,
993 F.3d 408 (5th Cir. 2021) .................................... 12
United States v. Texas,
No. 1:21-cv-00796-RP
(W.D. Tex. Oct. 1, 2021) ..................................... 15, 16
United States v. Texas,
No. 21-50949 (5th Cir. Oct. 7, 2021) ........................ 16
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ................................................. 9
Whole Woman’s Health v. Jackson,
No. 1:21-cv-00616-RP (W.D. Tex. Jul. 13,
2021) .................................................................... 4, 5, 6
Whole Woman’s Health v. Jackson,
13 F.4th 434 (5th Cir. 2021) ............................... 1, 7, 8
Whole Woman’s Health v. Jackson,
No. 21A24 (U.S. Aug. 30, 2021) ............................... 15
Whole Woman’s Health v. Jackson,
141 S. Ct. 2494 (2021) ................................................. 7
Whole Woman’s Health v. Paxton,
10 F.4th 430 (5th Cir. 2021) (en banc) .............. 12, 13
Williams v. Brooks,
996 F.2d 728 (5th Cir. 1993) ...................................... 5
Constitutional Provisions
U.S. Const. art. III, § 2 ................................................. 2
U.S. Const. amend. XI ................................................... 2
VIII
Page(s)
Statutes
42 U.S.C. § 1983 ............................................................. 3
Tex. Health & Safety Code § 171.207(a) .............. 3, 4, 8
Other Authorities
Am. Coll. of Obstet. & Gyns., Facts are
Important: Fetal Pain,
https://www.acog.org/advocacy/facts-areimportant/fetal-pain................................................. 20
Americans’ Opinions on Abortion: Knights of
Columbus/Marist Poll Nat’l Survey 7 (Jan.
2021),
https://www.kofc.org/en/resources/newsroom/polls/kofc-national-survey-withtables012021.pdf....................................................... 20
D. Stulberg, et al., Abortion provision among
practicing obstetrician-gynecologists,
Obstet. Gyn., Vol. 118 no. 3, 609–14 (Sept.
2011) .......................................................................... 20
Katherine Kortsmit, et al., Centers for Disease
Control: Abortion Surveillance—United
States, 2018,
https://www.cdc.gov/mmwr/volumes/69/ss/pdf
s/ss6907a1-H.pdf ...................................................... 15
L. Harris, Second Trimester Abortion
Provision: Breaking the Silence and
Changing the Discourse,
Repro. Health Matters, Vol. 16 no. supp. 31,
74–81 (2008) ........................................................ 18, 19
IX
Page(s)
Other Authorities—Continued:
Michelle Ye Hee Lee, Is the United States One
of Seven Countries that “Allows Elective
Abortions After Twenty Weeks of
Pregnancy?”,
Wash. Post, Oct. 9, 2017 .......................................... 18
Nat’l Right to Life, Abortion Statistics: United
States Data and Trends,
https://www.nrlc.org/uploads/factsheets/FS01
AbortionintheUS.pdf ............................................... 18
Planned Parenthood Texas Health Center
Locations,
https://www.plannedparenthood.org/healthcenter?location=TX&service=&channel=any
(last accessed Oct. 20, 2021) .................................... 15
S. Derbyshire & J. Bockmann, Reconsidering
fetal pain,
J. Med. Ethics 46, 3–6 (2020) .................................. 19
OPINIONS BELOW
The opinion of the district court is reported at 2021
WL 3821062 and reprinted in the appendix to the petition
in 21-463 at Pet. App. 1a–68a. There is no opinion of the
court of appeals to review because Petitioners are seeking certiorari before judgment. The opinion of the Fifth
Circuit motions panel, which explains its decision not to
issue an injunction of the Heartbeat Law pending appeal,
is reported at Whole Woman’s Health v. Jackson, 13
F.4th 434 (5th Cir. 2021) (Jackson), and is reprinted in
the appendix to the petition in 21-463 at 83a–105a.
2
JURISDICTION
Petitioners are seeking review under Supreme Court
Rule 11, and they filed their certiorari-before-judgment
petition on September 23, 2021. This conditional crosspetition is timely under Supreme Court Rule 12.5.
The district court lacked subject-matter jurisdiction
because Petitioners’ claims are barred by Article III’s
case-or-controversy requirement. Petitioners’ claims
against respondents Jackson, Clarkston, Carlton,
Thomas, Young, Benz, and Paxton are additionally
barred by sovereign immunity.
The Fifth Circuit has appellate jurisdiction because
the respondents appealed an order denying a sovereignimmunity defense, which is appealable under the collateral-order doctrine. Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
This Court has jurisdiction under 28 U.S.C. § 1254 because Petitioners are asking this Court to review a case
in the court of appeals.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. art. III, § 2 provides, in relevant part:
The judicial power shall extend to all cases, in
law and equity, arising under this Constitution,
the laws of the United States, and treaties
made, or which shall be made, under their authority . . . .
U.S. Const. amend. XI provides:
The Judicial power of the United States shall
not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of
3
the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
The text of the Fourteenth Amendment is reprinted
in the appendix to the petition at Pet. App. 106a. The text
of 42 U.S.C. § 1983 is reprinted in the appendix to the
petition at Pet. App. 107a. The Texas Heartbeat Law,
also known as Senate Bill 8, is reprinted in the appendix
to the petition at Pet. App. 108a–132a.
STATEMENT
On May 19, 2021, Governor Abbott signed the Texas
Heartbeat Law, also known as Senate Bill 8, which prohibits abortion after a fetal heartbeat can be detected.
Pet. App. 108a–132a. The Heartbeat Law does not impose criminal sanctions or administrative penalties on
those who violate the statute, and it specifically prohibits
state officials from enforcing the law. See Tex. Health &
Safety Code § 171.207(a) (Pet. App. 113a). Instead, the
Heartbeat Law authorizes private civil lawsuits to be
brought against those who violate the statute, and it provides that these private citizen-enforcement suits shall
be the sole means of enforcing the statutory prohibition
on post-heartbeat abortions:
Notwithstanding Section 171.005 or any other
law, the requirements of this subchapter shall be
enforced exclusively through the private civil
actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be
taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of
4
this state or a political subdivision against any
person, except as provided in Section 171.208.
Tex. Health & Safety Code § 171.207(a) (Pet. App. 113a).
The Heartbeat Law took effect on September 1, 2021.
Pet. App. 132a.
Petitioners filed this lawsuit on July 13, 2021.1 They
sued Penny Clarkston, who serves as clerk for the district court of Smith County, as a putative defendant class
representative of every non-federal Texas court clerk.2
They also sued Judge Austin Reeve Jackson, a state district judge in Smith County, Texas, as a putative defendant class representative of every non-federal judge in the
State of Texas.3 In addition to these judicial defendants,
Petitioners sued Attorney General Paxton and several
state agency officials, as well as Mark Lee Dickson, a private individual.4 Petitioners’ complaint requests relief
that would prohibit Judge Jackson — and every non-federal judge in the state of Texas — from considering or deciding any lawsuits that might be filed under the Heartbeat Law.5 It also requests an injunction that would prohibit Ms. Clarkston—and every non-federal Texas court
clerk—from docketing petitions submitted in these lawsuits.6 It also requests an injunction that would restrain
Mr. Dickson from filing any private civil-enforcement
See Complaint, Whole Woman’s Health v. Jackson, No. 1:21cv-00616-RP (W.D. Tex. Jul. 13, 2021), ECF No. 1.
2
Id. at 15–16.
3
Id. at 15.
4
Id. at 16–20.
5
Id. at 46–47.
6
See id.
1
5
lawsuits under the Heartbeat Law.7 Later that day, Petitioners filed a motion for summary judgment, and they
moved for class certification on July 16, 2021. 8
On August 4–5, 2021, all the defendants moved to dismiss for lack of subject-matter jurisdiction on the basis
of sovereign immunity and Article III standing. Pet.
App. 90a. On August 25, 2021, the district court issued an
order denying each of the defendants’ motions to dismiss
for lack of subject-matter jurisdiction. Pet. App. 1a–68a.
The defendants immediately appealed the district
court’s jurisdictional ruling. Pet. App. 90a. The next
morning, the defendants informed the district court that
their notice of appeal had automatically divested it of jurisdiction. They asked the district court to cancel the preliminary-injunction hearing that the court had scheduled
for August 30, 2021, and stay all further proceedings in
the case.9 See Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal . . . divests the district court of its control over those
aspects of the case involved in the appeal.”); Williams v.
Brooks, 996 F.2d 728, 730 (5th Cir. 1993) (“[T]he filing of
a non-frivolous notice of interlocutory appeal following a
district court’s denial of a defendant’s immunity defense
divests the district court of jurisdiction to proceed
against that defendant.”). The defendants also informed
the district court that they would seek emergency relief
from the Fifth Circuit if it did not cancel the preliminaryinjunction hearing and vacate all deadlines by close of
See id. at 46.
Pls.’ Mot. for Summ. J., Jackson, No. 1:21-cv-00616-RP (W.D.
Tex. Jul. 13, 2021), ECF No. 19; Mot. for Class Cert., Jackson, No.
1:21-cv-00616 (W.D. Tex. Jul. 16, 2021), ECF No. 32.
9
Mot. to Stay Case, Jackson, No. 1:21-cv-00616-RP (W.D. Tex.
Aug. 26, 2021), ECF No. 84.
7
8
6
business on August 26, 2021.10 When that time passed,
the defendants filed an emergency motion with the Fifth
Circuit, requesting that it stay the district-court proceedings pending appeal. Pet. App. 90a. Defendants also
asked for a temporary administrative stay pending consideration of that motion. Pet App. 90a.
On August 27, 2021, the district court issued an order
acknowledging that the notice of appeal had divested it
of jurisdiction over the claims against the government
defendants, and ordered the proceedings stayed with respect to those defendants only.11 The district court stated
that it retained jurisdiction over the claims against Mr.
Dickson because he has “no claim to sovereign immunity,” and “the denial of his motion to dismiss is not appealable.”12 Later that day, the Fifth Circuit issued an
administrative stay of all district-court proceedings, including proceedings against Mr. Dickson, pending its
disposition of the defendants’ motion for emergency relief. Pet. App. 90a.
Petitioners responded by filing several motions.
First, they asked the district court to reclaim jurisdiction
over the case by certifying the defendants’ appeal as
“frivolous.”13 The district court denied this request.14
Then Petitioners asked the Fifth Circuit to adopt an extreme schedule that would have required a ruling by
Notice, Jackson, No. 1:21-cv-00616-RP (W.D. Tex. Aug. 26,
2021), ECF No. 85.
11
See Order, Jackson, No. 1:21-cv-00616-RP (W.D. Tex. Aug. 27,
2021), ECF No. 88, at 1–2.
12
See id. at 2.
13
See Pls.’ Opp. to Motion to Stay, Jackson, No. 1:21-cv-00616RP (W.D. Tex. Aug. 26, 2021), ECF No. 86.
14
See Order, Jackson, No. 1:21-cv-00616-RP (W.D. Tex. Aug. 27,
2021), ECF No. 88, at 1–2.
10
7
September 1, 2021. The court of appeals summarily denied this request. See Whole Woman’s Health v. Jackson, 13 F.4th 434, 441 & n.7 (5th Cir. 2021). Petitioners
also asked the Fifth Circuit for an injunction that would
prevent the defendants from enforcing Senate Bill 8 during the appeal. They further asked the Fifth Circuit to
vacate the administrative stay that it had issued on August 27, 2021, as well as the stay of proceedings that the
district court had entered with respect to the government defendants. Finally, Petitioners asked the Fifth
Circuit to vacate the district court’s order denying the
defendants’ Rule 12(b)(1) motions and dismiss the appeal
as moot. The court of appeals denied all these requests.
See id. at 441 & n.7.
Petitioners then sought emergency relief from this
Court, asking it to enjoin the respondents from enforcing
the Heartbeat Law and to vacate the stays of the districtcourt proceedings. Whole Woman’s Health v. Jackson,
No. 21A24 (U.S. Aug. 30, 2021). This Court denied both
requests on September 1, 2021, holding that Petitioners
failed to make a “strong showing” of likely success on the
jurisdictional issues, while cautioning that it was not definitively resolving “any jurisdictional or substantive
claim in the applicants’ lawsuit.” Whole Woman’s Health
v. Jackson, 141 S. Ct. 2494, 2495 (2021).
On September 10, 2021, the Fifth Circuit issued an
opinion explaining its decision to deny Petitioners’ emergency request for an injunction pending appeal. See
Jackson, 13 F.4th 434. The court of appeals held that Petitioners had failed to establish a “strong likelihood of
success on the merits,” which is needed to obtain an injunction pending appeal. See id. at 441 (citing Florida
Businessmen for Free Enterprise v. City of Hollywood,
648 F.2d 956, 957 (5th Cir. 1981)).
8
More specifically, the court of appeals held that Petitioners had no conceivable claims against Attorney General Paxton or any of the state-agency defendants because each of these officials is statutorily barred from enforcing the Heartbeat Law. See id. at 443 (“[T]he Texas
Attorney General has no official connection whatsoever
with the statute.”); id. at 443 (“The agency officials sued
here have no comparable ‘enforcement’ role under S.B.
8.”); see also Tex. Health & Safety Code § 171.207(a)
(Pet. App. 113a). The court of appeals also held that the
claims against Judge Jackson and Ms. Clarkston were
“specious” because Ex parte Young, 209 U.S. 123 (1908),
“explicitly excludes judges from the scope of relief it authorizes,” and because “it is well established that judges
acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law.” Jackson, 13 F.4th at 443. Further, it
held that “the court clerks act under the direction of
judges acting in their judicial capacity. Their duty within
the court is to accept and file papers in lawsuits, not to
classify “acceptable” pleadings. Accordingly, the clerks
are improper defendants against whom injunctive relief
would be meaningless.” Id. at 444. The court of appeals
also held that Mr. Dickson could pursue his Article III
standing objections as part of the interlocutory appeal,
and it granted Mr. Dickson’s motion to stay the districtcourt proceedings pending appeal. See id. at 445–47. Finally, the Fifth Circuit expedited the appeal to the next
available oral-argument panel. See id. at 448.
The respondents have already submitted their opening briefs, and oral argument is set for the week of December 6, 2021. Petitioners now ask this Court to grant
certiorari before judgment in the expedited Fifth Circuit
proceedings.
9
REASONS FOR GRANTING THE CONDITIONAL CROSS-PETITION
If the Court decides to grant the petition and depart
from normal rules of appellate procedure because Petitioners say the Texas Heartbeat Law violates Roe and
Casey, the Court should also consider whether Roe and
Casey should be overruled.
Were the Court inclined to grant the petition here, it
would unfortunately not be the first time this Court has
departed from the typical rules in an abortion case, as
multiple Justices of this Court have observed. Justice
Scalia wrote that “no legal rule or doctrine is safe from
ad hoc nullification by this Court when an occasion for its
application arises in a case” about abortion. Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 785 (1994)
(Scalia, J. concurring in the judgment in part and dissenting in part). Examples of the “abortion exception” to
the usual rules are many. See, e.g., Stenberg v. Carhart,
530 U.S. 914, 954 (2000) (Scalia, J., dissenting) (canons of
statutory interpretation); Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2330 (2016) (Alito, J., dissenting) (rules of civil procedure); Hill v. Colorado, 530
U.S. 703, 742–65 (2000) (Scalia, J., dissenting) (First
Amendment); June Med. Servs. LLC v. Russo, 140 S. Ct.
2103, 2142 (2020) (Thomas, J. dissenting) (Article III
standing). The petition in this case urges yet another occasion for the “abortion exception,” and this time, Petitioners urge the Court to set aside not just one, but multiple longstanding legal doctrines to make room for their
challenge to the Texas Heartbeat Law.
This Court should reject that bold request. But the
“abortion exception” is merely a symptom of a systemic
10
disease inflicted on this Court’s jurisprudence by Roe
and Casey. Thus, if it entertains the petition, the Court
should also consider whether to eliminate the root cause
of this jurisprudential rule-bending: Roe and Casey.
Aside from being exceptionally poorly reasoned and not
grounded in the text, history, or tradition of the Constitution, Roe and Casey have had both adverse jurisprudential effects and grave “real-world consequences,”
warranting reversal. Ramos v. Louisiana, 140 S. Ct.
1390, 1415 (2020) (Kavanaugh, J., concurring in part).
I. Roe and Casey Should Be Overruled Because
They Have Damaged This Court’s Jurisprudence.
Almost 50 years of this Court perpetuating Roe and
Casey as unassailable precedent has inflicted harm on
this Court’s jurisprudence. And it has done so in multiple
ways aside from the “abortion exception.”
A. The fluidity of the undue-burden standard, the arbitrariness of viability as a line of legal demarcation, and
the Court’s constantly shifting rationales and standards,
have undermined the Court’s reasoning and precedent.
Indeed, as Justice Thomas noted in his dissent in June
Medical, “the fact that no five Justices can agree on the
proper interpretation of our [abortion] precedents today
evinces that our abortion jurisprudence remains in a
state of utter entropy.” 140 S. Ct. at 2152 (Thomas, J.,
dissenting).
1. These feeble guideposts have also left state legislatures with little guidance as to what types of restrictions will be deemed valid. Until the Texas Heartbeat Law, lawmakers were left with the sole option of
passing a restriction or regulation and immediately litigating its constitutionality all the way to the Supreme
11
Court to learn whether it passes constitutional muster.
As Judge Easterbrook has complained,
The “undue burden” approach announced in
Planned Parenthood of Southeastern Pennsylvania v. Casey does not call on a court of appeals to
interpret a text. Nor does it produce a result
through interpretation of the Supreme Court’s
opinions. How much burden is “undue” is a matter
of judgment, which depends on what the burden
would be (something the injunction prevents us
from knowing) and whether that burden is excessive . . . Only the Justices, the proprietors of the
undue-burden standard, can apply it to a new category of statute . . .
Planned Parenthood of Ind. & Ky., Inc. v. Box, 949 F.3d
997, 999 (7th Cir. 2019) (Easterbrook, J., concurring in
the denial of rehearing en banc). This is now standard
practice for every State that seeks to even modestly limit
abortion. And because of Casey’s meaningless undueburden standard, lower courts have even struck down
laws similar to those this Court has already upheld. See
Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of
Ind. State Dep’t of Health, 896 F.3d 809 (7th Cir. 2018),
cert. granted, judgment vacated sub nom. Box v.
Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 184
(2020) (ultrasound and 18-hour waiting period); Planned
Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973
(7th Cir. 2019), cert. granted, judgment vacated sub nom.
Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S.
Ct. 187 (2020) (parental consent); Bristol Reg’l Women’s
Ctr., P.C. v. Slatery, 994 F.3d 774 (6th Cir. 2021) (48-hour
waiting period); Falls Church Med. Ctr., LLC v. Oliver,
12
412 F. Supp. 3d. 668 (E.D. Va. 2019) (ambulatory surgical
center requirement for second-trimester abortions).
2. Even if these state abortion laws are eventually
permitted by courts to go into effect, they are first delayed with years of hard fought and expensive litigation.
As the Fifth Circuit recently noted when the en banc
court upheld Texas’s ban on live-dismemberment abortions, “SB8 was signed into law four years ago—four
years in which federal courts have halted Texas’s duly
enacted and modest legislation from taking effect.”
Whole Woman’s Health v. Paxton, 10 F.4th 430, 455 (5th
Cir. 2021) (plurality op.). Judge Ho separately emphasized this point in concurrence:
Texas does not ban abortion until 22 weeks. So
Texas law is not only valid under the Constitution
and Supreme Court precedent—it’s also more
permissive than the overwhelming majority of
laws around the world.
Yet federal courts have blocked it for four years.
This in spite of the fact that, when it comes to
medical disputes surrounding abortion, Supreme
Court precedent requires judges to defer to—not
overturn—the will of the voters and the judgment
of the legislators they elected to office. “The right
to vote means nothing if we abandon our constitutional commitments and allow the real work of
lawmaking to be exercised by [federal judges], rather than by elected officials accountable to the
American voter.” Texas v. Rettig, 993 F.3d 408,
410–11 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc). After four years, the
court today finally allows the law to take effect.
13
Id. at 470 (Ho, J., concurring). Given this state of affairs,
it is no wonder that Texas lawmakers sought to craft an
abortion law that had a chance of not being immediately
enjoined by unelected federal judges and precluded from
being enforced for years. When the Texas Heartbeat
Law went into effect, it marked the first time in recent
history (to our knowledge) that a challenged Texas abortion law was permitted to go into effect on its effective
date.
B. Another problem with the perpetual litigation regime resulting from Casey’s vague undue-burden standard is that it permits enforcement of abortion laws to be
enjoined for years based on nothing but the plaintiffs’
predictions of doom and no actual evidence proving that
projected impact of the law is correct. As Judge Easterbrook noted,
Talk is cheap, which makes it easy for the plaintiffs in a pre-enforcement suit to predict the worst
and demand that an injunction issue before the
disaster comes to pass. If the judge issues the injunction, the prediction cannot be tested—unless
by chance a similar rule in some other state is not
enjoined, and then the judiciary can learn by that
experience. See, e.g., A Woman’s Choice—East
Side Women’s Clinic v. Newman, 305 F.3d 684
(7th Cir. 2002). Unless a baleful outcome is either
highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject
of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated
properly. And principles of federalism should allow the states that much leeway. Talk of the states
14
as laboratories is hollow if federal courts enjoin
experiments before the results are in.
Box, 949 F.3d at 998 (Easterbrook, J., concurring in the
denial of rehearing en banc).
1. When these laws have finally gone into effect, we
have seen that the abortion plaintiffs’ hyperbolic predictions are wrong. A few examples: In the challenges to the
federal Partial-Birth Abortion Ban Act, abortion doctors
claimed that the law would prohibit them from doing
“all” dilation & evacuation procedures, which are the
most common method of performing second-trimester
abortions. See Gonzales v. Carhart, 550 U.S. 124, 147
(2007). Yet second-trimester abortion has continued unabated since Gonzales upheld the Act. In the litigation
over Texas’s decision to exclude Planned Parenthood
from its Medicaid program because of unethical conduct
captured on undercover video, Planned Parenthood insisted that it needed a preliminary injunction against the
exclusion because losing its Medicaid funds could cause
their Texas clinics to cut services and close clinics.15 That
preliminary injunction was in place for years while the
case worked its way through the courts before finally being overturned by the en banc Fifth Circuit. See Planned
Parenthood of Greater Tex. Surg. Health Servs. v. Kauffman, 981 F.3d 347 (5th Cir. 2020) (en banc). But not only
See Mot. for Prelim. Inj. 21, Planned Parenthood of Greater
Tex. Surg. Health Servs. v. Smith, No. 1:15-cv-01058-SS (W.D. Tex.
Dec. 30, 2016), ECF No. 55-2.
15
15
has Planned Parenthood stayed open in Texas since being removed from the Medicaid program, it has opened
new clinics.16
2. This case is no exception. The first time Petitioners
came to this Court seeking relief, they insisted that if the
Heartbeat Law went into effect, the law would result in
prohibiting abortion “for at least 85% of Texas abortion
patients (those who are six weeks pregnant or greater).”
Emergency App. for Writ of Inj. at 2, Whole Woman’s
Health v. Jackson, No. 21A24 (U.S. Aug. 30, 2021). But
that dire prediction does not appear to be true. According to the CDC, in 2018, nearly 40% of all Texas abortions, and over 40% nationwide, were performed at or below six weeks of pregnancy.17 In some states, that number is even higher. For example, in Florida—a state with
no Heartbeat Law—CDC data shows that 72% of abortions in that state were performed at or below six weeks
of pregnancy.18 That means that a significant number—
perhaps even as high as three-quarters—of the number
of abortions that were being performed previously may
still be performed in compliance with the Heartbeat
Law.
Compare Planned Parenthood Texas Health Center Locations,
https://www.plannedparenthood.org/health-center?location=TX&service=&channel=any (last accessed Oct. 20, 2021)
(showing 41 locations) with Kauffman, 981 F.3d at 351 (noting that
Planned Parenthood operated 30 Texas health centers).
17
Katherine Kortsmit, et al., Centers for Disease Control: Abortion
Surveillance—United
States,
2018
at Table
9,
https://www.cdc.gov/mmwr/volumes/69/ss/pdfs/ss6907a1-H.pdf; see
also Intervenors’ Exhibits in Opposition to Preliminary Injunction
Motion, United States v. Texas, No. 1:21-cv-00796-RP (W.D. Tex.
Oct. 1, 2021), ECF No. 58-1 at 30.
18
Id.
16
16
Because this case was appealed on jurisdictional
grounds before the law went into effect, there is no evidentiary record to speak of, other than Petitioners’ untested hearsay declarations filed in the district court, relied on here by Petitioners. See Pet. at 17-22. The district
court did not permit Intervenors in United States v.
Texas (21A85) to present testimony or cross-examination at the preliminary-injunction hearing, but they nevertheless obtained some evidence that calls into question
the accuracy of Petitioners’ predictions.19
According to the latest data provided by Petitioners,
it appears that from September 12, 2021 through September 16, 2021, Planned Parenthood clinics in Houston
and Stafford, Texas performed between 50 and 63% of
the average number of abortions they performed before
the Heartbeat Law.20 That valuable information about
the actual impact of the law would have been unavailable
had the law been prevented from going into effect. And
it is indeed relevant here because Petitioners rely on
what they claim are extraordinary circumstances to urge
See Intervenors’ Mot. to Stay Inj. at 17-18, United States v.
Texas, No. 21-50949 (5th Cir. Oct. 7, 2021).
20
See Decl. of Monique Chireau Wubbenhorst, M.D., M.P.H., at
¶ 25, Texas, No. 1:21-cv-00796-RP (W.D. Tex. Oct. 1, 2021), ECF No.
58-1 at 141. Based on statistics given by Melaney Linton, CEO of
Planned Parenthood Center for Choice (PPCFC), PPCFC performed between 14.3 and 17.9 abortions per day before the Heartbeat Law (the daily average for 400-500 abortions per month). Ms.
Linton attested that PPCFC performed 52 abortions between September 1 and September 11 and 97 abortions between September 1
and September 16, which means that PPCFC performed 45 abortions between September 12 and September 16. That averages to
approximately 9 abortions per day, which is between 50-63% of the
abortions that were performed on average before the Heartbeat
Law.
19
17
the Court to grant extraordinary relief. See Pet. at 17-22.
Yet because of Casey’s unworkable standard, which has
resulted in repeated preemptive injunctions for even the
modest abortion regulations, courts are often deprived of
this information despite being asked to decide these significant issues. See June Med. Servs. v. Gee, 139 S. Ct.
663 (2019) (mem. op.) (Kavanaugh, J., dissenting) (noting
that he would deny the stay of the law to determine
whether the “factual prediction” about the impact of the
law “proves to be inaccurate.”); Box, 949 F.3d at 998
(Easterbrook, J., concurring in the denial of rehearing
en banc) (lamenting “pre-enforcement relief that forever
prevents the judiciary from knowing what a law really
does.”). That problem calls for reconsidering Roe and
Casey.
* * *
On a broader scale, Roe and Casey’s utter lack of
workability is an inexorable consequence of the Court’s
self-proclaimed, but constitutionally unwarranted, role
as the nation’s “ex officio medical board with powers to
approve or disapprove medical and operative practices
and standards throughout the United States.” City of
Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416,
456 (1983) (O’Connor, J., dissenting). The Court lacks the
constitutional authority and institutional competence for
such a role and should relinquish it now.
II. Roe and Casey Should Be Overruled Because
They Have Had Damaging “Real-World” Effects.
The “real-world effects on the citizenry” of Roe and
Casey have also been devastating, warranting their reversal. Ramos, 140 S. Ct. at 1415 (Kavanaugh, J., concurring in part).
18
A. Roe and Casey have nullified the laws of every
State seeking to offer meaningful protections to human
beings in utero from the lethal violence of abortion, and
as a result, the loss of life has been staggering. Since
1973, the number of abortions in the United States has
exceeded 62 million.21 The Court’s abortion jurisprudence has placed this country far out of the world’s mainstream, with the United States one of only a handful of
countries in the world that allows elective abortions after
twenty weeks’ gestation.22 Even as Americans gaze with
wonder at detailed ultrasound images of their unborn babies and throw gender reveal parties, the U.S. abortion
regime simultaneously renders other unborn babies subject to slaughter and dehumanization as mere “cells” or
“tissue”. As one abortionist pondered while observing a
premature newborn, “I thought to myself how bizarre it
was that I could have legally dismembered this fetusnow-newborn if it were inside its mother’s uterus – but
that the same kind of violence against it now would be
illegal, and unspeakable.”23 This cognitive dissonance
about the humanity and value of the unborn child stems
from the continued legality of the horrific procedure enshrined in law by Roe and Casey.
Nat’l Right to Life, Abortion Statistics: United States Data
and Trends, https://www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf, (relying on adjusted data from the Guttmacher Institute, former research arm of Planned Parenthood).
22
See, e.g., Michelle Ye Hee Lee, Is the United States One of
Seven Countries that “Allows Elective Abortions After Twenty
Weeks of Pregnancy?”, Wash. Post, Oct. 9, 2017 (fact check rating
this statement as “true”).
23
L. Harris, Second Trimester Abortion Provision: Breaking
the Silence and Changing the Discourse, Repro. Health Matters,
Vol. 16 no. supp. 31, 74–81, 76 (2008), https://www.tandfonline.com
/doi/pdf/10.1016/S0968-8080%2808%2931396-2?needAccess=true.
21
19
B. America’s abortion jurisprudence has likewise
gravely damaged our electoral politics, making it a bitter
and polarized zero-sum contest for control of this Court
because of abortion. Supreme Court confirmation hearings have devolved into a toxic bloodsport. This does not
appear to be the case in other nations around the world
that have been allowed to govern themselves on the question of abortion through democratic deliberation and
compromise rather than having the matter usurped by
their Court of last resort.
C. Roe and Casey have also artificially solidified an
outdated viability standard, preventing States from following new science as it crafts its regulations. As lower
courts have recognized, “‘because the Court’s rulings
have rendered basic abortion policy beyond the power of
our legislative bodies, the arms of representative government may not meaningfully debate’ medical and scientific advances.” MKB Mgmt. Corp. v. Stenehjem, 795
F.3d 768, 774 (8th Cir. 2015) (quoting McCorvey v. Hill,
385 F.3d 846, 852 (5th Cir. 2004) (Jones, J., concurring)).
And the Court’s foray into medical regulation may not
merely be stagnating the legal standard despite advancing science—it may be impeding science. Researchers
fear that acknowledging science on fetal pain, for example, may lead to restriction on abortion. 24 The American
College of Obstetricians and Gynecologists (ACOG)’s
clinging to decade-old research on fetal pain illustrates
See S. Derbyshire & J. Bockmann, Reconsidering fetal pain,
J. Med. Ethics Vol. 46, no. 1, 3–6, 3 (2020), https://jme.bmj.com/content/46/1/3 (“Fetal pain has long been a contentious issue, in large
part because fetal pain is often cited as a reason to restrict access to
termination of pregnancy or abortion.”); see also Harris, supra, at
77 (abortion providers are “silen[t]” about the violence of abortion
because “frank talk like this is threatening to abortion rights.”)
24
20
this point.25 It also illustrates how ACOG’s views 26 are
based less on science and more on the politics of protecting Roe and Casey. It is unconscionable to think that the
“medical” community shapes “the science” to fit its political goals. But this is the division the Court’s abortion jurisprudence inflames.
* * *
Abortion is one of the most controversial issues in the
United States and is likely so because of this Court’s intervention. The Court’s attempt to answer the question
for all time and remove the issue from public debate, see
Casey, 505 U.S. at 867, has had the opposite effect, and
least half of the American public is still as intensely opposed to abortion as it was in 1973. 27 If the Court is concerned about efforts by states to craft abortion legislation that may actually take effect, it should eliminate the
root of the problem: its unworkable abortion precedent.
Overruling Roe and Casey would allow the Court to relinquish its role as nationwide abortion regulator and return the job to States and elected officials where it belongs.
See Am. Coll. of Obstet. & Gyns., Facts are Important: Fetal
Pain,
https://www.acog.org/advocacy/facts-are-important/fetalpain (undated but referencing the Trump Administration).
26
Most practicing obstetrician-gynecologists do not share this
view, as over 85% do not perform abortions. D. Stulberg, et al.,
Abortion provision among practicing obstetrician-gynecologists,
Obstet. Gyn., Vol. 118 no. 3, 609–14 (Sept. 2011),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3170127/.
27
See, e.g., Americans’ Opinions on Abortion: Knights of Columbus/Marist
Poll
Nat’l
Survey
7
(Jan.
2021),
https://www.kofc.org/en/resources/news-room/polls/kofc-nationalsurvey-with-tables012021.pdf.
25
21
CONCLUSION
The conditional cross-petition should be granted if
the Court grants the petition in No. 21-463.
Respectfully submitted.
HEATHER GEBELIN HACKER
Counsel of Record
HACKER STEPHENS LLP
108 Wild Basin Rd. South,
Suite 250
Austin, Texas 78746
heather@hackerstephens.com
(512) 399-3022
OCTOBER 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.