Bench Memos

Law & the Courts

Mississippi’s Reply Brief in Dobbs Abortion Case

The state of Mississippi today filed its reply brief in Dobbs v. Jackson Women’s Health Organization, and briefing in the case is now complete. (I presented Mississippi’s opening brief in this post.) Oral argument will take place on December 1.

Kudos to Mississippi attorney general Lynn Fitch and solicitor general Scott G. Stewart for their outstanding briefs.

Here is the introduction in the reply brief (some citations omitted or simplified):

For 30 years, no party has had to defend Roe v. Wade (1973). No party has ever had to defend Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Finally forced to defend those cases, respondents drive home the stark reality: Roe and Casey are indefensible. At each turn, respondents’ “effort to defend” Roe and Casey “underscores” the overwhelming case for rejecting those decisions. Citizens United v. FEC, 558 U.S. 310, 382 (2010) (Roberts, C.J., concurring).

Respondents do not claim that constitutional text or structure establishes a right to abortion. And they do not seriously argue that Roe and Casey are correct as an original matter. Their defense of Casey is to repeat its reasoning. But Casey’s reasoning is “not just wrong” but “exceptionally ill founded.” Casey reasoned that general interests in personal autonomy support a constitutional right to abortion. Yet this Court has repudiated that approach of “deduc[ing]” rights “from abstract concepts of personal autonomy.” Washington v. Glucksberg (1997). To tie due process to the accumulated wisdom of the people rather than “the policy preferences” of judges, this Court demands that an asserted fundamental right, “careful[ly] descri[bed],” be “deeply rooted in this Nation’s history and tradition.” A right to abortion has no such roots. Like Roe, Casey cast the Constitution and precedent aside to recognize a unique due-process right that ends a human life. “Casey said it” is no defense because Casey is gravely wrong.

Respondents do not claim that abortion jurisprudence is workable. They claim only that a viability rule is workable. But even that is not so. Viability has no relationship to the state interests that abortion affects, so a viability rule cannot workably account for those interests. And it is clear why respondents go no deeper on workability: they do not want to defend the workability of Casey’s undue-burden standard. The fact that—in the first case squarely calling upon this Court to overrule Casey—respondents cannot bring themselves to defend the “standard of general application” that Casey announced tells this Court all it needs to know about the workability of its abortion caselaw.

Respondents do not dispute that Roe and Casey have damaged democratic self-governance, the Nation, the law, and this Court. Indeed, respondents amplify these points when they excoriate this Court’s special test for evaluating facial challenges to abortion laws. Respondents condemn that “rights-by-numbers test” as irreconcilable with the rules this Court applies elsewhere in the law. In spotlighting this Court’s departure from neutral rules of law in abortion cases, respondents confirm the strong grounds for overruling.

Respondents urge that no factual developments support abandoning Roe and Casey. Yet respondents deny the decades of leaps forward in policy, society, medicine, and science that have continued to “unmask[ ]” how baseless and arbitrary Roe and Casey are. Ramos v. Louisiana (2020) (Kavanaugh, J., concurring in part). When Roe was decided, this Court refused even to say when human life begins, many laws and policies promoting equality were yet to come, and women composed but a small part of legislative bodies. It is not the same world today. And respondents’ factual account would not aid them even if it were true. Overruling does not require any change in facts. Roe and Casey were egregiously wrong when they were decided. A factual standstill would just mean that they are as wrong now as they were decades ago.

Respondents urge that abortion is critical to women’s success and health. Yet respondents disregard the ubiquity of safe-haven laws that eliminate parenting burdens altogether, discount that the Act here includes a health exception, downplay laws that promote women’s career and family success, and diminish contraceptive advances. Respondents even claim that abortion has driven women’s success—while disparaging that success as “incremental.” That incredible view writes off the robust career and family success that innumerable women have achieved without relying on abortion.

Last, respondents contend that there is no sound alternative approach to judicial review of abortion laws other than the one imposed by Roe and Casey. But there is a sound alternative: return the matter to the people. That approach—with abortion restrictions assessed under rational-basis review—is used on almost every important issue this country faces. Rational-basis review is familiar to courts and easy to apply. Unlike some areas of law where the right alternative may present a hard question, here it does not: rational-basis review is “what should replace” Roe and Casey. And the other alternatives the State identified are far superior to Roe and Casey.

This case provides a vivid illustration that Roe and Casey are irredeemable. The Gestational Age Act—which was enacted by large legislative majorities—adopts a modest restriction to pursue important interests. It limits abortion in Mississippi by one week [EW: respondents do not perform abortions after 16 weeks’ gestation], with exceptions for life and health. It leaves ample time for each woman who would now obtain an abortion in that week to still obtain one. The Act operates when an unborn child has fully taken on the human form, when risks to women’s health are higher, and when the common abortion procedure is especially brutal. Yet Roe and Casey led the courts below to hold—in line with every lower-court decision on a similar law—that the Constitution bars the State from reducing abortion’s availability from 16 weeks’ gestation to 15 weeks’ gestation. That is indefensible. There is no credible argument that the Constitution offers a view on—let alone precludes—such a one-week limitation. That is where Roe and Casey have brought us. This Court should overrule Roe and Casey, uphold the Act, and reverse the judgment below.

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