Dobbs
v.
Jackson Women’s Health Org.
ACLL Role: Amicus
Case Start Date: March 18, 2019
Deciding Court: U.S. Supreme Court
Original Court: U.S. District Court for the Southern District of Mississippi
Practice Area(s): Limited Government
ACLL Role:
Case Start Date:
Deciding Court:
Original Court:
Practice Area(s):
Amicus
March 19, 2018
U.S. Supreme Court
U.S. District Court for the Southern District of Mississippi
Strong Families, Limited Government
CASE SNAPSHOT
In 2018, Mississippi enacted a law that prohibited abortions after 15 weeks. Mississippi’s sole abortion provider sued, arguing that this law violated Roe v. Wade and its progeny. The trial court agreed, and the Fifth Circuit affirmed on appeal. Mississippi asked the Supreme Court to take the case, and it agreed. The Court limited the question presented to whether all bans on abortion before the point of viability are unconstitutional. ACLL filed an amicus curiae brief making two points. First, the viability standard should be discarded because it is illogical and does not comport with other areas of the law. Second, the Court should not only reconsider the viability standard itself, but it should also take this opportunity to reconsider its abortion decisions altogether and throw out Roe and its progeny.
STATUS
ACLL filed a friend-of-the-court brief at the Supreme Court on July 22, 2021.
FOR THE MEDIA
CASE SUMMARY
Background
In 2018, Mississippi passed House Bill 1510, which prohibited abortions in that state after 15 weeks. Back in 1973, the Supreme Court held in Roe v. Wade that a state could not prohibit abortions before the point of viability, which is the point at which a baby could survive outside the womb. While Planned Parenthood v. Casey made some adjustments to Roe’s framework in 1992, it kept the viability rule as the point before which the states could not prohibit abortions.
One of the difficulties with the viability standard is that it is hard to discern exactly when the baby becomes “viable.” The conventional wisdom was that it is sometime between 20-24 weeks. Thus, before Mississippi passed this law, most of the states did not attempt to ban abortions before 20 weeks. By banning abortion after 15 weeks, Mississippi knew it would have to fight to defend its law, and it was prepared to do so.
On the same day that the law was enacted, Mississippi’s sole abortion provider sued the state, claiming that the law was unconstitutional under Roe and Casey. The trial court agreed and struck it down. The U.S Court of Appeals for the Fifth Circuit affirmed on appeal over a reluctant concurrence by Judge Ho, who acknowledged that the Constitution does not protect a right to abortion but nevertheless felt constrained by Supreme Court precedent to rule the way that he did.
Mississippi asked the Supreme Court to take the case, raising several questions for the Court to consider. The Supreme Court agreed to take the case but limited discussion to the broadest question presented: whether all previability bans on abortion are unconstitutional.
ACLL filed an amicus brief raising two points. First, the viability standard should be discarded. Second, because it would be impossible for the Court to replace the viability standard without wrestling with what the Constitution says, the Court should take this opportunity to not only discard the viability standard but its entire abortion jurisprudence, since it has no basis in the Constitution and has cost over 60 million innocent lives.
Problems with the Viability Standard
We wanted to lead off with discussing why the Supreme Court should pull back on the viability standard in case it wasn’t willing to reconsider Roe as a whole. In considering whether to overrule a precedent (like the viability standard), the Supreme Court doesn’t just ask whether the precedent it question is wrong. It should be that simple, as Justice Thomas has argued. Nevertheless, the Court often looks at other factors, including whether the precedent is consistent with other areas of the law or is an outlier. It also asks whether the decision was well-reasoned. We addressed both of those points.
First, Alabama’s Chief Justice Tom Parker has probably been the nation’s leading judge in explaining how the Supreme Court’s abortion jurisprudence is inconsistent with other areas of the law, which treat unborn children as people. For instance, criminal law in many states protects the unborn by making the killing of a child in utero grounds for imposing the death penalty. Most states likewise allow a child to sue for injuries done to him in utero. Property law has long held that an unborn child can have inheritance rights. These, and other areas of the law, all treat unborn children as people, and the viability standard plays little to no role in that equation. Drawing on Chief Justice Parker’s writings, ACLL argued that the viability standard is therefore an outlier in laws governing the rights of the unborn.
We also argued that the viability standard is not well-reasoned. Taken to its conclusion, the Supreme Court’s logic would mean that whenever a person cannot survive without the assistance of another, the latter may kill him if he becomes too much of a burden. Under that reasoning, there is no reason why a mother could not kill her nursing child, why family members could not kill disabled family members, or why children could not euthanize their aging parents. Since these propositions are horrifying, it is likewise horrifying that a mother should be able to kill her unborn child simply because he cannot survive without her.
The More Fundamental Problem: Roe Is Unconstitutional
We did not want to stop with repealing the viability standard, however. Since the Supreme Court would necessarily have to wrestle with how much of a right to abortion would remain if the viability standard were repealed, we urged the Court to recognize that the Constitution does not protect a right to abortion at all. Consequently, Roe and its progeny have to be thrown out.
We crafted our strategy around the six conservative-leaning justices on the Court. All of them agree that the judiciary’s role is to apply the law, not to make it. Consequently, the major theme was that the Court crossed the line from applying law to creating law in Roe.
First, we provided an originalist analysis that examined the original intent of the Fourteenth Amendment, which showed that it was never intended to protect the right to abortion. Second, we examined the Court’s traditional Fourteenth Amendment analysis, which asks whether a right is “deeply rooted in this Nation’s history and traditions,” and we answered the question in the negative. Finally, we showed how Roe was a continuation of a line of cases, starting with Dred Scott, where judges read their own personal philosophies of liberty into the Constitution. Those decisions were not only grievously wrong, but the also brought shame to the Court. Finally, we argued that the doctrine of stare decisis, both from an originalist perspective and as the Court has interpreted it, does not preclude the Court from overruling Roe and its progeny.
The Ultimate Goal: Recognizing the Personhood of the Unborn
The Fourteenth Amendment guarantees that a state may not deprive any “person” of life, liberty, or property without due process of law and that the states may not deprive any “person” of equal protection of the laws. Thus, if unborn children are “people,” then the Constitution may not require just the overruling of Roe but the inverse of Roe. Overruling Roe would make abortion a states’ issue. That is better than what we have now, but the Constitution may actually forbid the States from legalizing abortion. If the states protect people from murder, and if unborn children are people, then the states may not deny them the protection from murder that they afford everyone else.
We briefly presented the case that unborn children are “people” within the meaning of the Fourteenth Amendment, and we asked the Court to recognize them as such. However, if the Court was unwilling to go that far in this case, then we asked them to at least refrain from closing the door on considering that question in the future. The dominant view within conservative legal circles is that abortion is solely a states’ issue. Because we disagree, we wanted to ensure that we would have the chance to make our case in the future.
The Ultimate Goal: Recognizing the Personhood of the Unborn
A strong family is one where a child never has to fear for his life, whether inside the womb or out. There should be no safer place on earth for a child than in his mother’s womb. The protection of innocent life is a necessary component for strong families, because it is impossible to build strong families without children.
Overruling Roe also serves the purpose of protecting limited government. The Constitution gives the federal judiciary the power to protect rights that are actually in the Constitution, which does not include the right to abortion. When the courts exceed their constitutional authority and start governing in matters beyond their jurisdiction, they increase the size of government. Forcing the courts to stay within their constitutional parameters is therefore essential to fighting for limited government.
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