No. 19-1392

In the Supreme Court of the United States__________________

THOMAS E. DOBBS, STATE HEALTH OFFICER OF THEMISSISSIPPI DEPARTMENT OF HEALTH, et al.,

Petitioners,v.

JACKSON WOMEN’S HEALTH ORGANIZATION, et al.,Respondents.

__________________

On Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Fifth Circuit__________________

BRIEF OF AMICI CURIAE THE AMERICANASSOCIATION OF PRO-LIFE OBSTETRICIANS &GYNECOLOGISTS (AAPLOG), RIGHT TO LIFE OF

MICHIGAN, INC., AND THE NATIONAL CATHOLICBIOETHICS CENTER IN SUPPORT OF

PETITIONERS__________________

WILLIAM WAGNER Counsel of RecordERIN ELIZABETH MERSINOGREAT LAKES JUSTICE CENTER5600 W. Mount Hope HwyLansing, MI 48917(517) 643-1765Prof.WWJD@gmail.org

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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QUESTIONS PRESENTED

1. Whether all pre-viability prohibitions on electiveabortions are unconstitutional.

2. Whether the validity of a pre-viability law thatprotects women’s health, the dignity of unbornchildren, and the integrity of the medical professionand society should be analyzed under Casey’s “undueburden” standard or Hellerstedt’s balancing of benefitsand burdens.

3. Whether abortion providers have third-partystanding to invalidate a law that protects women’shealth from the dangers of the late-term abortions.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv

STATEMENT OF IDENTITY AND INTERESTSOF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. THE FOURTEENTH AMENDMENT DOESNOT INCLUDE A LIBERTY INTEREST TOABORT ALL PRE-VIABILITY UNBORNCHILDREN . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Historical Evidence Demonstrates thatthe Constitution Does Not Require a BanAgainst All State Regulation of Pre-viability Abortion . . . . . . . . . . . . . . . . . . . . 8

B. The Extra-Constitutional Holding in RoeUndermines Representative ConstitutionalGovernance and the Rule of Law . . . . . . . . . 10

II. MISSISSIPPI CAN ENACT SECONDTRIMESTER ABORTION REGULATIONTO PROMOTE ITS LEGITIMATE STATEINTERESTS IN PROTECTING THE LIFEOF THE UNBORN AND PROTECTINGWOMEN’S HEALTH. . . . . . . . . . . . . . . . . . . 15

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A. Mississippi Holds a ProfoundGovernmental Interest in the InherentValue of Life at the Gestational Age ofFifteen to Twenty Weeks . . . . . . . . . . . . . 17

B. Mississippi’s Law Rightly ProtectsWomen from the Adverse Effects of Late-Term Abortion . . . . . . . . . . . . . . . . . . . . . 20

III. ABORTION PROVIDERS, SEEKING TOINVALIDATE MISSISSIPPI’S LAW THATPROTECTS WOMEN FROM THENEGATIVE HEALTH CONSEQUENCESASSOCIATED WITH LATE TERMABORTION, DO NOT REPRESENT THESAME INTERESTS AS A PREGNANTMOTHER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES

CASES

Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006). . . . . . . . . . . . . . . . . . . . . . . 24

Doe v. Smith, 486 U.S. 1308 (1988). . . . . . . . . . . . . . . . . . . . . . 26

Dred Scott v. Sandford, 60 U.S. 393 (1857). . . . . . . . . . . . . . . . . . . . 6, 7, 10

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . 24, 25

Gibbons v. Ogden, 9 U.S. (1 Wheat.) 194 (1824). . . . . . . . . . . . . . . . 12

Gonzales v. Carhart, 550 U.S. 124 (2007). . . . . . . . . . . . . . . 5, 15, 20, 22

Harris v. McRae, 448 U.S. 297 (1980). . . . . . . . . . . . . . . . . . . . . . . 16

Hodgson v. Minnesota, 497 U.S. 417 (1990). . . . . . . . . . . . . . . . . . . . . . . 16

June Med. Servs. L. L. C. v. Russo, No. 18-1323, 2020 WL 3492640 (U.S. June 29, 2020) . . . . . . . . . . . . . . . . . . . . 5, 26

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 12

Marsh v. Chambers, 463 U.S. 783 (1983). . . . . . . . . . . . . . . . . . . . . . . . 8

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McCulloch v. Maryland, 17 U.S. 316 (1819). . . . . . . . . . . . . . . . . . . . . . . . 11

Nat’l Fed’n of Indep Bus v. Sebelius, 132 S. Ct. 2566 (2012). . . . . . . . . . . . . . . . . . . . . 11

O’Neill v. Morse, 385 Mich. 130 (1971). . . . . . . . . . . . . . . . . . . . . . 20

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). . . . . . . . . . . . . . . . . . . passim

Roe v. Wade, 410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . passim

Tileston v. Ullman, 318 U.S. 44 (1943). . . . . . . . . . . . . . . . . . . . . . . . 24

Warth v. Seldin, 422 U.S. 490 (1975). . . . . . . . . . . . . . . . . . . . 24, 27

Webster v. Reproductive Health Servs., 492 U.S. 490 (1989). . . . . . . . . . . . . . . . . . . . . . . 16

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). . . . . . . . . . . . . . 4, 9, 10, 16

Womack v. Buchhorn, 384 Mich. 718 (1971). . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTION AND STATUTES

U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

U.S. Const., art. II . . . . . . . . . . . . . . . . . . . . . . . . . . 13

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 6

MICH. COMP. LAWS § 333.7404 . . . . . . . . . . . . . . . . . 20

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MICH. COMP. LAWS § 600.2045 . . . . . . . . . . . . . . . . . 20

MISS. CODE ANN. 41-41-191 (2018) . . . . . . . . . . . . . . 3

OTHER AUTHORITIES

Alexander M. Bickel, The Original Understandingand the Segregation Decision, 69 HARV. L. REV.1 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Brutus, The Power of the Judiciary, The New-YorkJournal, New York City, March 20, 1788,http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/78.htm . . . . . . . . . . 14

CONG. GLOBE, 39TH CONG., 1ST SESS. (1866). . . . . 8, 9

THE FEDERALIST NO. 78 (Alexander Hamilton). . . . 12

https://aaplog.org/wp-content/uploads/2019/08/CO-3-Post-Viability-Abortion-Bans.pdf . . . . 20, 22, 23

https://www.ehd.org/gallery/436/Hiding-the-Face#content . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

https://www.ehd.org/movies/231/Responds-to-Touch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

https://www.ehd.org/your-life-before-birth-video/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

https://www.ncbi.nlm.nih.gov/pmc/articles/PMCarticles/PMC4616906/ . . . . . . . . . . . . . . . . . . . . . . 19

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3066627/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

https://pubmed.ncbi.nlm.nih.gov/15051566/ . . . 22, 23

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Thomas Jefferson, October 31, 1823, Letter fromThomas Jefferson to Adamantios Coray,https://founders.archives.gov/documents/Jefferson/98-01-02-3837 . . . . . . . . . . . . . . . . . . . . . . . . 13

Thomas Jefferson, September 6, 1819 Letter fromThomas Jefferson to Spencer Roane, https://founders.archives.gov/documents/Jefferson/98-01-02-0734 . . . . . . . . . . . . . . . . . . . . . . . . 15

Richard Kluger, SIMPLE JUSTICE: THE HISTORY OFBROWN V. BOARD OF EDUCATION AND BLACKAMERICA’S STRUGGLE FOR EQUALITY (1sted.1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Paul Benjamin Linton, The Legal Status of theUnborn Child under State Law, 6 U. ST. THOMASJ. LAW & PUB. POL’Y 141 (2012) . . . . . . . . . . . . . 20

Lennart Nilsson, Foetus 18 weeks,http://100photos.time.com/photos/lennart-nilsson-fetus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

George Santayana, THE LIFE OF REASON, Scribner’s, (1905) . . . . . . . . . . . . . . . . . . . . . . . . . 7

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STATEMENT OF IDENTITYAND INTERESTS OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Amici Curiae,the American Association of Pro-Life Obstetricians &Gynecologists (AAPLOG), Right to Life of Michigan,Inc., and the National Catholic Bioethics Center,submit this brief.1

The American Association of Pro-Life Obstetricians& Gynecologists (AAPLOG) is a nonprofit professionalmedical organization with over 4,000 obstetrician-gynecologist members and associates. Since 1973,AAPLOG has strived to ensure that pregnant womenreceive the highest quality medical care and are fullyinformed of the effects of abortion, including thepotential long-term consequences abortion has onwomen’s health. Before discontinuing the designation,the American College of Obstetricians andGynecologists recognized AAPLOG as a special interestgroup for forty consecutive years. AAPLOG offers bothhealthcare providers and the public a betterunderstanding of abortion-related health risks, such asdepression, substance abuse, suicide, subsequent

1 Amici Curiae sought and received consent from counsel of recordfor both the Petitioner and Respondent for the filing of this brief. Pursuant to Rule 37(a), amici curiae gave 10-days’ notice of itsintent to file this brief to all counsel. Amici Curiae further statethat no counsel for any party authored this brief in whole or inpart, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief. Noperson or entity, other than amici curiae, its members or itscounsel, made a monetary contribution to the preparation orsubmission of this brief.

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preterm birth, and placenta previa. AAPLOG educatesthe public truthfully about human development andthe monumental advancements made in this field overthe last several years. AAPLOG exists to encourageand equip its members and medical practitioners toprovide an evidence-based rationale for defending thelives of both the pregnant mother and her unborn child.

Right to Life of Michigan, Inc., is a non-profit andnonpartisan organization that believes every humanbeing holds the inalienable right to life from conceptionuntil natural death and that laws should be interpretedby the court in a manner consistent with this truth. Right to Life of Michigan strives to achieve its goals byeducating the public on life issues, motivatingMichigan citizenry to action, encouraging communitysupport for pregnant women, and participating inprograms that foster respect and protection for humanlife. Right to Life of Michigan, with its hundreds ofthousands of members throughout the State ofMichigan, dedicates its work to protecting the sanctityof human life by supporting elected officials, publicpolicy, and legislation that respects all human life,including the lives of the preborn.

The National Catholic Bioethics Center is a non-profit research and educational institute that appliesthe Catholic Church’s moral teachings to ethical issuesthat arise in healthcare and the life sciences. TheBioethics Center represents thousands of members,many of whom are institutions. In collaboration withtwo graduate programs that provide degrees to dually-enrolled students concentrating in bioethics, the Centeradministers a certification program in bioethics. The

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Center also provides expert consultation regarding theapplication of Catholic moral teachings to ethical issuesthat impact the dignity of human life. In recent years,healthcare providers from both the Center’s membersand non-members alike have increasingly sought theCenter’s counsel pertaining to governmental actionaffecting sincerely held religious belief and moralvalues.

Amici Curiae have contributed many amicus curiaebriefs throughout the years in federal and stateappellate courts, including before the United StatesSupreme Court. Amici Curiae seek to advance theinterests of its members and the public by educatinghow both the mother and her pre-born child shouldreceive appropriate legal protection through theenactment of moral and just laws. Amici Curiaeanalyze three central reasons why this Court shouldgrant certiorari in this case and uphold Mississippi’slaw that limits voluntary abortion after the gestationalage of fifteen weeks.

BACKGROUND

The Mississippi Legislature enacted the“Gestational Age Act” limiting the abortion of a pre-born infant after his or her gestational age of fifteenweeks, except in cases of medical emergency or severefetal abnormality. MISS. CODE ANN. 41-41-191 (2018). Since Mississippi already limited abortions takingplace after the gestational age of twenty weeks, the lawexclusively regulated abortion of pre-born childrenbetween fifteen and twenty weeks of development. Pet.at 17.

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Over the last forty years, significant medicaladvancements have changed, and continue to change,the landscape of obstetrics and gynecology in theUnited States. The district court, however, applied thescientific standard set forth in Roe v. Wade, 410 U.S.113, 163-65 (1973), and sought the answer to only onequestion: whether a pre-born child of fifteen weekgestational age is viable. Pet. App. 60a. The districtcourt ignored the undue burden standard set forth bythis Court in Hellerstedt and held that Roe creates abright line right to pre-viability abortion. WholeWoman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016);Pet. App. 58-66a. The Court of Appeals for the FifthCircuit affirmed, finding that the lower court need notconsider this Court’s undue burden standard or balancethe State’s legitimate interests for enacting the law. Pet. App. 12a.

SUMMARY OF THE ARGUMENT

States have the right to prohibit pre-viabilityabortion to protect women’s health, the dignity of pre-born children, and the integrity of the medicalprofession. Given the advancements in medicine andtechnology, this Court should re-examine and clarifythe viability standard set by Roe v. Wade, 410 U.S. 113,163-65 (1973).

The Fifth Circuit held: “States may regulateabortion procedures prior to viability so long as they donot impose an undue burden on the women’s right, butthey may not ban abortions. The law at issue is a ban.” Pet. App. at 2a. Mississippi’s law, however, is not aban—it is a limit, allowing abortion in emergency casesand upon diagnosis of severe fetal abnormality. This

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Court has recognized that a “state’s interest inprotecting unborn life can justify a pre-viabilityrestriction on abortion.” Gonzales v. Carhart, 550 U.S.124 (2007). Here, the interests in the health of thepregnant mother, the humanity of the pre-born child,and the integrity of the medical profession allow thestate to limit unnecessary and inhumane abortionpractices.

This Court in Roe and its progenitor precedentsincorrectly concluded that the meaning of theFourteenth Amendment included a liberty interest inthe right to abort an unborn child as part of one’spersonal autonomy. Not a single word uttered orwritten, in the promulgation of the FourteenthAmendment, even remotely suggests that theAmendment includes a right to abortion. Undeniably,it is clear from the historical discussion that theauthors of the Amendment never contemplatedincluding such a diabolical entitlement. Indeed,judicially contriving such a liberty interest destabilizesrepresentative constitutional governance because itexceeds the scope of the Judicial Power and fails toadequately address the profound government interestin protecting unborn human life. Furthermore, as fourJustices of this Court just recognized, abortionists andabortion clinics, who profit from the sale of abortion, donot have standing to challenge a law affecting womenand pre-born children. June Med. Servs. L. L. C. v.Russo, No. 18-1323, 2020 WL 3492640 (U.S. June 29,2020).

Considering the advancements in medical scienceover the past forty years and the legal instability of the

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viability standard set forth in Roe, this Court shouldgrant certiorari and reverse the decision of the FifthCircuit.

ARGUMENT

I. THE FOURTEENTH AMENDMENT DOESNOT INCLUDE A LIBERTY INTEREST TOABORT ALL PRE-VIABILITY UNBORNCHILDREN.

The Fourteenth Amendment to the United StatesConstitution requires that no “State deprive any personof life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.

The Constitution is not a set of guidelines but aframework on which we the people constructed ourgovernment and our legal system. The words of theConstitution both create this Court’s authority and giveit definition. Our Country’s founders crafted its wordsquite clearly to express a simple meaning. Faithfuladherence to our Constitution serves as the touchstonefor measuring the fulfillment of this Court’s solemnduty. Every Justice taking the oath of office swears touphold the Constitution as written, not as he or sheprefers it be written.

Honestly discerning and applying the truthfulmeaning that the Drafters originally embodied in theConstitution’s language should be this Court’s highcalling. To the contrary, using those words instead tomatch an outcome that a judge personally prefers is thefirst step on the path to tyranny. For example, in DredScott v. Sandford, this Court deemed some human lifeunworthy of constitutional protection based on the

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color of a person’s skin. 60 U.S. 393 (1857). Thatjudicially contrived policy trampled upon the truth ofthe value of all human life, further dividing a dividednation, and precipitating a bloody civil war. After theCivil War, the people of the United States formallyinvalidated Dred Scott.

Proving that “those who cannot remember the pastare condemned to repeat it,”2 this Court in Roe, 410U.S. 113, again deemed some human life unworthy ofconstitutional protection. The Court incorrectlydeclared provisions of the Fourteenth Amendmentincluded a liberty interest in aborting an unborn childbased upon the child’s age.

In the matter now before this Court, the FifthCircuit held that Mississippi’s law interferes with theFourteenth Amendment liberty interest found to existin Roe and its progenitor precedents. The Fifth Circuitheld that this interest precluded a State from placinglimits on pre-viability abortion, even when those limitsare based upon women’s health, the development of theunborn child, and the integrity of the medicalprofession.

The advancements in medicine since in 1973 requirethis Court to revisit its core precedent in Roe andassess whether the Fourteenth Amendment thwarts allstate regulation pertaining to pre-viability abortion.

2 George Santayana, THE LIFE OF REASON, at 284, Scribner’s,(1905).

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A. Historical Evidence Demonstrates thatthe Constitution Does Not Require aBan Against All State Regulation of Pre-viability Abortion.

This Court has explained how historical evidencereveals not just what the draftsmen intended aconstitutional provision to mean, but also how theythought it should be applied. See, e.g., Marsh v.Chambers, 463 U.S. 783, 790 (1983). The debates ofCongress and documents of the state legislatures thatratified the Fourteenth Amendment, provide “the mostdirect and unimpeachable indication of originalpurpose . . . .” Alexander M. Bickel, The OriginalUnderstanding and the Segregation Decision, 69 HARV.L. REV. 1, 7 (1955).

Most of the discussion in the first session of the39th Congress related to the subject matter of theFourteenth Amendment. CONG. GLOBE, 39TH CONG.,1ST SESS. passim (1866). This discussion includedgovernance of the South, readmission of SouthernStates, Union loyalty, issues concerning the newlyfreed Black race, and the distribution of powersbetween the states and the federal government. Id. The bulk of the session-long debate concerned thefollowing measures: the Freedman’s Bureau Bill(vetoed by the president), the Civil Rights Act of 1866, (enacted over a veto), and the Fourteenth Amendmentitself. Id. The first two of these measures werestatutes, passed in response to the Black Codes. Id. Their premise was the protection of the newly freedblack race. Id.; Richard Kluger, SIMPLE JUSTICE: THE

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HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACKAMERICA’S STRUGGLE FOR EQUALITY 46 (1st ed.1976).

Not a single word uttered or written in thepromulgation of the Fourteenth Amendment suggeststhat the Amendment included a liberty interest in theright to end the life of a pre-born child withoutregulation, if that decision occurs within the first orsecond trimester of the child’s gestation. CONG. GLOBE,39TH CONG., 1ST SESS. passim (1866). Indeed, it isbeyond dispute that the historical discussion of theauthors of the Amendment never contemplatedincluding such a provision. Id.

Moreover, for the Roe Court to reach the result itdid, it “had to find within the scope of the FourteenthAmendment a right that was apparently completelyunknown to the drafters of the Amendment.” Roe, 410U.S. at 174 (Rehnquist, C.J., dissenting). To illustrate,Connecticut proscribed abortion as early as 1821. Id. By the time adoption of the Fourteenth Amendmentoccurred in 1868, state and territorial legislatures hadenacted at least thirty six laws proscribing abortion. Id. at 174-175.

Casey and Hellerstedt, therefore, incorrectlypresumed the meaning of the Fourteenth Amendmentincluded a right to abortion. This Court should correctthat error by acknowledging the invalidity of Roe’sjurisprudence. Correctly understood, the FourteenthAmendment does not include a liberty interest to abortan unborn child, including unborn children at fifteen totwenty weeks gestational age. The Mississippi statuteat issue, therefore, cannot violate the FourteenthAmendment. Planned Parenthood of Se. Pa. v. Casey,

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505 U.S. 833 (1992); Whole Woman’s Health v.Hellerstedt, 136 S. Ct. 2292 (2016).

Policy arguments relying upon stare decisis hold nomerit in cases like Dred Scott or Roe, when what theCourt decision relied upon was incorrect and extra-constitutional. Respondents assume that simplybecause the decisions in Roe and its progeny occurred,they must stand. But incorrect decisions requirecorrection, not preservation. This Court should notadhere to Roe’s error for the sake of “predictability” or“consistency”. Being consistently and predictablywrong is no virtue. To be sure, clarifying whether toanalyze laws under Casey’s “undue burden” standard,or Hellerstedt’s balancing of benefits and burdens,provides some predictability. Rather than providingpredictability in the application of wrongly decidedprecedent, though, this Court ought to set a new life-affirming precedent in accordance with theConstitution; it should do so now, before its currentprecedent deprives another human life of his or herliberty.

B. The Extra-Constitutional Holding in RoeUndermines Representative ConstitutionalGovernance and the Rule of Law.

Proponents of evolving judicial preferences wronglyclaim that by amending the Constitution from thebench, unelected judges can bestow new meanings andeven new rights and understandings for the people. Inthis jurisprudential wonderland, judges wrongly seethe Constitution as an evolving organism, the meaningof which they believe their office empowers them to manipulate. Becoming Platonic philosopher kings,

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they rule by judicial fiat, unbound by the constraints ofthe Constitution’s actual language. At great risk to ourRepublic, the Court’s abortion decisions embed thistyrannical principle in American constitutionaljurisprudence.

Roe, with its progenitor precedents and progeny,supplants our politically accountable system ofgovernance with an unelected judiciary’s own proteanpreferences. In doing so, this Court’s abortionjurisprudence exceeds the scope of the Judicial Powerand therefore undermines the judiciary’s institutionallegitimacy.

As an initial matter, it remains undisputed that

[t]he Federal Government ‘is acknowledged byall, to be one of enumerated powers.’ That is,rather than granting general authority toperform all the conceivable functions ofgovernment, the Constitution lists, orenumerates, the Federal Government’spowers. . . . The enumeration of powers is alsoa limitation of powers, because ‘[t]heenumeration presupposes something notenumerated.’ The Constitution’s expressconferral of some powers makes clear that itdoes not grant others. And the FederalGovernment ‘can exercise only the powersgranted to it.

Cf. Nat’l Fed’n of Indep Bus v. Sebelius, 132 S. Ct.2566, 2577 (2012) (internal citations omitted) (quotingMcCulloch v. Maryland, 17 U.S. 316, 404-405 (1819));

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U.S. Const. art. I, § 8, cls. 5, 7, 12; Gibbons v. Ogden, 9U.S. (1 Wheat.), 194-95 (1824).

Nothing in Article III empowers the Court to changeor “evolve” the Constitution. Moreover, nothing inMarbury v. Madison’s ubiquitous assertion that it isthe province of the Court to say what the law is,empowers the Court to say instead what it prefers thelaw to be. 5 U.S. (1 Cranch) 137 (1803). Yet, Roeventured far beyond the scope of its Article III powers,improperly evolving the true understanding of theFourteenth Amendment from something designed toprotect the inherent value of human life, to insteadinclude a liberty interest in the right to pre-viabilityabortion. Extra-constitutional precedent amounts tojudicially created law against which our founderswarned.

Hamilton explains why wilful judicial policymakingimproperly conflicts with the Constitution’s design forrepublican governance:

It can be of no weight to say that the courts, onthe pretense of a repugnancy, may substitutetheir own pleasure to the constitutionalintentions ....The courts must declare the senseof the law; and if they should be disposed toexercise WILL instead of JUDGMENT, theconsequence would equally be the substitution oftheir pleasure to that of the legislative body.

THE FEDERALIST NO. 78 (Alexander Hamilton).

The Constitution, therefore, assumes ajurisprudence obligating the judiciary to honestly applyconstitutional provisions according to their true

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meaning. When, as in Roe, policy preferences ofpolitically unaccountable judges instead supplantpolicies of the people’s representatives, governmentceases to represent the people. As early as 1823,Thomas Jefferson observed the threat to republicangovernance from the judiciary exercising will instead ofjudgment:

Their decisions, seeming to concern individualsuitors only, pass silent and unheeded by thepublic at large; that these decisions neverthelessbecome law by precedent, sapping by little andlittle the foundations of the Constitution, andworking it’s change by construction, before anyone has perceived that this invisible andhelpless worm has been busily employed inconsuming its substance.

Thomas Jefferson, October 31, 1823, Letter fromThomas Jefferson to Adamantios Coray,https://founders.archives.gov/documents/Jefferson/98-01-02-3837 (last visited July 14, 2020).

The Constitution expressly delegates specificlawmaking powers to the Congress and specificenforcement powers to the President. U.S. Const., arts.§§ I, II. These enumerated powers provide legitimacywhen Congress or the President act pursuant to suchpowers while carrying out their respectiveconstitutional roles. Unlike these enumeratedlegislative and executive powers, the Constitution’sdelegation of the Judicial Power includes no specificenumerated powers to the judiciary to carry out itsconstitutional role of resolving cases andcontroversaries. The judiciary’s duty to apply the Rule

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of Law, as understood and expressed by the people’srepresentatives, preserves this legitimacy.

Under the guise of exercising judicial review, Roe’sban on State regulation of pre-viability abortionactually amends the Constitution. In opposingratification of the Constitution, the anti-federalistsforesaw the threat to representative governance froman unchecked independent judiciary:

…[the authors of the constitution] have madethe judges independent, in the fullest sense ofthe word. There is no power above them, tocontrol any of their decisions. . . . In short, theyare independent of the people, of the legislature,and of every power under heaven. Men placed inthis situation will generally soon feel themselvesindependent of heaven itself.

Brutus, The Power of the Judiciary, The New-YorkJournal, New York City, March 20, 1788,http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/78.htm (last visited July 14, 2020)(emphasis added).

Thomas Jefferson, although on the other side of thedebate, nonetheless likewise understood how anindependent judiciary could lead to an abuse of power:

The constitution… is a mere thing of wax in thehands of the judiciary, which they may twist,and shape into any form they please. It shouldbe remembered, as an axiom of eternal truth inpolitics, that whatever power in any governmentis independent, is absolute also; in theory only,at first, while the spirit of the people is up, but

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in practice, as fast as that relaxes. Independencecan be trusted nowhere but with the people inmass.

Thomas Jefferson, September 6, 1819 Letter fromT h o m a s J e f f e r s o n t o S p e n c e r R o a n e , https://founders.archives.gov/documents/Jefferson/98-01-02-0734 (last visited July 20, 2020).

The concern of an independent judiciaryundercutting its own institutional legitimacy, continuesto hold merit. The judiciary’s solemn duty requiresadherence to the Rule of Law, as expressed in theConstitution. This duty requires it to resist thetemptation to use its independence, as it did in Roe, toimpose its will over that of the people.

II. MISSISSIPPI CAN ENACT SECONDTRIMESTER ABORTION REGULATION TOPROMOTE ITS LEGITIMATE STATEINTERESTS IN PROTECTING THE LIFEOF THE UNBORN AND PROTECTINGWOMEN’S HEALTH.

This Court has correctly recognized that states holda “legitimate and substantial interest in preserving andpromoting fetal life” and women’s health. See, e.g.,Gonzales v. Carhart (Carhart II), 550 U.S. 124, 145(2007); Casey, 505 U.S. at 871 (recognizing that astate’s interests in protecting the potentiality of humanlife and the health of pregnant women were bothimportant and legitimate). This Court in Roeintimated that these legitimate interests “wereseparate and distinct” and grew “in substantiality asthe woman approaches term.” 410 U.S. at 162-63. The

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Court in Roe determined that “[i]n the second semester,the state interest in maternal health was found to besufficiently substantial to justify regulation reasonablyrelated to that concern. And at viability, usually in thethird trimester, the state interest in protecting thepotential life of the fetus was found to justify a criminalprohibition against abortion.” Harris v. McRae, 448U.S. 297, 313 (1980) (citing Roe, 410 U.S. at 162-63).

This Court departed from the trimester frameworkof Roe. Webster v. Reproductive Health Servs., 492 U.S.490 (1989); Hodgson v. Minnesota, 497 U.S. 417 (1990). And the constitutional standard under which abortionregulation must be scrutinized has transmogrified overtime. Compare Roe, 410 U.S. 113 to Casey, 505 U.S.833 to Hellerstedt, 136 S. Ct. 2292. Yet, the principleset forth in Roe, that a State’s legitimate interestsshould weigh more heavily in the Court’s analysis asthe child develops and as the pregnant mother facesincreased health risks from late-term abortion,remains. Roe, 410 U.S. at 145 (“The factor ofgestational age is of overriding importance.”).

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A. Mississippi Holds a ProfoundGovernmental Interest in the InherentValue of Life at the Gestational Age ofFifteen to Twenty Weeks.

3

Advancements in science now reveal the humanityof a pre-born child between the gestational ages offifteen to twenty weeks. Gone are the days wheresociety can question or reimagine how a child in uterolooks or if the child is merely a compilation of lifelesscells. Actual video of children in the womb reveal theadvanced development of a fetus, especially later in hisor her development from sixteen to twenty weeks. Seehttps://www.ehd.org/your-life-before-birth-video/ (lastvisited July 15, 2020) (displaying pieces of actual videofootage of a child’s development in utero).

3 Actual photograph of a human fetus at eighteen weeks ofgestational development. Lennart Nilsson, Foetus 18 weeks,http://100photos.time.com/photos/lennart-nilsson-fetus (last visitedJuly 14, 2020).

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Mississippi’s law is partially based on legislativefindings pertaining to the advanced development andhumanity of pre-born children at the gestational age offifteen to twenty weeks. Pet. at 7-9. At twenty twodays, the child’s heart begins to beat. https://www.ehd.org/your-life-before-birth-video/ (lastvisited July 15, 2020). At six weeks, the child beginsmoving. Id. At seven weeks, scientists can detect achild’s brainwaves, and the child can move his or herhead and hands. Id. The child displays leg movementsand the startle response. Id. At eight weeks, thechild’s brain exhibits complex development. Id. Thechild begins breathing movements and showspreference for either his or her left or right hand. Id. At nine weeks, the child sucks his or her thumb,swallows, and responds to light touch. Id. At tenweeks, the child’s unique fingerprints are formed on hisor her fingers. Id. At twelve weeks, the child opensand closes his or her mouth and moves his or hertongue. Id. The child’s fingers and hands are also fullyformed by twelve weeks gestation. Id.; see alsohttps://www.ehd.org/movies/231/Responds-to-Touch(last visited July 15, 2020) (displaying video of fetus atfifteen weeks responding to touch). By sixteen weeks,the child’s gender is easily detectable, and the childlooks undeniably human:

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https://www.ehd.org/gallery/436/Hiding-the-Face#content(last visited July 15, 2020) (showing photographic stillof sixteen week ultrasound video of a male fetus hidinghis head away from the touch of the ultrasoundtransducer). By nineteen weeks, the child hears noisesand makes facial expressions when listening to music. See, e.g., https://www.ncbi.nlm.nih.gov/pmc/articles/PMCarticles/PMC4616906/ (last visited July 15, 2020)(finding that neural pathways participating in theauditory–motor system may be developed as early asthe gestational age of sixteen weeks).

The humanity of the pre-born child in the secondtrimester is more apparent today than when Roe wasdecided. This Court should grant certiorari to clarifythe balance between the right to privacy and personal

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autonomy with a State’s ability and right to regulateabortion at this later stage of gestational development.4

B. Mississippi’s Law Rightly ProtectsWomen from the Adverse Effects ofLate-Term Abortion.

Extending elective and unnecessary abortion lateinto the second trimester increases negative healthconsequences. Unlike abortions performed in the firsttrimester, where the fetal bones are soft enough tocollapse into a large bore suction catheter, unbornchildren at the gestational ages of fifteen to twentyweeks cannot fit into a catheter because they are toolarge and “their bones have calcified, making them toofirm to remove [from the womb] by suction alone.”https://aaplog.org/wp-content/uploads/2019/08/CO-3-Post-Viability-Abortion-Bans.pdf (last visited July 16,2020). Therefore, dilation and evacuation (D & E)procedures are required. Id. In Gonzales, this Court

4 Roe’s viability standard is otherwise seemingly rejected inAmerican law pertaining to matters affecting the unborn child’srights. For example, a pregnant mother’s freedom over her bodydoes not legitimize the use of illicit drugs resulting in the death ofthe unborn child. See, e.g., MICH. COMP. LAWS § 333.7404. Likewise, a child in the womb holds property rights, and suchrights can even result in appointment of a guardian ad litem toprotect the unborn child’s interest. See, e.g., MICH. COMP. LAWS

§ 600.2045. Both criminal and civil law recognize the humanity ofthe child in utero. Causes of action exist for wrongful death andother tortious injuries committed against the unborn child, as wellas criminal homicide. See, e.g., Womack v. Buchhorn, 384 Mich.718 (1971); O’Neill v. Morse, 385 Mich. 130 (1971); Paul BenjaminLinton, The Legal Status of the Unborn Child under State Law, 6U. ST. THOMAS J. LAW & PUB. POL’Y 141, 146–48 (2012).

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detailed how abortion in the second trimester isperformed:

Although individual techniques for performing D& E differ, the general steps are the same. Adoctor must first dilate the cervix at least to theextent needed to insert surgical instruments intothe uterus and to maneuver them to evacuatethe fetus. The steps taken to cause dilationdiffer by physician and gestational age of thefetus. A doctor often begins the dilation processby inserting osmotic dilators, such as laminaria(sticks of seaweed), into the cervix. The dilatorscan be used in combination with drugs, such asmisoprostol, that increase dilation. The resultingamount of dilation is not uniform, and a doctordoes not know in advance how an individualpatient will respond. In general the longerdilators remain in the cervix, the more it willdilate. Yet the length of time doctors employosmotic dilators varies. Some may keep dilatorsin the cervix for two days, while others usedilators for a day or less. After sufficientdilation the surgical operation can commence. The woman is placed under general anesthesiaor conscious sedation. The doctor, often guidedby ultrasound, inserts grasping forceps throughthe woman’s cervix and into the uterus to grabthe fetus. The doctor grips a fetal part with theforceps and pulls it back through the cervix andvagina, continuing to pull even after meetingresistance from the cervix. The friction causesthe fetus to tear apart. For example, a leg mightbe ripped off the fetus as it is pulled through the

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cervix and out of the woman. The process ofevacuating the fetus piece by piece continuesuntil it has been completely removed. A doctormay make 10 to 15 passes with the forceps toevacuate the fetus in its entirety, thoughsometimes removal is completed with fewerpasses. Once the fetus has been evacuated, theplacenta and any remaining fetal material aresuctioned or scraped out of the uterus. . . . Somedoctors, especially later in the second trimester,may kill the fetus a day or two before performingthe surgical evacuation. They inject digoxin orpotassium chloride into the fetus, the umbilicalcord, or the amniotic fluid. . . . Other doctorsrefrain from injecting chemical agents, believingit adds risk with little or no medical benefit.

Gonzales, 550 U.S. at 135–36 (internal citationsomitted).

Although similarly abhorrent, the proceduresrequired in a second trimester abortion are undeniablymore destructive than in the first trimester. https://aaplog.org/wp-content/uploads/2019/08/CO-3-Post-Viability-Abortion-Bans.pdf (last visited July 16,2020). Likewise, abortions obtained in the secondtrimester of pregnancy carry greater health risks. Id.;see also https://pubmed.ncbi.nlm.nih.gov/15051566/(last visited July 16, 2020).

Later term abortions cause an increased risk ofpreterm birth in subsequent pregnancies and anincreased risk of adverse psychological outcomes suchas depression, substance abuse and suicide.https://aaplog.org/wp-content/uploads/2019/08/CO-3-

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Post-Viability-Abortion-Bans.pdf (last visited July 16,2020). Empirical data shows that abortions performedin the second trimester pose a far more serious healthrisk to women than abortions performed at an earliergestational age. See, e.g., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3066627/ (last visited July 16, 2020)(“The abortion complication rate is 3%–6% at 12-13weeks gestation and increases to 50% or higher asabortions are performed in the 2nd trimester.”);https://pubmed.ncbi.nlm.nih.gov/15051566/ (last visitedJuly 16, 2020) (“Compared with women whoseabortions were performed at or before 8 weeks ofgestation, women whose abortions were performed inthe second trimester were significantly more likely todie of abortion-related causes.”).

Since late-term abortion poses a more significanthealth risk to women and Mississippi appears to offera legitimate basis for limiting later term abortions, thisCourt should grant certiorari to clarify the interplaybetween the rights of the State and the rights of theindividual manufactured in Roe.

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III. ABORTION PROVIDERS, SEEKING TOINVALIDATE MISSISSIPPI’S LAW THATPROTECTS WOMEN FROM THENEGATIVE HEALTH CONSEQUENCESASSOCIATED WITH LATE TERMABORTION, DO NOT REPRESENT THESAME INTERESTS AS A PREGNANTMOTHER.5

Normally, a plaintiff “cannot rest his claim to reliefon the legal rights or interests of [other] parties.”Warth v. Seldin, 422 U.S. 490, 499 (1975), citingTileston v. Ullman, 318 U.S. 44, 46 (1943) (per curiam)(holding “no basis” existed for permitting a physician“standing to secure an adjudication of his patient’sconstitutional right[s] *** which they do not assert intheir own behalf.”). In Tileston, the physiciancontested a state statute controlling, inter alia, the useof instruments to preclude his patient from conceivinga child. Id. at 46.

Whether characterized as Article III standingrequiring a plaintiff suffer a concrete andparticularized injury, Daimler Chrysler Corp. v. Cuno,547 U.S. 332, 352 (2006); Warth, 422 U.S. at 500, or asprudential standing generally prohibiting “a litigantraising another person’s legal rights,” Respondent’spotential conflict of interest here precludes it fromasserting the constitutional rights of others, see Elk

5 Interestingly, the state law at issue here only regulates abortionbetween 16-20 weeks, and the Respondent asserted in the lowercourt that they do not perform abortions after 16 weeks ofdevelopment. Pet. App. at 5a.

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Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 15(2004).

Indeed in Roe, this Court found that Plaintiff Roesatisfied standing as a woman whose condition ofpregnancy was “capable of repetition yet evadingreview,” 410 U.S. at 125, but held that Dr. Hallford, theabortionist asserting his right to perform abortions,lacked standing and was dismissed from the case, 410U.S. at 127. Abortion providers hold no constitutionalright of their own to execute abortions. And theycertainly are not exempt from health and safety lawswhen providing their services. See Casey, 505 U.S. at884.

In this case, the law at issue protects a woman’shealth from the dangers of a late term abortion. See,e.g., Pet. App. at 65-74a. Notwithstanding a life-savingpurpose, an abortion provider seeks to invalidate thislaw purporting to represent the same interests of thevery women protected by the law.

Cases like this one reveal real motives and exposepotential conflicts of interest. Abortion providersfinancially benefit every time they abort a woman’sunborn living child. If they genuinely represent theinterests of those for whom they supposedly speak, whydo they want to invalidate laws enacted to protect thesewomen? How are male abortion providers situated inthe same position as pregnant mothers facing anabortion decision? Simply put, they are not.

Regrettably, five members of this Court recentlyupheld the right of a third-party man to eliminateState-enacted health and safety regulations of a

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surgical procedure performed exclusively on pregnantmothers. It concluded so without any legal reasoning: “We have long permitted abortion providers to invokethe rights of their actual or potential patients inchallenges to abortion-related regulations.” June Med.Servs. L. L. C. v. Russo, No. 18-1323, 2020 WL3492640, at *9 (U.S. June 29, 2020). Permitting sucha practice to occur for a period of decades does notmake the practice just or any more in line withconventional requirements to satisfy standing. Id. at29-34 (Thomas, J., dissenting). Indeed individuals farmore greatly affected by the woman’s abortion decisionlack standing to bring legal challenges to it. Casey, 505U.S. 833 (recognizing women have the right to seek andobtain abortion without notifying their husbands); Doev. Smith, 486 U.S. 1308 (1988) (stating a father’sinterest in the abortion of his child did not provide himwith a legal basis to participate in the mother’sabortion decision of said child). Would not the father ofa pre-born child be substantially more affected byaccess to abortion both personally and financially than,for example, the male doctor who performed abortionson a part-time basis in June Medical?

Allowing abortion providers to bring these lawsuitsenables them to amend duly enacted legislation topromote their own interests, such as pecuniary gain,professional security, protection from medicalmalpractice, and retention of an undemanding andeasily satisfied standard of care. None of theseincentives, however, help or promote the interest of apregnant mother. Permitting people with this degreeof potential conflict to assert the constitutional rightsof a pregnant mother, pushed to the sidelines in these

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lawsuits, is unconscionable—especially given that theright asserted supposedly finds its basis in her personalautonomy. See, e.g., Warth, 422 U.S. at 500.

CONCLUSION

For the reasons provided in this brief, Amici Curiaeurge this Court to grant certiorari, revisit the Roeviability standard, and reverse the decision of the FifthCircuit.

Respectfully submitted,

WILLIAM WAGNER Counsel of RecordERIN ELIZABETH MERSINOGREAT LAKES JUSTICE CENTER5600 W. Mount Hope HwyLansing, MI 48917(517) 643-1765Prof.WWJD@gmail.org

Counsel for Amici Curiae