Mississippi Brief in <i>Dobbs</i> Calls for Overruling of <i>Roe</i> and <i>Casey</i>

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The state of Mississippi has just filed its merits brief in Dobbs v. Jackson Women’s Health Organization, the big abortion case to be decided by the Supreme Court next term. At issue in the case is Mississippi’s Gestational Age Act, enacted in 2018, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality.

It is difficult to see how the Court could rule in favor of Mississippi without overruling Roe v. Wade and Planned Parenthood v. Casey, so I’m glad to see Mississippi’s strong and straightforward call for those cases to be overruled. Here is the introduction to the state’s brief:

On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.

This case is made hard only because Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), hold that the Constitution protects a right to abortion. Under those cases, a state law restricting abortion may not pose an “undue burden” on obtaining an abortion before viability. 505 U.S. at 877 (plurality opinion). And “[b]efore viability,” this Court has said, a State may not maintain “a prohibition of abortion,” id. at 846—despite the State’s “important interests” in protecting unborn life and women’s health, Roe, 410 U.S. at 154. Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability.

Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.

Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. 410 U.S. at 152-53. 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. See 505 U.S. at 846-53. And Casey’s defense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” id. at 851, 853—fails. Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, “the purposeful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980). So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.

Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context. A court cannot “objectively … weigh[ ]” or “meaningful[ly] … compare” the “imponderable values” involved. June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103, 2136 (2020) (Roberts, C.J., concurring in judgment). Heightened scrutiny—be it the undue-burden standard or another heightened standard—is also “a completely unworkable method of accommodating” the state interests “in the abortion context.” City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 454 (1983) (O’Connor, J., dissenting). While crediting States with important interests, Roe and Casey impede States from advancing them. Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests. That is flawed. If a State’s interests are “compelling” enough after viability to support a prohibition, they are “equally compelling before” then. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting).

Roe and Casey have inflicted significant damage. Those cases “disserve[ ] principles of democratic self-governance,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985), by “plac[ing]” one of the most important, contested policy issues of our time largely “outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse. See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385-86 (1985) (“Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”). Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve. And Roe and Casey have produced a jurisprudence that is at war with the demand that this Court act based on neutral principles. Abortion caselaw is pervaded by special rules—the undue-burden standard, the large-fraction test, and more—that feed the perception that “when it comes to abortion” this Court does not “evenhandedly apply[ ]” the law. Thornburgh, 476 U.S. at 814 (O’Connor, J., dissenting). Casey retained Roe’s central holding largely on the view that overruling it would hurt this Court’s legitimacy. 505 U.S. at 864-69. The last 30 years show the opposite. Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court.

The march of progress has left Roe and Casey behind. Those cases maintained that an unwanted pregnancy could doom women to “a distressful life and future,” Roe, 410 U.S. at 153, that abortion is a needed complement to contraception, Casey, 505 U.S. at 856, and that viability marked a sensible point for when state interests in unborn life become compelling, id. at 860. Factual developments undercut those assessments. Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability. States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date.

Reliance interests do not support retaining Roe and Casey. Almost all of this Court’s abortion cases have been fractured, with many Justices questioning Roe’s central premises. The people have long been “on notice” of “misgivings” on this Court about Roe and Casey. Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018). And where, as with the undue-burden standard, precedents “do[ ] not provide a clear or easily applicable standard,” “arguments for reliance based on [their] clarity are misplaced.” Ibid. (internal quotation marks omitted). That abortion has remained a wholly unsettled policy issue also undermines reliance on Roe and Casey. Casey maintained that societal reliance interests favored retaining Roe. 505 U.S. at 855-56. Developments since Roe tell a different story. Innumerable women and mothers have reached the highest echelons of economic and social life independent of the right endorsed in those cases. Sweeping policy advances now promote women’s full pursuit of both career and family. And many States have already accounted for Roe and Casey’s overruling.

Overruling Roe and Casey makes resolution of this case straightforward. 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. The court of appeals’ judgment affirming a permanent injunction of the State’s law should be reversed.

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