We read all the amicus briefs in Dobbs so you don’t have to
on Nov 30, 2021 at 5:24 pm
More than 140 amicus briefs were filed in Dobbs v. Jackson Women’s Health Organization, the potentially momentous abortion case concerning a Mississippi law banning abortion after 15 weeks of pregnancy. The briefs come from professors, politicians, states, and interest groups from across the ideological spectrum. We reviewed them all, identified some of the most noteworthy and novel arguments, and summarized them in the guide below.
The case will be argued on Wednesday. For background on the case and a summary of the parties’ arguments, check out Amy Howe’s preview for SCOTUSblog.
Amicus briefs supporting Mississippi
The viability framework
Numerous groups attack the viability standard that the court adopted in Roe v. Wade and Planned Parenthood v. Casey. In general, they argue that drawing the line at viability – the point at around 24 weeks of pregnancy when a fetus can survive outside the womb – is illogical or based on outdated scientific assumptions.
For instance, the National Right to Life Committee and the Louisiana Right to Life Federation argue that the court should reject the “categorical viability line” and replace it with a new “roadmap” under which courts would consider all state interests when analyzing the constitutionality of prohibitions on pre-viability elective abortions. The protection of a fetus, “including against pain,” should be considered a relevant state interest “at all stages of pregnancy,” the groups write.
The U.S. Conference of Catholic Bishops and other religious organizations argue that “there is no constitutional basis for the viability rule,” and the Center for Religious Expression argues that viability is a poor gauge of the state’s interest in protecting fetal life.
Two conservative medical associations – the American College of Pediatricians and the Association of American Physicians & Surgeons – say the viability rule was based on faulty and incomplete medical information about prenatal development. “As what we know about the unborn child’s rapid development has changed, so too must this Court’s jurisprudence change,” the groups say. Three physicians and the Catholic Association Foundation write that advances in science have “painted an intimate portrait of the fetus and its humanity” and therefore the court’s viability framework is outdated. Trinity Legal Center and Catholic Medical Association, National Association of Catholic Nurses-USA, Idaho Chooses Life and Texas Alliance for Life make similar arguments.
Against stare decisis
Many amici focus on the principle of stare decisis – and urge the court not to follow it in this case. They say Roe and Casey are not worthy of the deference that the court typically affords to its prior decisions.
Three Republican senators – Josh Hawley of Missouri, Mike Lee of Utah, and Ted Cruz of Texas – write that a precedent can be unworkable due to “a history of confusion in the lower courts, an unstable pattern of Supreme Court decisions, and a persistent lack of judicially manageable standards.” Casey, they argue, “does not represent long-settled doctrine, rests on a foundation of flawed judicial reasoning, and boasts no traditional reliance interests.” Further, its undue burden test, they argue, is unworkable and inconsistent.
Twenty-four states similarly criticize the court’s “erroneous and constantly changing abortion precedent.” Americans United for Life argues that “Roe and Casey contradict the stare decisis values of consistency, dependability, and predictability and are entitled to minimal stare decisis respect.” The Ethics and Public Policy Center makes a similar argument: Because the nation is so divided on abortion, the stare decisis factors cited in Casey do not apply. Three hundred twenty-one legislators from 35 states argue that all three prongs of the court’s stare decisis analysis weigh in favor of overturning Roe and Casey. State abortion restrictions, they say, should be subject only to rational-basis review.
Two hundred twenty-eight members of Congress say abortion policy should be determined in the democratically elected branches, not in the judiciary. “Mississippi’s case,” they write, “provides the Court a chance to release its vise grip on abortion politics.” They ask the court to side with the state to “affirm the constitutional authority of the federal and state governments to safeguard the lives and health of their citizens, born and not yet born.” The lawmakers argue that viability is an obsolete rule that “nullifies important state interests,” including maternal health, the integrity of the medical profession, and protecting fetuses from being aborted based on a prenatal diagnosis of Down syndrome.
Twelve governors write similarly that the court’s abortion precedent represents an “intrusion into the sovereign sphere of the States.” The Christian Legal Society and Robertson Center for Constitutional Law, Concerned Women for America, and Judicial Watch, Inc. make similar arguments, urging the court to overturn Roe and Casey on principles of state sovereignty and federalism.
Texas Right to Life describes Roe and Casey as “lawless and unconstitutional interventions into state abortion policy.” The brief was filed by Jonathan Mitchell, the anti-abortion lawyer who designed Texas’ six-week abortion banand argued before the court on Nov. 1 in support of that law.
The European Centre for Law and Justice points to the European Court of Human Rights, which has interpreted the European Convention of Human Rights to allow nation-states to create their own abortion access laws. The brief goes on to discuss abortion restrictions in various European countries.
Textualism and originalism
Professors Mary Ann Glendon and O. Carter Snead write that the court’s abortion precedent is “completely untethered” from the text, history, and tradition of the Constitution. “[N]either the framers of the Fourteenth Amendment, the States that ratified it, nor any member of the American public at that time with knowledge of its contents could have intended or understood that the Amendment precluded states from protecting unborn children or otherwise legally proscribing abortion,” Glendon and Snead write. “To the contrary, in the year it was ratified (1868), thirty of thirty-seven states explicitly criminalized abortion by statute.” Moreover, they write, “abortion was a longstanding common-law crime.”
The Thomas More Society argues that the right to reproductive freedom is not supported by history or legal tradition. It cites English common law in which abortion after “quickening” was considered a crime and 19th-century laws in American states that prohibited abortion. According to the group, the court wrongly concluded in Roe that the 19th-century statutes had been enacted to protect women from dangerous operations, rather than to protect fetuses. In one example, from 1881, “the New Jersey Supreme Court declared that its original 1849 abortion statute had been amended in 1872 ‘to protect the life of the child also, and inflict the same punishment, in case of its death, as if the mother should die.’”
Gender equality and women’s representation
A brief from the Susan B. Anthony List and 79 women serving as state legislators around the country highlights the increasing number of women who hold elective office in state governments. “Because of the substantial changes that even a minority of women bring to a legislative body, there is no longer a need — if there ever was — for this Court to assume that women cannot adequately protect their own interests through state political processes,” the brief argues. It notes that many state laws restricting abortion, including the Mississippi law, were sponsored by women. “Because women can now advance their own policy preferences in legislatures throughout the Nation, the Court can and should give greater deference to state legislators’ judgments about how to regulate abortion within their states’ borders.”
A brief from 240 women scholars and professionals and pro-life feminist organizations argues that Roe had no impact on women’s equality in society. “Even a cursory review of history reveals that the expansion of opportunities for women — as well as their increased participation in political, social, and economic spheres — predated Roe.”
The American Association of Pro-Life Obstetricians & Gynecologists argues that the Mississippi legislature was correct to conclude that abortions performed after 15 weeks pose “significant physical and psychological risks” to the patient. The Pennsylvania Pro-Life Federation also address physical risk, writing that “contrary to what some suggest, Roe was not a significant cause of reduced maternal mortality and morbidity from abortion.” The Prolife Center at the University of St. Thomas argues that the court should not allow for abortions sought due to a pregnant person’s mental or psychological health.
The Christian Medical & Dental Associations argue that performing abortions violates a physician’s duty to protect life and avoid doing harm. For that reason, the associations say, the Mississippi law serves the important purpose of upholding the ethics of the medical profession.
The Foundation to Abolish Abortion and other anti-abortion groups describe Roe as an “unconstitutional abuse of power” and urge the court not just to overturn that decision but also to hold that “a preborn human being, no matter how small, is a person under the Fourteenth Amendment” and is therefore entitled to equal protection. The March for Life Education and Defense Fund, originalism scholar Lee Strang, jurisprudence scholars John Finnis and Robert George, and the Billy Graham Evangelistic Association and other groups make similar arguments.
The Pacific Justice Institute suggests that abortion violates the 13th Amendment’s prohibition of slavery. “When aborting her fetus, a mother treats her child as slave property,” the institute contends.
Amicus briefs supporting Jackson Women’s Health Organization
Abortion as a cornerstone of reproductive health
Medical groups and other experts highlight the importance of abortion care to women’s health and emphasize that abortion is an overwhelmingly safe procedure.
The American College of Obstetricians and Gynecologists and other medical organizations assert that Mississippi’s justifications for the 15-week ban have no grounding in scientific evidence. They argue that, contrary to the state’s claims of protecting women, the ban would expose women to greater physical and psychological health risk. Under the ban, patients would travel outside the state to access abortions, increasing the risk of complications by delaying medical care; attempt self-induced abortion, likely by methods much more harmful than medically approved procedures; and some would be forced to carry the pregnancy to term. “Risk of death associated with childbirth is accordingly approximately 14 times higher than any risk of death from an abortion.”
The law, the organizations contend, also would place clinicians in an “untenable position of choosing between providing care consistent with their best medical judgment, scientific evidence, and the clinicians’ ethical obligations or risk losing their medical licenses.”
The International Federation of Gynecology and Obstetrics notes that evidence around the globe shows that restricting abortion care does not reduce abortions; instead, it increases health harms from unprofessional or otherwise unsafe abortions. The group emphasizes that if the court allows Mississippi’s law to go into place it would “put the United States at odds with the health and human rights recommendations of professional societies of obstetricians and gynecologists worldwide as well as major international health bodies.”
Social science experts point to studies that indicate that “being denied a wanted abortion can have a detrimental impact on women’s mental health.”
Liberty and equality under the 14th Amendment
Many of the clinic’s supporters focus on the 14th Amendment – not just its guarantee of substantive liberty and privacy, as interpreted by Roe and Casey, but also its guarantee of equal protection.
Seventy-three groups that advocate for gender equality, led by the National Women’s Law Center, argue that the right to abortion is essential to the rights of personal autonomy and bodily integrity guaranteed in the 14th Amendment. Overturning this right would “decimat[e] the ability of women and all who can become pregnant to pursue their personal and professional goals, to safeguard their economic security, and to stand as equal members of society.” The right to abortion remains critical to combating persisting economic gender disparities, the groups note, particularly in Mississippi where women make up 71.3% of low-wage workers.
Reproductive-justice organizations write that “reproductive autonomy lies at the heart of liberty” and point to existing inequities of abortion access that disproportionately harm people of color, LGBTQ people, disabled people, and low-income people.
The American Civil Liberties Union argues that, as explained in Casey, the right to an abortion is firmly rooted in the Constitution’s promise of “a realm of personal liberty which the government may not enter.” Additionally, the existence of a state interest in potential life “does not justify a refusal to even recognize the constitutional right” and the contentious nature of abortion does not itself “counsel in favor” of overturning current precedent.
National Advocates for Pregnant Women and other groups write that any decision discarding Roe and Casey “necessarily entails abandoning the foundational premises that secure the full and equal constitutional status of all pregnant women.”
The Constitutional Accountability Center looks at the text and history of the 14th Amendment, which was written to provide broad protection of substantive liberty, establish equal citizenship, and “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”
Three constitutional law scholars, Serena Mayeri, Melissa Murray, and Reva Siegel, argue that the Mississippi law violates the equal protection clause. They write that, under existing equal-protection precedent, laws that regulate pregnancy should be subject to heightened scrutiny because they are sex-based classifications. The scholars argue that the Mississippi law violates equal protection because it relies on outdated stereotypes about women’s roles as maternal figures in society. In addition, they argue, Mississippi ignored other, noncoercive options to advance its asserted interests in reducing abortions and protecting women’s health.
Impact on marginalized groups
Various groups write that the ban, if upheld, will disproportionately affect marginalized groups, particularly people of color and people with low incomes. Twelve reproductive justice law scholars indicate that Black women in Mississippi have greater need for abortion services than their white counterparts because they experience higher rates of poverty, partner violence, lack of insurance, and inadequate sexual and reproductive information. Scholars at Howard University examine the long history of state regulation of Black women’s reproductive liberty and the high rates of maternal mortality they suffer today. Eighteen civil rights organizations add that Black women and women with low incomes disproportionately rely on abortion access across the country, due to state policies limiting access to sex education, contraception, and health care. Birth equity organizations and studies from 153 economists underscore those points.
Asian American and Pacific Islander interest groups specify that AAPI women face significant barriers to obtaining abortion care due to language and economic barriers, as well as immigration-related challenges. Puerto Rican reproductive rights organizations point out that even under Roe and Casey, Puerto Rican women experience structural barriers to abortion access due to misinformation and poverty. LGBTQ organizations point to widespread discrimination in the health care system and higher rates of sexual violence that necessitate abortion rights in the community. YWCA USA, Girls Inc., Supermajority Education Fund, and United State of Women make similar points, emphasizing the harm on young women during pivotal years of personal development. Twenty-nine local city and county governments warn that the ban, if allowed to take effect, would exacerbate discrimination and deepen health disparities along racial and socioeconomic lines.
In favor of stare decisis
The American Bar Association and 236 members of Congress emphasis that this is not one of the rare occasions to depart from stare decisis and there are compelling reasons to apply the principle here, particularly because Americans have come to rely on access to abortion over the last 50 years to structure their lives. Respect for precedent is fundamental to maintaining the legitimacy of judicial and legislative institutions, the briefs say.
Organizations of women lawyers write that the Supreme Court decided to uphold Roe in Casey in part because the court recognized that ‘“[a]n entire generation has come of age’ relying on ‘Roe’s concept of liberty in defining the capacity of women to act in society.’” The reality that this statement now applies to “every woman of childbearing age in the United States,” weakens any justification for overturning abortion precedent.
Twenty-two states, the District of Columbia, and the North Carolina attorney general argue in support of the “straightforward and workable standard” of the viability rule. The Biden administration is also supporting the clinic, emphasizing that Roe and Casey recognize states’ interest in protecting potential life. This interest is reflected in the viability rule, which “‘struck a balance”’ between both sets of interests. Biden’s solicitor general, Elizabeth Prelogar, will argue alongside the clinic at oral argument on Wednesday.
Two groups that support abortion rights – Advocates for Youth and We Testify – provide first-hand accounts of people who have “relied on the availability of abortion protected under this Court’s prior precedents.”
Five hundred fourteen women athletes, the Women’s National Basketball Players Association, the National Women’s Soccer League Players Association, and Athletes for Impact write that without a constitutional right to abortion “women’s participation in athletics would suffer, including because some women athletes would not be able to compete at the same level — or at all — without access to abortion care and without the knowledge that the decision whether to continue or end a pregnancy remains theirs.” Athletes provide first-hand testimony.
International abortion law
International and comparative legal scholars contest Mississippi’s argument that overturning Roe and Casey would bring American abortion laws in line with abortion laws in other countries. The argument is an oversimplification, they say, because it looks only at time limits on access and not the broader context and application of those laws. While comparable countries set shorter time limits on access than 24 weeks, they “often provide greater flexibility in obtaining abortions after those limits pass, with exceptions for a broad range of circumstances,” the scholars write. Further, over 50 countries have moved to liberalize abortion access over the past 25 years, with a number explicitly recognizing reproductive rights as protected under international human rights law.
The Society for Maternal-Fetal Medicine and other groups write that world leaders in science and medicine agree that it is impossible for a fetus to experience pain before 24 weeks of pregnancy because cortical and spinal cord structures have not developed at that stage of gestation. They reject arguments from Mississippi’s supporters that preventing fetal pain is a valid rationale for the 15-week abortion ban.
A group of abortion funds and practical support organizations emphasize the logistical reality of a 15-week ban. They point to barriers that may prevent or delay some people, particularly people with low incomes and people of color, from getting an abortion before 15 weeks of pregnancy.
Fourteen groups write on the Mississippi law’s impact on survivors of intimate partner violence, which affects nearly one in three women in the United States. Referring directly to the text of the law, the groups write, “The suggestion that access to abortion is no longer necessary because ‘on a wide scale women [now] attain both professional success and a rich family life,’ and contraceptives are readily available to anyone who wants them is, at best, grossly ignorant of the reality on the ground for pregnant people — even more so for survivors of IPV.” In Casey, the court recognized that restrictions on abortion have a significant chilling effect for domestic violence survivors. Further, the groups point to research that shows that having a child with an abuser will likely result in continued violence while having an abortion is linked to a reduction of physical violence over time.
Separation of church and state
The Freedom From Religion Foundation, Center for Inquiry, and American Atheists argue that getting rid of the viability framework would “enshrine into civil law a religious belief about when personhood begins.” Briefs from Americans United for Separation of Church and State and various religious organizations make similar arguments.
Various law professors with a background in court procedure suggest that the case should be dismissed as improvidently granted, because Mississippi’s argument in its cert petition did not include its principal argument on the merits (that Roe and Casey should be overturned).
Amicus briefs supporting neither side
Origin of human life
A group of biologists from universities in 15 countries write to emphasize widespread support of “the leading biological view” that life begins at fertilization. The group “takes no position on the morality, legality, or constitutionality of abortion access,” and “no position on whether a single-celled human zygote is a person within the meaning of the U.S. Constitution, or if a human zygote, embryo, or fetus deserves legal protections or constitutional rights.”
Abortion law in Europe
European legal scholars write that the European Court of Human Rights allows nation-states a “wide margin of appreciation to determine the starting point of the right to life in their domestic law and to formulate their laws on abortion.” The scholars note that the European Convention on Human Rights does not confer a right to abortion and that “even very restrictive abortion laws” are compatible with states’ obligations under the convention. The European court has not determined whether a fetus is a person and has no viability standard.
Angie Gou and James Romoser contributed to this article.