On Thursday afternoon, Mississippi attorney general Lynn Fitch filed a brief in the most important Supreme Court abortion case in three decades.
In the brief defending the constitutionality of Mississippi’s law prohibiting abortions after 15 weeks of gestation (with exceptions for when the life or physical health of the mother is endangered and in cases of severe fetal abnormalities that would prove fatal to the child), Attorney General Fitch argues that the Supreme Court’s Roe and Casey decisions should be overturned and state legislatures should be allowed to pass laws protecting the lives of human beings in the womb.
If the Court isn’t willing to allow legislatures to pass any rational law protecting the lives of unborn children, the attorney general argues, the Supreme Court should at the very least reject the “unworkable” and “arbitrary” line banning any prohibition on abortion before viability.
“Overruling Roe and Casey makes resolution of this case straightforward,” the brief states. “The Mississippi law here prohibits abortions after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law.”
(Update: You can read National Review‘s editorial on the brief here.)
The brief submitted by Fitch, the first woman ever elected as attorney general in Mississippi, deconstructs the Roe and Casey decisions that declared almost all state laws prohibiting abortion unconstitutional. And then the brief makes the case that the doctrine of stare decisis cannot save the Supreme Court’s erroneous abortion precedents.
Here are some key excerpts (most citations have been omitted).
1. Why a “right to privacy” does not protect a constitutional right to abortion:
Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. […] But Roe broke from prior cases by invoking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. […]
Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 (“[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”)
2. Why Roe and Casey “do not provide persuasive support for a viability rule.”
Roe concluded that the State’s interest in unborn life becomes “compelling” at viability “because the fetus then presumably has the capability of meaningful life outside the womb.” […] Casey added: viability “is 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.” […] Each explanation boils down to a circular assertion: when an unborn child can live outside the womb then the State’s interest is compelling because the unborn child can live outside the womb. That explanation “mistake[s] a definition for a syllogism” and is linked to nothing in the Constitution. […] All Casey adds to Roe is to emphasize “the independent existence of the second life.” But that adds no content and fails to explain why (limited) independence matters or should serve as the centerpiece of a constitutional framework. Independence is a particularly flawed justification. Even after viability, an unborn life will remain dependent: viability contemplates the ability to live with “artificial aid.” […] Indeed, well after birth any child will be highly dependent on others for survival. It makes no sense to say that a State has a compelling interest in an unborn girl’s life when she can survive somewhat independently but not when she needs a little more help.
In explaining why viability has “an element of fairness,” Casey said: “In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” […] But this provides no basis for a viability line. Innumerable other points before viability could be deemed to promote fairness just as well. Respondents do not provide abortions after 16 weeks’ gestation—weeks before viability. That undercuts any suggestion that viability is central to fairness. Given the difficult line-drawing that the competing interests call for—and on which the Constitution gives no guidance—only legislatures can properly decide what is fair in this context. […]
No matter what a State learns—about fetal pain, about when unborn life takes on the human form, about women’s health, about what effect performing abortions has on doctors—the State cannot fully act on that knowledge before viability.
3. On the scientific advancements that have occurred since Roe and Casey were handed down:
[A]dvances in medicine and science have eroded the assumptions of 30—and 50—years ago. Casey recognized that “time has overtaken some of Roe’s factual assumptions,” including about abortion risks and the timing of viability. […] Casey thought that those changes “have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” […] Whatever the truth of that statement in 1992, events have left it behind. Advances in “neonatal and medical science” […], now show that an unborn child has “taken on ‘the human form’ in all relevant respects” by 12 weeks’ gestation […]. Knowledge of when the unborn are sensitive “to pain” has progressed considerably[…] And while the Roe Court thought there was no “consensus” among those “trained in … medicine” as to whether “life … is present throughout pregnancy,” […], the Court has since acknowledged that “by common understanding and scientific terminology, a fetus is a living organism while within the womb,” before and after viability […]. Yet Casey and Roe still impede a State from acting on this information by prohibiting pre-viability abortions. The United States finds itself in the company of China and North Korea as some of the only countries that permit elective abortions after 20 weeks’ gestation.
4. Why the doctrine of stare decisis shouldn’t save Roe and Casey:
This Court should overrule Roe and Casey. Stare decisis is ‘at its weakest’ with constitutional rulings,” the brief states, “and the case for overruling here is overwhelming. Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. They have inflicted profound damage. Decades of progress have overtaken them. Reliance interests do not support retaining them. And nothing but a full break from those cases can stem the harms they have caused.” […]
Roe and Casey do not raise reliance interests in the traditional sense at all. This Court has invoked reliance interests most strongly where upending a precedent could broadly undercut reasonable expectations that have formed the basis for long-term plans and commitments that cannot readily be unwound, as “in cases involving property and contract rights.” […] Casey itself appeared to acknowledge that a judicially announced right to abortion does not call up any traditional form of reliance. […] Abortion, it said, is “customarily … an unplanned response to … unplanned activity,” and arguably “reproductive planning could take virtually immediate account of” a change in the law. […]
Casey maintained that reliance interests favored retaining Roe because, “for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” But given the many flaws in Roe and Casey, the possibility that contraception might fail is a weak ground for retaining them—particularly given contraceptive advances since Casey. […] Further, this Court is not in a position to gauge such societal reliance. That reality may help explain why some of this Court’s most important—and societally impactful—decisions overruling precedent do not even mention reliance. E.g., Brown v. Board of Education, 347 U.S. 483 (1954).
“Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse,” the brief states. The brief then quotes the late Justice Ruth Bader Ginsburg: “Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”
The solution, the brief contends, is to let legislators, not judges, craft abortion laws: “The national fever on abortion can break only when this Court returns abortion policy to the States—where agreement is more common, compromise is often possible, and disagreement can be resolved at the ballot box.”
5. What the Court could do if it wants to uphold the constitutionality of Mississippi’s 15-week limit on abortions but is not yet ready to apply a rational-basis standard for reviewing all abortion laws:
First, if this Court does not adopt rational-basis review, it should hold that the Act satisfies any standard of constitutional scrutiny including strict scrutiny, reverse the judgment below, and leave for another day the question of what standard applies in the absence of a viability rule. The Court could hold that the State’s interests in protecting unborn life, women’s health, and the medical profession’s integrity are, at a minimum, compelling at 15 weeks’ gestation—when risks to women have increased considerably […]; when the child’s basic physiological functions are all present, his or her vital organs are functioning, and he or she can open and close fingers, make sucking motions, and sense stimuli from outside the womb […]; and thus when a doctor would be extinguishing a life that has clearly taken on the human form. The Court could hold that the Act serves those “compelling interest[s]” in a “narrowly tailored” way. […] It prohibits abortions after 15 weeks’ gestation except when a woman’s health is at risk (the medical-emergency exception) or when the unborn life is likely not to survive outside the womb […].
Second, and alternatively, this Court could reject a viability rule, clarify the undue-burden standard, and reverse on the ground that the Act does not impose an undue burden. On this approach, the Court could hold that the undue-burden standard is “a standard of general application” […] that does not categorically bar prohibitions of pre-viability abortions. That holding would draw some support from the fact that Casey upheld restrictions on abortion that would prohibit some pre-viability abortions. […] (upholding 24-hour waiting period, which would prohibit pre-viability abortions sought the day before viability); […] (upholding parental-consent provision, which would prohibit abortions for minors who could not secure consent or a judicial bypass). Casey upheld those provisions on the ground that they did not “constitute an undue burden.” […]
Applying that approach here, this Court could hold that a State may prohibit elective abortions before viability if it does not impose a substantial obstacle to “a significant number of women” seeking abortions. Casey…. (assessing facial challenge by looking to whether abortion restriction “will operate as a substantial obstacle” “in a large fraction of the cases in which” it “is relevant”). Respondents allege that they do not perform abortions after 16 weeks’ gestation, so the Act reduces by only one week the time in which abortions are available in Mississippi. Under no sound measure of the Act’s facial validity does it impose an unconstitutional burden […] (providing data indicating that in 2017 at most 4.5% of the women who obtained abortions from respondents did so after 15 weeks’ gestation). Indeed, given that the vast majority of abortions take place in the first trimester, a 15-week law like the Act does not pose an undue burden because it does not “prohibit any woman from making the ultimate decision to terminate her pregnancy.” […] It just prevents a woman from doing so when the health risks are magnified, when the unborn child has fully taken on “the human form,” […] and when the typical method of accomplishing it is (a State could conclude) as “brutal” and “gruesome” as what the Court permitted Congress to ban in Gonzales […]. The Act also provides medical-emergency and severe-fetal-abnormality exceptions, which confirm that there is no undue burden. And if this Court believes that its existing approach to assessing facial challenges to abortion restrictions does not allow this result, that is another reason to reject Casey outright.
The brief concludes: “At least it should reject a viability rule and uphold the Act. But the best resolution is overruling Roe and Casey and upholding the Act under rational-basis review. Only that approach will eliminate the grave errors of Roe and Casey, restore workability, pare back decades of negative consequences, and allow the people to address this hard issue.”