This piece will continue to be updated as more briefs are filed.
In granting the petition for certiorari in Dobbs v. Jackson Women’s Health Org., the Supreme Court has agreed to decide “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The briefs of the Petitioners, Dobbs et al., and its amici, all make persuasive arguments as to why the question presented should be decided in the negative. Some of them make obscure or novel points that one might not read or hear about. This article shall discuss the best, and the most interesting, of the briefs filed since the Court took up the question presented.
First, we have the brief for Petitioners. Petitioners argue, correctly, that “nothing in constitutional text, structure, history, or tradition supports a right to abortion”; Roe and Casey are “at odds with the straight-forward, constitutionally grounded answer to the question presented”; and therefore, “the stare decisis case for overruling Roe and Casey is overwhelming . . . [because they] are egregiously wrong.” In Roe, the Court invoked a general “right of privacy” completely “unmoored from the Constitution.” And in Casey, the Court repeated the error of the Roe court by “failing to tie a right to abortion to anything in the Constitution.” Any reference to the Due Process Clause of the Fourteenth Amendment is wanting; the Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Abortion does not even come close to that standard. Indeed, 18/30 States restricted abortion at the end of 1849; by the end of 1864, 27/36 States did; and by the end of 1868 (the year the 14th Amendment was ratified), 30/37 States did, as well as 6 Territories. And States restricted abortion without regard to viability; a line that is farm from unclear. Far from a “general ‘right of privacy,'” the Constitution protects “aspects of privacy through specific textual provisions (e.g., [the First and Fourth Amendments] or structural features that limit government power (such as federalism and the separation of powers).” (emphasis added). Current abortion jurisprudence conflicts with the purpose of the 10th Amendment; divides the country; creates special rules for abortion that enumerated constitutional rights do not benefit from; and has played a role in the judiciary being seen as another policy-making body.
Next up, an amicus brief by Cleveland Lawyers for Life, which focuses heavily on viability. It starts off by noting the need for the Court to closely look at viability as a line in the sand. What is viability? What is its constitutional significance? And compared to the States’ “predominant” interest in preserving the life of the unborn child, how relevant is viability? Well, “[t]here is no principled rationale for ‘viability’ . . . to be the point at which abortions may be prohibited, absent an overriding health interest of the mother.” Current abortion jurisprudence essentially holds that “once a child can survive outside the mother’s womb, the state can require her to keep it until birth. If the fetus cannot survive, she can have her pregnancy terminated, inevitably producing a dead child.” The “entire proposition is curiously contradictory.” To the skipper of a lifeboat, it says: “If there is someone on your boat who cannot swim, you may throw her overboard. But if she can swim, you must allow her to stay onboard until you reach shore.” Viability is also noted as a “vague and indeterminate” standard; one that depends on a multitude of factors, and one that is ever-changing as science and technology develop. The relevant aspects of humanity, of a life, are present well before the current line. Cardiac activity commences “between five and six weeks.” Fetal motion begins “at approximately eight weeks.” At nine weeks, “teeth and eyes are present, as well as external genitalia.” By ten weeks, “internal organs are functioning.” At twelve, the fetus “can open and close his or her fingers, start to make sucking motions, and sense stimulation from the world outside the womb.” On top of that: the scientific evidence regarding “the development of human brain structures is entirely uncontested . . . and unambiguously indicates that by [10-12 weeks], a human fetus develops” the ability to “detect and respond to pain; during the 14-20 week period, a “conscious awareness of pain” develops. In conclusion, the viability standard “should be jettisoned in favor of the point at which the physical humanity of the fetus has become biologically manifest,” and “Mississippi has met that burden of proof.”
The Jewish Prolife Foundation, and others, filed an interesting amicus brief. It notes the similarities between the experiences of “Jewish victims of genocide throughout history. . . [being] redefined as subhuman, legally stripped of personhood and civil liberties, tortured and murdered,” and infant life in the womb, who experience the same thing. Pro-abortion advocates use Hitler-like propaganda “to reconstruct compassion and concern for women facing unplanned or unwanted pregnancy” into lethal tools that “facilitate elimination of ‘infant life.'” It notes that Jews and unborn babies were/are labeled as subhuman, “parasites,” and used for medical experimentation. Finally, it recognizes the dangerousness of abortion as it promotes and encourages eugenics, which was used to justify the mass-murder of Jews.
The Alabama Center for Law and Liberty filed an amicus brief in which it discusses the way current abortion jurisprudence is inconsistent with how other areas of law treat unborn life. First it looks at criminal law. Looking at fetal homicide laws, “27 states criminalize fetal homicide regardless of the gestational age of the child,” while a handful of others use viability, quickening, or other limitations. Looking at the death penalty, out of the 27 states that authorize it: four provide that if a pregnant woman is murdered, “her pregnancy can be an aggravating factor that can justify the death penalty”; half of those states “do not require the child to reach viability or a gestational age”; nine other states permit the death of a mother and her child to be considered an aggravating factor “where two people are killed in one incident, regardless of” viability; and one state provides that “a killing that would be capital murder if the pregnant woman dies is capital murder if the mother survives but the unborn child dies.” So, out of the 14 states allowing an unborn child’s death to be considered, “12 allow his or her death to be considered regardless of viability.” And of the 27 states authorizing the death penalty, 22 “expressly prohibit the execution of a pregnant woman until the baby has been delivered.”
Second, the Alabama Center for Law and Liberty looks at Tort law. Tort law “recognizes the personhood of the unborn” by allowing actions for damages from injuries caused to the child in the womb, and for an unborn child’s wrongful death. For prenatal injuries, 30 states allow a suit for nonfatal injuries regardless of viability, whereas 17 others and DC require viability–but even these states have not ruled on the issue of whether a cause of action lies if the child’s injuries occurred pre-viability. For wrongful death suits: 40 states allow them if the child suffered post-viability injuries causing death; of that 40, two allow an action if quickening occurred, regardless of viability; and 12 allow an action regardless of viability.
Third, the brief looks at four other areas of law: property; guardianship; family; and healthcare. Common law recognized the property rights of unborn children, and States continue to do so. For example, when an unborn child’s father predeceases him or her, the child will inherit from the father as if he had been born; viability is not considered. Common law also recognized the personhood through guardianship law, a concept states still recognize by allowing courts to appoint a guardian ad litem to represent an unborn child’s interest “in various matters[,] including estates and trusts”- without regard for viability. In family law, eight states apply child-protection laws to unborn children in various ways; five other states hold that unborn children can be “victims of abuse and neglect.” Such laws protect the right of the child “to a gestation undisturbed by wrongful injury and the right to be born with a sound mind and body free from parentally inflicted abuse or neglect,” which applies to the total gestation period, not just after viability. Finally, in healthcare law, despite all states allowing patients to execute advance directives, “most . . . prohibit the withdrawal or withholding of life-sustaining treatment for a pregnant woman,” even if it contradicts her advance directive. Those states also “generally prohibit an agent acting under a health-care power of attorney from authorizing an abortion,” and typically do not include a viability rule.
Moving on, we have the amicus brief of 375 Women Injured by Second and Third Trimester Late Term Abortions and Abortion Recovery Leaders. It details several tragic stories of women physically and/or emotionally harmed by their abortions. Sonia, who had an abortion at 20 weeks, stated that she “never knew that [she] would be mentally tormented for many yrs. [sic] after the abortion and suffer from depression for yrs [sic],” and that “it took [her] approximately fifteen years to get over the mental torment and . . . forgive [her]self.” Amanda O., who had her abortion at 18 weeks “wasn’t told that [she] would be emotionally and mentally sad[,] . . . was very suicidal[,] . . . had nightmares[,] . . . [and] heard a baby crying in [her] head always.” M.W., who had an abortion at 16 weeks, finds it “hard” raising her children “to have morals and integrity.” Jennifer, who had an abortion at 14 weeks, said she “know[s] [she] killed [her] own child,” and the “resulting depression has had negative effects on everyone” in her life. ***I would note that the Court should not consider these stories in deciding the question presented, but they do help counter the narrative that abortion is “pro-woman” or something positive.***
The Jewish Coalition for Religious Liberty’s amicus brief tackles the curious claim that the Free Exercise Clause of the First Amendment contains or suggests a right to abortion. Some religious adherents claim their religion requires abortion access, thus would have the Court hold that the Free Exercise Clause mandates abortion access in the form of a religious exception to generally applicable laws restricting abortion. Others go further and say, because abortion is a fundamental aspect of their religious beliefs, the Free Exercise Clause mandates a “generally applicable constitutional right to abortion,” meaning “a complete veto over all abortion regulations.” It writes that a religious-veto approach “would declare any area of law that touches on values protected by the Bill of Rights entirely off limits to the political process.” The “traditional” accommodation-based approach balances the state’s interest in applying its laws against non-objecting citizens, and its interest in protecting religious citizens by granting them exemptions. The brief does not argue for Roe or Casey to be overturned; rather, it seems to be a response to arguments that the Free Exercise Clause mandates abortion access.
The amicus brief filed by the Catholic Medical Association, The National Association of Catholic Nurses-USA, Idaho Chooses Life, and Texas Alliance for Life discusses how the Courts in Roe and Casey did not do their jobs. The choice of viability “was based primarily on pragmatic policy concerns and personal preferences with respect to allowing more time to obtain abortion.” In creating the trimester framework, the Court “was not engaged in the traditional function of reviewing the text of the Constitution or any relevant statute,” it was not “examining the intent of the framers in drafting the Fourteenth Amendment”; it was “primarily acting in a quasi-legislative capacity” by “making judgments not about what any duly enacted law said, but rather, on what it deemed to be ‘practical’ solutions to social problems related to unwanted pregnancies.” What the Court did was “leav[e] the viability determination entirely in the abortion provider’s hands.” That alone makes enforcement of any post-viability abortion restriction tough. But there’s more: it required, post-viability, abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” This standard’s scope, elucidated in Doe v. Bolton, is boundless, for the “medical judgment . . . may be exercised in the light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient. All these factors may relate to health.” So, not only do Roe and its progeny draw a line at viability, the line is essentially meaningless because of the limitless health exceptions. The viability rule is therefore is “standardless”; an “arbitrary ‘cut-off’ which is no cut-off at all,” but “an illusory distinction without legal or practical significance.” And Roe should be overturned.
To counter the claims that abortion restrictions are racist, we have the amicus brief from the African-American, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations and Leaders. Abortion is closely tied to the “sinister goal of the eugenics movement[:] . . . to eliminate ‘unfit’ and ‘undesirable’ people–those with mental and physical disabilities as well as certain races.” Margaret Sanger, Planned Parenthood’s founder, “was one of the most outspoken members of the American eugenics movement,” which had several prominent voices. She argued eugenics was “the most adequate and thorough avenue to the solution of racial, political and social problems.” Sterilization, she said, was the “remedy” to “an increasing rate of morons.” Sadly, the eugenics movement “altered the legal landscape” in the early twentieth century, with a dozen states passing sterilization laws. This was legitimized by the Court in Buck v. Bell, allowing forced sterilization because it allowed society to “prevent those who are manifestly unfit from continuing their kind” to breed, and “[t]hree generations of imbeciles are enough.” Within five years of that holding, 28 states adopted compulsory sterilization laws and between 1907-1983 over 60,000 people were involuntarily sterilized. Abortion is inextricably linked to eugenics. It is used as a form of birth control, which Sanger argued was “really the greatest and most truly eugenic method,” and that eugenicists and those “laboring for racial betterment” would not succeed in their goals unless they “first clear[ed] the way for Birth Control.” Abortion was often supported by eugenicists. The late Justice Ginsburg said that at the time Roe was decided, “there was concern about . . . growth in populations that we don’t want to have too many of.” The brief goes on, noting how Planned Parenthood targets minority communities, and how Sanger frequently advanced her racist ideology through its promotion. Sanger’s legacy lives on. Planned Parenthood’s targeting of minority communities has led to a vastly disproportionate amount of unborn black children being killed: black women “accounted for 33.6 percent of all reported abortions in 2018, even though they make up 13 percent of women in the United States.” This disparity, as noted, is by design. Nearly 8/10 Planned Parenthood clinics “are within walking distance of predominantly Black or Hispanic neighborhoods.” In fact, 86% of its facilities are “in or near minority neighborhoods in the 25 U.S. counties with the most abortions,” which contain 19% of the U.S. population, including 28% of the black population and 37% of the Hispanic/Latino population. Twelve of these counties are majority-minority, whereas the country as a whole is only 16.3% Hispanic/Latino and 12.6% black. Affirming the lower court would greenlight the racist, eugenicist legacy of Sanger and Buck v. Bell, and allow Planned Parenthood’s racist practices to continue. Therefore, Roe should be overturned.
An amicus brief by Senators Hawley, Cruz, and Lee focuses heavily on how stare decisis considerations do not justify failing to overturn Roe and Casey. Stare decisis is a “fundamentally discretionary” doctrine with “no formal roots in the Constitution.” Stare decisis interests are “lessened” in constitutional cases, so, “when fidelity to any particular precedent does more to damage [the] constitutional ideal than to advance it, [the Court] must be more willing to depart from that precedent.” The “lodestar” of the Court’s stare decisis analysis has been “workability.” When it comes to constitutional cases, the Court has considered the workability of precedents “both retrospectively and prospectively”; how a precedent has held up since its issuance, and whether a particular precedent is likely to prove dysfunctional going forward. In looking to the past, the Court’s abortion precedent “has created confusion among the lower courts that have sought to understand and apply” it, demonstrated by a lack of “ability . . . to guide those [lower] courts toward consistent judgments.” It has not “facilitate[d] the orderly development of the law” by the Court; indeed the underpinnings of the Court’s abortion cases have been “eroded.” And there is a failure to “enunciate judicially discernible and manageable standard” that is necessary “for the implementation of” the Court’s abortion precedent. Going forward, the Court’s abortion precedent will continue to prove unworkable. This is demonstrated by the recent June Medical decision; barely a year after its issuance, lower courts are divided as to whether the broader plurality opinion (holding Casey requires a balancing test to determine undue burdens) or the narrower concurrence (finding that Casey requires only considering the burdens) controls (despite it being clear that the concurrence should control under Marks; but I digress). Ultimately, Roe and Casey need to be overturned because: First, the “zigzagging, unpredictable path” of the Court’s post-Casey rulings indicate they were “egregiously wrong” (consider the two Carhart cases, seven years apart, one striking down and the latter upholding a partial-birth abortion ban), and the Whole Woman’s Health and June Medical decisions; Second, consequently, the Court’s abortion jurisprudence has yielded “significant ‘negative judicial consequences'”; Third, there are “no strong reliance interests” in a decision that “lacks any serious claim to ‘antiquity'” and has “not given rise to contractual or other prospective reliance interests.”
The Trinity Legal Center’s amicus brief pays special attention to the medical and technological advances made since Roe was decided, that allow premature babies to survive. For example, new technology “that allowed for the precise fluid delivery, maintaining temperature and proper ventilation” contributed to the survival of infants as young as 23 weeks and as small as 500 grams. Now, “electronic fetal monitors (EFM) are used to continually read the fetus’ heartbeat and the woman’s contractions when she is in labor”; pre-Roe, they were not widely used and uniform standards were not firmly established. Now, fetoscopes are widely used; their use “began in the 1980’s,” well after Roe. They are used “to obtain information about the fetus and [are] used during pregnancy for surgical procedures on the fetus,” and have been used “to diagnose certain defects such as spina bifida.” Ultrasound technology has gone from 3D to 4D to 5D, providing a “window to the womb.” Artificial wombs have been developed, called “artificial amnion and placenta technology (AAPT).” They “mimic the function of the placenta and environment of the human fetus such that they are capable of continuing the process of gestation.” This “shift[s] perceptions of the viability timeline,” as “each advancement in neonatology pushes viability earlier in gestation.” The viability line is forever shifting, essentially becoming meaningless.
Offering an interesting historical analysis of the English common law is the St. Thomas More Society’s amicus brief. It first discusses how commentators from the thirteenth century, Bracton and Fleta, “classified abortion of a ‘formed’ or ‘quickened’ fetus as homicide.” In the seventeenth century, Coke declared abortion post-quickening was a “great misprision” (meaning a “heinous offence under the degree of felony), and that the death of a child born alive due to injuries received in the womb was “murder” (because under the law “it is accounted a reasonable creature, in rerum natura, when it is born alive.”). ((For reference, “quickening” is “the stage of pregnancy when the woman first begins to detect fetal movement,” approximately 16-18 weeks, and was used “in the common law as an evidentiary test” to determine if an abortion had been performed on a living child, and if it has caused that child’s death)). Blackstone, in his Commentaries, echoed Coke by stating that killing an unborn child was “a great misprision,” and that if the child was born alive and died “by reason of the potion or bruises it received in the womb, it is murder” by those who administered them. And “[n]o American court ever held that abortion after quickening was not a common law crime.” So, the Roe Court, which cast doubt on this proposition, was wrong.
An amicus brief by the U.S. Conference of Catholic Bishops and Other Religious Organizations questions whether “pre-enforcement challenges” in the abortion context should be allowed, as it would “continue to blur the distinction between facial and as-applied challenges.” Circuit judges have been skeptical about such challenges because they “do not allow the plaintiff’s predictions about the challenged law’s effect to be tested . . . [and] some appellate courts have concluded outright that it is an abuse of discretion to issue a pre-enforcement injunction” for that reason. As-applied challenges are favored in abortion cases, but pre-enforcement facial challenges “lead inevitably to (a) judgments based on speculative evidence, (b) a blurring of the distinction between facial and as applied challenges, and (c) court decisions based often on factors for which the government itself is not even responsible.” This status quo “would correct itself if the Court,” as Justice Scalia suggested, got “out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”