Bench Memos

Law & the Courts

EPPC Amicus Brief in Dobbs Abortion Case

Last week I highlighted the state of Mississippi’s excellent merits brief in Dobbs v. Jackson Women’s Health Organization, the case presenting the question whether Mississippi’s law that prohibits abortion after 15 weeks of gestational age (except in medical emergencies or in instances of severe fetal abnormality) is constitutionally permissible.

Today is the deadline for amicus briefs in support of Mississippi. Dozens of amicus briefs have already been logged on the Supreme Court’s docket, and there will probably be many more by the end of the day. I figured that I would highlight a few.

I’ll start in this post with the excellent brief submitted by my own institution, the Ethics and Public Policy Center. The brief, authored by constitutional lawyer Charles J. Cooper, his Cooper & Kirk colleagues, and Notre Dame law professor Rick Garnett, compellingly argues that stare decisis considerations cut overwhelmingly in favor of overturning Roe v. Wade and Planned Parenthood v. Casey. An excerpt from its introduction (some citations omitted):

As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, it has been robustly opposed both within and outside the Court ever since, and no sitting Justice has defended the merits of its actual reasoning.

By the narrowest of margins, this Court in Planned Parenthood v. Casey (1992), refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by Casey itself supports Roe’s repudiation. While many Americans may hope and expect that the political victory Roe declared for their side of the abortion debate will remain unquestioned, this expectancy plainly does not constitute the type of detrimental reliance to which this Court has given weight in the stare decisis calculus. Judicial developments and scientific progress have undermined Roe as a matter of fact and law. And Roe’s doctrinal standards, as reframed by Casey, have proven unworkable.

The deeper sentiment behind Casey’s decision— a vision of the Court “call[ing] the contending sides of [the] national controversy” over abortion “to end their national division”—has proved equally unsound. By reaffirming Roe, the Casey majority imagined that it could bind up the national division over abortion. But it was the decision in Roe itself that “stimulated the mobilization of a right-to-life movement,” Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 381 (1985), and the abortion controversy has endured and intensified since Casey. By reaffirming Roe, the Casey majority hoped that it could forestall a “loss in confidence in the Judiciary.” In fact, 30 more years of Roe’s misrule have proved that the greatest enduring threat to this Court’s legitimacy is Roe itself. By reaffirming Roe, the Casey majority hoped to preserve “the Nation’s commitment to the rule of law.” But rather than safeguarding our constitutional order, Roe and Casey have distorted it. By every measure—including the lines marked out by Casey itself—no judicial error stands in greater need of correction than the one made in Roe.

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