No.

19-1392

In the Supreme Court of the United States

THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ALABAMA,

ALASKA, ARIZONA, ARKANSAS, FLORIDA,
GEORGIA, IDAHO, INDIANA, KANSAS, KENTUCKY,
LOUISIANA, MISSOURI, MONTANA, NEBRASKA,
NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH
CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,
WEST VIRGINIA, AND WYOMING AS AMICI CURIAE
IN SUPPORT OF PETITIONERS

KEN PAXTON JUDD E. STONE II

Attorney General of Texas Solicitor General
Counsel of Record
BRENT WEBSTER
First Assistant Attorney KYLE D. HIGHFUL
General BETH KLUSMANN
Assistant Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[email protected]
(512) 936-1700
TA BLE O F C O NTE N TS
Page
Table of authorities ....................................................... II
Interest of amici curiae ................................................. 1
Introduction and summary of argument...................... 2
Argument........................................................................ 3
I. The Court’s erroneous and constantly changing
abortion precedent does not warrant stare
decisis deference. ............................................... 3
A. Roe and Casey created and preserved a
nonexistent constitutional right. ................. 4
1. The Constitution does not include a
right to elective abortion. ....................... 5
2. There is no right to elective abortion in
the Nation’s history and tradition. ........ 7
B. The Court continues to change the
constitutional test. .......................................10
1. Roe created the trimester test. .............10
2. Casey rejected the trimester test in
favor of the undue-burden test. ............11
3. Whole Woman’s Health may have
introduced a benefits/burdens balancing
test. .........................................................13
4. June Medical may have returned to the
undue-burden test. .................................15
C. The Court’s abortion precedent is
unreliable and unworkable..........................16
II. The Court frequently alters other doctrines in
abortion cases. ...................................................18
A. The Court has created multiple abortion-
specific rules and exceptions. .....................19

(I)
II
1. The large-fraction test lowers the
burden of proving facial
unconstitutionality in abortion cases. ...19
2. The Court has disregarded the doctrines
of severability and res judicata in
abortion cases. ........................................21
3. The Court has allowed abortion
providers to exercise third-party
standing despite conflicts of interest. ..23
4. The Court’s abortion exceptionalism has
muddled its First Amendment
jurisprudence. ........................................25
5. The Court has declined to give
discretion to legislatures crafting
abortion laws amid medical
uncertainty. ............................................27
B. The Court’s abortion-specific jurisprudence
should be corrected by overruling Roe and
Casey. ...........................................................30
III. It is time to revisit and overturn Roe and
Casey. .................................................................31
Conclusion .....................................................................33

TA BLE O F AU T HO R I TIE S

Page(s)
Cases:
Agostini v. Felton,
521 U.S. 203 (1997) ....................................................... 31
Andino v. Middleton,
141 S. Ct. 9 (2020) ......................................................... 28
III
Cases—Continued: Page(s)
Ayotte v. Planned Parenthood of N. New
England,
546 U.S. 320 (2006) ....................................................... 21
Barr v. Am. Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335 (2020) ................................................... 21
Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019) ................................................... 32
Bruni v. City of Pittsburgh,
141 S. Ct. 578 (2021) ..................................................... 27
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) ......................................................... 6
Citizens United v. F.E.C.,
558 U.S. 310 (2010) ....................................................... 10
City of Los Angeles v. Patel,
576 U.S. 409 (2015) ....................................................... 19
Collins v. State of Tex.,
223 U.S. 288 (1912) ....................................................... 28
Conn v. Gabbert,
526 U.S. 286 (1999) ....................................................... 23
Doe v. Bolton,
410 U.S. 179 (1973) ............................................... 4, 9, 17
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ........................................................... 24
EMW Women’s Surgical Ctr., P.S.C. v.
Friedlander,
978 F.3d 418 (6th Cir. 2020) .................................... 4, 16
In re Gee,
941 F.3d 153 (5th Cir. 2019) ........................................ 14
Gonzales v. Carhart,
550 U.S. 124 (2007) ......................... 1, 6, 7, 13, 14, 28, 29
IV
Cases—Continued: Page(s)
Harris v. McRae,
448 U.S. 297 (1980) ......................................................... 6
Hill v. Colorado,
530 U.S. 703 (2000) ........................................... 25, 26, 27
Hodgson v. Minnesota,
497 U.S. 417 (1990) ....................................................... 12
Hopkins v. Jegley,
968 F.3d 912 (8th Cir. 2020) ........................................ 16
Jackson Women’s Health Org. v. Dobbs,
945 F.3d 265 (5th Cir. 2019),
cert. granted in part, No. 19-1392,
2021 WL 1951792 (U.S. May 17, 2021) ....................... 32
Janus v. State, Cnty. & Mun. Emps.,
138 S. Ct. 2448 (2018) ......................................... 9, 16, 18
Jones v. Mississippi,
141 S. Ct. 1307 (2021) ................................................... 30
Jones v. United States,
463 U.S. 354 (1983) ....................................................... 27
June Med. Servs. LLC v. Gee,
905 F.3d 787 (5th Cir. 2018) ........................................ 15
June Med. Servs. LLC v. Russo,
140 S. Ct. 2103 (2020) .......................................... passim
Kansas v. Hendricks,
521 U.S. 346 (1997) ....................................................... 28
Kowalski v. Tesmer,
543 U.S. 125 (2004) ....................................................... 24
Loving v. Virginia,
388 U.S. 1 (1967) ............................................................. 6
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ......................................................... 3
V
Cases—Continued: Page(s)
Marks v. United States,
430 U.S. 188 (1977) ................................................. 12, 16
Marshall v. United States,
414 U.S. 417 (1974) ....................................................... 27
Mazurek v. Armstrong,
520 U.S. 968 (1997) ....................................................... 14
Montana v. United States,
440 U.S. 147 (1979) ....................................................... 22
Montejo v. Louisiana,
556 U.S. 778 (2009) ....................................................... 31
Payne v. Tennessee,
501 U.S. 808 (1991) ................................................... 4, 13
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) ......................................................... 6
Planned Parenthood of Greater Tex. Surgical
Health Servs. v. Abbott,
748 F.3d 583 (5th Cir. 2014) ........................................ 22
Planned Parenthood of Ind. & Ky., Inc. v. Box,
949 F.3d 997 (7th Cir. 2019) ........................................ 17
Planned Parenthood of Ind. & Ky., Inc. v. Box,
991 F.3d 740 (7th Cir. 2021) .................................. 16, 17
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) .............................................. passim
Poe v. Ullman,
367 U.S. 497 (1961) ......................................................... 6
Price v. City of Chicago,
915 F.3d 1107 (7th Cir. 2019), cert. denied,
141 S. Ct. 185 (2020) ..................................................... 27
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ................................................. 26, 27
VI
Cases—Continued: Page(s)
Reprod. Health Servs. v. Strange,
No. 17-13561, 2021 WL 2678574
(11th Cir. June 30, 2021) .......................................... 4, 16
Rochin v. California,
342 U.S. 165 (1952) ......................................................... 6
Roe v. Wade,
410 U.S. 113 (1973) .............................................. passim
S. Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) ................................................... 28
Stenberg v. Carhart,
530 U.S. 914 (2000) ........................................... 13, 14, 17
Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists,
476 U.S. 747 (1986) ................................................. 18, 30
United States v. Salerno,
481 U.S. 739 (1987) ................................................. 19, 20
Virginia v. Black,
538 U.S. 343 (2003) ....................................................... 25
Warth v. Seldin,
422 U.S. 490 (1975) ....................................................... 23
Washington v. Glucksberg,
521 U.S. 702 (1997) ..................................................... 7, 9
Webster v. Reprod. Health Servs.,
492 U.S. 490 (1989) ....................................................... 12
W. Ala. Women’s Ctr. v. Williamson,
900 F.3d 1310 (11th Cir. 2018),
cert. denied, 139 S. Ct. 2606 (2019) ....................... 32, 33
Whole Woman’s Health All. v. Hill,
493 F. Supp. 3d 694 (S.D. Ind. 2020) .......................... 14
VII
Cases—Continued: Page(s)
Whole Woman’s Health v. Cole,
790 F.3d 563 (5th Cir. 2015) ........................................ 13
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) .......................................... passim

Constitutional Provisions and Statutes:

U.S. Const.:
amend. I......................................... 3, 5, 19, 21, 25, 26, 27
amend. IV ........................................................................ 5
amend. V.......................................................................... 5
amend. IX ........................................................................ 5
amend. XIV ..................................................................... 5
art. VI, cl. 2.................................................................... 10
Ala. Code § 26-23H-4 ......................................................... 32
Ariz. Rev. Stat. § 36-2159(B) ............................................. 32
Ark. Code § 20-16-1304(a) ................................................. 32
Ga. Code § 16-12-141(b) ..................................................... 32
Idaho Code § 18-8704 ......................................................... 32
Ind. Code § 16-34-2-1(a)(3) ................................................ 32
Iowa Code § 146C.2 ............................................................ 32
Kan. Stat.:
§ 65-6723(f) .................................................................... 32
§ 6724(a) ........................................................................ 32
Ky. Rev. Stat. § 311.7706(1) .............................................. 32
La. Stat. § 40:1061.1(E) ..................................................... 32
Miss. Code § 41-41-137 ...................................................... 32
Mo. Rev. Stat. § 188.058(1) ................................................ 32
Neb. Rev. Stat. § 28-3,106 ................................................. 32
N.C. Gen. Stat. § 14-45.1(a) ............................................... 32
VIII
Statutes—Continued: Page(s)
N.D. Cent. Code § 14-02.1-05.3(3) .................................... 32
Ohio Rev. Code § 2919.195(A) ........................................... 32
Okla. Stat. tit. 63, § 1-745.5(A) .......................................... 32
S.C. Code § 44-41-680 ........................................................ 32
S.D. Codified Laws § 34-23A-70 ....................................... 32
Tenn. Code § 39-15-216 ...................................................... 32
Tex. Health & Safety Code § 171.203 .............................. 32
Utah Code § 76-7-302.5 ...................................................... 32
W. Va. Code:
§ 4(a) .............................................................................. 32
§ 16-2M-2(7) .................................................................. 32

Miscellaneous:
1 W. Blackstone, Commentaries on the Laws of
England (1765).............................................................. 10
18 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 4403 (2d ed. 2002) ............ 22
Hopkins v. Jegley,
No. 17-2879 (8th Cir.) ................................................... 16
Jamin B. Raskin & Clark L. LeBlanc,
Disfavored Speech About Favored Rights:
Hill v. Colorado, the Vanishing Public
Forum and the Need for an Objective
Speech Discrimination Test,
51 Am. U.L. Rev. 179 (2001) ........................................ 26
IX
Miscellaneous—Continued: Page(s)
Kaytlin L. Roholt, Give Me Your Tired, Your
Poor, Your Pregnant: The Jurisprudence
of Abortion Exceptionalism in Garza v.
Hargan,
5 Tex. A&M L. Rev. 505 (2018) ................................... 24
Mary Ziegler, The Jurisprudence of
Uncertainty: Knowledge, Science, and
Abortion,
2018 Wis. L. Rev. 317 (2018) ....................................... 30
Restatement (Second) of Judgments
§ 25, cmt. b .................................................................... 22
Reva Siegel, Reasoning from the Body: A
Historical Perspective on Abortion
Regulation and Questions of Equal
Protection,
44 Stan. L. Rev. 261 (1992) ............................................ 7
Skye Gabel, Casey “Versus” Salerno:
Determining an Appropriate Standard for
Evaluating the Facial Constitutionality of
Abortion Statutes,
19 Cardozo L. Rev. 1825 (1998) .................................. 20
Tulsa Women’s Reprod. Clinic, LLC v.
Hunter,
No. 118,292 (Okla.) .................................................. 16-17
Whole Woman’s Health v. Paxton,
No. 17-51060 (5th Cir.) ................................................. 16
Whole Woman’s Health v. Young,
No. 18-50730 (5th Cir.) ................................................. 16
INTE RE ST O F A MIC I C U RI AE
Amici curiae are the States of Texas, Alabama,
Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, In-
diana, Kansas, Kentucky, Louisiana, Missouri, Montana,
Nebraska, North Dakota, Ohio, Oklahoma, South Caro-
lina, South Dakota, Tennessee, Utah, West Virginia, and
Wyoming. 1
This Court has assured the States that they may
“promote respect for life, including life of the unborn.”
Gonzales v. Carhart, 550 U.S. 124, 158 (2007). Like Mis-
sissippi, Amici States do so by restricting abortions that
“implicate[] additional ethical and moral concerns that
justify a special prohibition,” id., such as, in Mississippi’s
case, an abortion which would inflict excruciating pain on
a sentient child. Dogmatic abortion maximalists, unsatis-
fied by any legal regime short of nationwide abortion on
demand, challenge these restrictions reflexively.
And with some reason: This Court invites implacable
challengers through a jurisprudence filled with abortion-
specific exceptions to traditional legal doctrines. These
ever-multiplying exceptions, from standing at the begin-
ning of a case to res judicata following its conclusion, en-
able unprincipled legal innovations by abortion advo-
cates and destabilize generally applicable doctrines for
everyone else. As a result, Amici States have little on
which they can rely when defending their abortion laws
in court. Indeed, when it comes to abortion, the only con-
stant is change—to the constitutional test and estab-
lished rules that might otherwise hinder a plaintiff’s suit.

1
No counsel for any party authored this brief, in whole or in
part. No person or entity other than amici contributed monetarily
to its preparation or submission. All parties have consented to its
filing.

(1)
2

This challenge to Mississippi’s 15-week law presents

the Court with an opportunity to remedy those problems
by reconsidering and overruling their source—Roe v.
Wade and Planned Parenthood of Southeastern Penn-
sylvania v. Casey. Unlawful from the day each was de-
cided, both have kept Amici States in continual litigation
as the Court changes the constitutional test and rules.
The time has come to return the question of abortion to
where it belongs—with the States.
INT RO D U C T IO N AN D
SU M MA RY O F AR GU ME NT
I. This Court has propounded a constitutional law of
abortion for half a century, and no one can describe it
with any certainty. Because the purported right to abor-
tion lacks any textual or historical foundation, it is de-
fined only by the Court’s constantly changing opinions.
From the trimester test to the undue-burden test to (pos-
sibly) a benefits/burdens balancing test and (possibly)
back to the undue-burden test, courts and States are con-
stantly kept off-guard trying to predict this Court’s next
addition to this canon.
Abortion advocates argue that stare decisis demands
fidelity to the Court’s prior decisions in order to foster
stability, reliance, and integrity. But this Court’s abor-
tion jurisprudence is neither stable nor predictable, and
its foundational decisions are patently wrong. Stare de-
cisis is not served by hewing to decisions which support
none of the values underlying that prudential doctrine.
II. The Court’s erroneous abortion jurisprudence
has spread throughout unrelated legal doctrines through
multiple abortion-specific exceptions to traditional legal
doctrines. When it comes to abortion litigation, the Court
has effectively eliminated the standard for facial
challenges, ignored principles of severability and res
3

judicata, permitted abortion providers to challenge

health-and-safety laws on behalf of their patients, and
even limited the First Amendment rights of those who
oppose abortion—just to name a few. This “ad hoc
nullification machine,” Madsen v. Women’s Health Ctr.,
Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in the
judgment in part and dissenting in part), undermines the
Court’s integrity and further supports overruling the
precedent that has brought us to this point.
III. The Court should follow the urging of those
Justices that, since Roe was decided, have argued that
the Court has no place in this area. The Court’s efforts
to bring stability and finality to the question of abortion
have proven fruitless at best and counterproductive at
worst. The Court should overrule Roe and Casey.
ARGU ME N T
I. The Court’s Erroneous and Constantly Changing
Abortion Precedent Does Not Warrant Stare
Decisis Deference.
Because the Court’s abortion jurisprudence lacks any
constitutional or historical foundation, it has never been
stable. To wit: The Court created the right to abortion
and the trimester system in Roe v. Wade, 410 U.S. 113,
164-65 (1973). But in Planned Parenthood of Southeast-
ern Pennsylvania v. Casey, it jettisoned the trimester
system in favor of an undue-burden test that looks for a
“substantial obstacle” to abortion, 505 U.S. 833, 878-79
(1992) (plurality op.), overruling a few of its prior deci-
sions in the process, id. at 881-83. Then, in Whole
Woman’s Health v. Hellerstedt, the Court may—or may
not—have changed the undue-burden analysis into a
benefits/burdens balancing test. 136 S. Ct. 2292, 2309
(2016). But it may—or may not—have changed it back in
June Medical Services LLC v. Russo, 140 S. Ct. 2103,
4

2138-39 (2020) (Roberts, C.J., concurring in the judg-

ment). The courts of appeals are split on that question.
See, e.g., Reprod. Health Servs. v. Strange, No. 17-13561,
2021 WL 2678574, at *12 n.6 (11th Cir. June 30, 2021)
(per curiam); EMW Women’s Surgical Ctr., P.S.C. v.
Friedlander, 978 F.3d 418, 437 (6th Cir. 2020).
Nothing about this warrants any sort of stare decisis
deference. Stare decisis, a prudential doctrine, is useful
when it “promotes the evenhanded, predictable, and con-
sistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v.
Tennessee, 501 U.S. 808, 827 (1991). No objective ob-
server of the Court’s abortion precedent could conclude
that it is “evenhanded, predictable, or consistent.” The
continually shifting tests and rules make this area of law
unworkable, leaving courts confused and States aiming
at a constantly moving target when defending their laws.
The Court should feel no obligation to continue to pre-
serve this anti-constitutional “right.”
A. Roe and Casey created and preserved a
nonexistent constitutional right.
Justices of this Court have explained why Roe was
lawless since the day it was decided. See, e.g., June Med.,
140 S. Ct. at 2149-53 (Thomas, J., dissenting); Casey, 505
U.S. at 979-1002 (Scalia, J., concurring in the judgment
in part and dissenting in part); Doe v. Bolton, 410 U.S.
179, 221-23 (1973) (White, J., dissenting); Roe, 410 U.S.
at 172-78 (Rehnquist, J., dissenting). Roe’s failing is
straightforward: The Constitution does not include a
right to abortion, and there is no history or tradition of
protecting such a right.
5

1. The Constitution does not include a right

to elective abortion.
a. Abortion is a “right” in search of a constitutional
home. It is found nowhere in the text of the Constitution,
and the majority in Roe did not claim otherwise. Instead,
the Roe Court determined that abortion fell within the
right to privacy, which it admitted was not “explicitly
mention[ed]” in the Constitution. 410 U.S. at 152-53.
Thus, the Court drew from multiple amendments (the
First, Fourth, Fifth, Ninth, and Fourteenth), as well as
the “penumbras” of the Bill of Rights, as potential
sources. Id. at 152. The Court appeared to narrow it
down to two possibilities—the Ninth Amendment (as the
district court concluded) and the Fourteenth Amend-
ment (as the Court “fe[lt]” it was)—but held it was a pro-
tected right regardless of where in the Constitution it
was located. Id. at 153.
Simply reading the relevant amendments reveals
that none of them explicitly includes anything resem-
bling the right to abortion. And the “penumbras,” of
course, contain nothing explicit at all. Nevertheless, the
Roe Court concluded, based on little more than its own
ipse dixit, that the right to privacy encompassed a con-
stitutional right to abortion. Id.
b. Reconsidering the constitutional source for the
right to abortion nearly twenty years later, the Court in
Casey determined it was a liberty interest protected by
the Due Process Clause of the Fourteenth Amendment.
505 U.S. at 846. The Court explained that the liberties
protected by the substantive component of the Due Pro-
cess Clause are not limited to those identified in the Bill
of Rights or even those that were protected at the time
the Fourteenth Amendment was ratified. Id. at 847. In-
stead, to the Court in Casey, whether an act is a
6

constitutionally protected liberty interest is subject only

to this Court’s “reasoned judgment.” Id. at 849; see also
id. at 850 (stating that there is “[n]o formula” other than
“judgment and restraint” (quoting Poe v. Ullman, 367
U.S. 497, 542 (1961) (Harlan, J., dissenting))).
Attempting to ground its “reasoned judgment” in
prior precedent, the Court analogized abortion to mar-
riage, contraception, school choice, and freedom from
forced medical procedures. Id. at 849 (citing, inter alia,
Carey v. Population Servs. Int’l, 431 U.S. 678 (1977);
Loving v. Virginia, 388 U.S. 1 (1967); Pierce v. Soc’y of
Sisters, 268 U.S. 510 (1925); Rochin v. California, 342
U.S. 165 (1952)). But none of those rights involve ending
the life of an unborn child. See Gonzales, 550 U.S. at 147
(noting that “by common understanding and scientific
terminology, a fetus is a living organism while within the
womb, whether or not it is viable outside the womb”).
And as the Court later recognized, “[a]bortion is inher-
ently different from other medical procedures, because
no other procedure involves the purposeful termination
of a potential life.” Harris v. McRae, 448 U.S. 297, 325
(1980).
The Court supplemented its review of precedent with
vague statements about the “heart of liberty,”
“defin[ing] one’s own concept of existence,” “the mystery
of human life,” and a woman’s “conception of her spir-
itual imperatives and her place in society.” Casey, 505
U.S. at 852-53. None of these elevated sentiments are
found in the text of the Constitution and instead demon-
strate that the right to abortion exists only because the
Court decided it should.
c. Dissatisfied with the due-process analysis, other
Justices began to look to the Equal Protection Clause.
Justice Blackmun suggested that denying a woman the
right to abort her unborn child “appears to rest upon a
7

conception of women’s role that has triggered the pro-

tection of the Equal Protection Clause.” Id. at 928
(Blackmun, J., concurring in part, concurring in the
judgment in part, and dissenting in part). Another four
Justices have argued that the right to abortion is not, in
fact, about the right to privacy, but rather the right of a
woman to “enjoy equal citizenship stature.” Gonzales,
550 U.S. at 172 (Ginsburg, J., dissenting) (citing Reva
Siegel, Reasoning from the Body: A Historical Perspec-
tive on Abortion Regulation and Questions of Equal
Protection, 44 Stan. L. Rev. 261 (1992)).
Half a century on—and leaving no clause unex-
amined—the Court has been unable to locate the right to
abortion in the Constitution. That is because it is not
there.
2. There is no right to elective abortion in the
Nation’s history and tradition.
As noted above, Casey determined that the right to
abortion was part of substantive due process. 505 U.S. at
846. But the Court did not even attempt to apply the
proper test for substantive-due-process rights: (1) the
right must be “objectively[] ‘deeply rooted in this Na-
tion’s history and tradition’” and “implicit in the concept
of ordered liberty,” such that “neither liberty nor justice
would exist if [it was] sacrificed”; and (2) there must be a
“‘careful description’ of the asserted fundamental liberty
interest.” Washington v. Glucksberg, 521 U.S. 702, 720-
21 (1997). Elective abortion is not deeply rooted in the
history and tradition of our Nation and is not part of sub-
stantive due process.
a. Beginning with the second element first, the
“careful description” of the right at issue is a right to
elective abortion. Casey identified no such right—rely-
ing instead on other rights (marriage, contraception,
8

bodily integrity), 505 U.S. at 849, and high-minded, phil-

osophical statements about the human condition and
childbearing, id. at 852-53. At no point did the Court in
Casey look for the specific right to elective abortion
within America’s history and tradition. Had it done so, it
would have come up empty, as did the Court in Roe.
b. Addressing the right to abortion in the first in-
stance, the majority in Roe reviewed the history of abor-
tion. 410 U.S. at 130-47. But rather than establish a pre-
existing right to abortion protected by the States, Roe’s
historical discussion demonstrated that most States
criminalized elective abortion.
As detailed in Roe, until the early to mid-1800s, many
States followed English common law regarding abortion,
which criminalized abortion after the quickening, when
the unborn child’s movements could be felt (at about 16-
18 weeks’ pregnancy). Id. at 132-36, 138. But in 1828,
New York enacted legislation that became a “model” for
other States. Id. at 138. Under that law, all abortion was
criminalized unless necessary to preserve the life of the
mother, although post-quickening abortion was penal-
ized more severely. Id. In 1857, the American Medical
Association’s Committee on Criminal Abortion urged an
end to abortion generally, explaining that support for
abortion was based on a “wide-spread popular ignorance
. . . that the foetus is not alive till after the period of
quickening.” Id. at 141.
The quickening distinction was abandoned by the late
1800s, and by the late 1950s, a “large majority of the ju-
risdictions banned abortion, however and whenever per-
formed, unless done to save or preserve the life of the
mother.” Id. at 139. The Roe Court spoke of a recent
“trend toward liberalization” of abortion statutes by one-
third of States based on the ALI Model Penal Code, but
that model law still criminalized all abortions absent a
9

substantial risk to the mother’s health, a grave defect in

the child, or a pregnancy resulting from rape or incest.
Id. at 140; see also Doe, 410 U.S. at 205. The only signif-
icant movement towards elective abortion noted in Roe
was in the three years prior, when the American Medical
Association, the American Public Health Association,
and the American Bar Association announced their sup-
port for elective abortion. Roe, 410 U.S. at 143-46.
Thus, the history of abortion since the Founding is
not one of a “deeply rooted” right, “implicit in the con-
cept of ordered liberty.” See Glucksberg, 521 U.S. at 720.
As then-Justice Rehnquist put it,
The fact that a majority of the States reflecting,
after all the majority sentiment in those States,
have had restrictions on abortions for at least a
century is a strong indication . . . that the asserted
right to an abortion is not “so rooted in the tradi-
tions and conscience of our people as to be ranked
as fundamental.”
Roe, 410 U.S. at 174 (Rehnquist, J., dissenting). Elective
abortion is not deeply rooted in this Nation’s history and
tradition and is not protected by substantive due pro-
cess.
***
The case against abortion as a constitutional right is
not difficult to make. It is simply not present in the Con-
stitution or protected throughout the Nation’s history.
Those who seek to justify the continued preservation of
the right have the greater hurdle—and one that must ul-
timately prove insurmountable.
Stare decisis cannot save clearly erroneous constitu-
tional decisions as these, which have proven wholly un-
workable. See Janus v. State, Cnty. & Mun. Emps., 138
S. Ct. 2448, 2478 (2018). The Constitution is the
10

“supreme Law of the Land,” U.S. Const. art. VI, cl. 2, not
the judge-made rule of stare decisis. If Roe and Casey
are wrong (and they are), the Court is obligated to over-
turn them, especially where, as here, “fidelity” to those
precedents “does more to damage” the rule-of-law ideals
than to advance them. Citizens United v. F.E.C., 558
U.S. 310, 378 (2010) (Roberts, C.J., concurring). This
Court must adhere to the Constitution, not to itself.
B. The Court continues to change the
constitutional test.
Because the right to abortion arises from only this
Court’s say-so, States and courts are left with only this
Court’s opinions for guidance. Yet the Court keeps
changing the constitutional test for abortion regulations
to say whatever a majority (or plurality) of the Court de-
cides at that time. Stare decisis is supposed to “keep the
scale of justice even and steady, and not liable to waver
with every new judge’s opinion.” 1 W. Blackstone, Com-
mentaries on the Laws of England 69 (1765). It should
have no application when the Court repeatedly wavers
by creating various new constitutional tests to govern a
nonexistent constitutional right.
1. Roe created the trimester test.
After deciding to recognize a right to abortion, the
majority in Roe also created a rigid trimester test to de-
termine whether abortion regulations were constitu-
tional. During the first trimester, all abortion regulations
were, essentially, off-limits to the States. 410 U.S. at 163.
During the second trimester, the States’ compelling in-
terest in maternal health permitted them to regulate
abortion for the “preservation and protection of mater-
nal health.” Id. And in the third trimester, the States’
compelling interest in unborn life permitted them to
11

prohibit abortion other than when necessary to preserve

the life or health of the mother. Id. at 163-64.
The trimester system did not have its source in any
existing law but resembled “judicial legislation.” Id. at
174 (Rehnquist, J., dissenting). As the Court explained,
it merely balanced a variety of non-legal factors: “This
holding, we feel, is consistent with the relative weights of
the respective interests involved, with the lessons and
examples of medical and legal history, with the lenity of
the common law, and with the demands of the profound
problems of the present day.” Id. at 165 (majority op.).
The Court drew the first trimester line based on its un-
derstanding of the current safety of abortion and the sec-
ond trimester line based on its belief that it was “logical”
and “biological” to prohibit abortion once the unborn
child could live outside the womb. Id. at 163-64.
Then-Justice Rehnquist dissented, predicting that
“the Court’s opinion will accomplish the seemingly im-
possible feat of leaving this area of the law more confused
than it found it.” Id. at 173 (Rehnquist, J., dissenting).
He was proven correct.
2. Casey rejected the trimester test in favor of
the undue-burden test.
Less than twenty years later, the Court abandoned
the trimester test. Casey, 505 U.S. at 873 (plurality op.).
Now-Chief Justice Rehnquist summarized the “confused
state of th[e] Court’s abortion jurisprudence” leading up
to Casey, noting shifting and inconsistent rulings with
respect to parental notice and consent, the rights of the
father, informed-consent laws, facility regulations, and
protecting the lives of viable unborn children. Id. at 944,
946-50 (Rehnquist, C.J., concurring in the judgment in
part and dissenting in part). And to top it off, the Court’s
most recent abortion decisions had not resulted in
12

majority opinions, leaving lower courts struggling to ap-

ply Marks v. United States, 430 U.S. 188, 193 (1977), to
figure out what the constitutional test was. Casey, 505
U.S. at 950-51 (Rehnquist, C.J., concurring in the judg-
ment in part and dissenting in part) (describing Webster
v. Reprod. Health Servs., 492 U.S. 490 (1989) and Hodg-
son v. Minnesota, 497 U.S. 417 (1990)).
Casey’s new constitutional test did not result in a ma-
jority opinion, either, with only three Justices joining
that portion of the opinion. Id. at 869-79 (plurality op.).
The flaw in Roe, as the plurality explained, was that it
contained a contradiction from the very beginning: it rec-
ognized the State’s important and legitimate interest in
unborn life but created a trimester system that forbid
States from giving any effect to that interest prior to vi-
ability. Id. at 875-76 (citing Roe, 410 U.S. at 162).
The plurality, therefore, rejected the trimester
framework and adopted a new undue-burden test for all
previability abortion regulations. Id. at 878-79. An abor-
tion regulation creates an unconstitutional undue burden
“if its purpose or effect is to place a substantial obstacle
in the path of a woman seeking an abortion before the
fetus attains viability.” Id. at 878. As with the trimester
test, this new constitutional test does not come from the
Constitution or history. Instead, it was drawn from vari-
ous concurring and dissenting opinions of members of
the Court. Id. at 874.
Four Justices, dissenting in part, criticized the new
undue-burden standard, finding it “inherently manipula-
ble” and likely to prove “hopelessly unworkable in prac-
tice.” Id. at 985-86 (Scalia, J., concurring in the judgment
in part and dissenting in part). They believed it would
“conceal raw judicial policy choices concerning what is
‘appropriate’ abortion legislation.” Id. at 987.
13

The twin Carhart cases show the prescience of that

prediction. Applying Casey’s new standard, the Court
found unconstitutional the partial-birth abortion law in
Stenberg v. Carhart, in part because it lacked a maternal-
health exception. 530 U.S. 914, 937-38 (2000). But just
seven years later, it found the partial-birth abortion law
in Gonzales constitutional, even though it also lacked a
maternal-health exception. 550 U.S. at 166-67. Thus, con-
sistency in the Court’s decisions was still lacking. Casey’s
new test thus utterly failed to “promote[] the even-
handed, predictable, and consistent development of legal
principles.” Payne, 501 U.S. at 827.
3. Whole Woman’s Health may have
introduced a benefits/burdens balancing
test.
In 2015, the Fifth Circuit considered the constitution-
ality of two Texas laws regarding health-and-safety
standards for abortion providers and facilities. Whole
Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015)
(per curiam). Relying on Casey and subsequent prece-
dent, the Fifth Circuit held that “a law regulating previ-
ability abortion is constitutional if: (1) it does not have
the purpose or effect of placing a substantial obstacle in
the path of a woman seeking an abortion of a nonviable
fetus; and (2) it is reasonably related to (or designed to
further) a legitimate state interest.” Id. at 572; see also
Casey, 505 U.S. at 877 (plurality op.) (stating that a law
is unconstitutional if “while furthering the interest in po-
tential life or some other valid state interest, [it] has the
effect of placing a substantial obstacle in the path of a
woman’s choice”).
Even though the Fifth Circuit drew its test nearly
word-for-word from Casey, this Court held that the Fifth
Circuit used an incorrect legal standard. Whole
14

Woman’s Health, 136 S. Ct. at 2309. According to the ma-

jority, “[t]he rule announced in Casey . . . requires that
courts consider the burdens a law imposes on abortion
access together with the benefits those laws confer.” Id.
The Court cited the spousal-notice and parental-consent
portions of Casey to make this point, id., but neither
analysis balances benefits and burdens. Casey, 505 U.S.
at 887-98; id. at 899-901 (plurality op.). Moreover, the
Court’s post-Casey opinions did not weigh the benefits of
a challenged regulation against its burdens. See gener-
ally Gonzales, 550 U.S. 124; Stenberg, 530 U.S. 914; Ma-
zurek v. Armstrong, 520 U.S. 968 (1997) (per curiam).
Thus, while purporting to hold to Casey, the Court
introduced a wholly new standard—considering the bur-
dens “together with the benefits”—that many took to
create a new constitutional test that required courts to
balance a law’s benefits against its burdens. As Justice
Thomas noted, “the majority applies the undue-burden
standard in a way that will surely mystify lower courts
for years to come.” Whole Woman’s Health, 136 S. Ct. at
2326 (Thomas, J., dissenting).
The Whole Woman’s Health ruling set off a new wave
of abortion litigation in which abortion providers chal-
lenged numerous long-standing abortion laws under the
theory that States now had to prove that the benefits of
the law outweighed the burdens. See, e.g., In re Gee, 941
F.3d 153, 156 (5th Cir. 2019) (per curiam) (seeking a “fed-
eral injunction against virtually all of Louisiana’s legal
framework for regulating abortion”); Whole Woman’s
Health All. v. Hill, 493 F. Supp. 3d 694, 704 (S.D. Ind.
2020) (challenging “no fewer than twenty-five sections
and subsections of the Indiana abortion code and their
accompanying regulations”).
15

4. June Medical may have returned to the

undue-burden test.
Two years after the Whole Woman’s Health decision,
the Fifth Circuit attempted to reconcile Casey and Whole
Woman’s Health in a challenge to Louisiana’s admitting-
privileges law. June Med. Servs. LLC v. Gee, 905 F.3d
787, 803 (5th Cir. 2018). The court concluded that, under
Whole Woman’s Health, it must weigh the benefits and
burdens to determine whether the law imposed a sub-
stantial obstacle. Id. Doing so, the court upheld the Lou-
isiana law. Id. at 815.
This Court granted certiorari and reversed but failed
to produce a majority opinion. June Med., 140 S. Ct.
2103. The four-Justice plurality did not address whether
the Fifth Circuit properly interpreted Whole Woman’s
Health. Instead, it merely repeated the benefits lan-
guage from Whole Woman’s Health, as well as the sub-
stantial-obstacle language from Casey. Id. at 2120 (plu-
rality op.).
Chief Justice Roberts, concurring in the judgment as
the fifth vote for reversal, concluded that Casey’s undue-
burden test (that looks for a substantial obstacle) still ap-
plied: “Laws that do not pose a substantial obstacle to
abortion access are permissible, so long as they are ‘rea-
sonably related’ to a legitimate state interest.” Id. at
2135 (Roberts, C.J., concurring in the judgment). As for
the extraneous benefits language in Whole Woman’s
Health, the Chief Justice explained that (1) it is not plau-
sible to apply a balancing test, (2) Casey did not require
one, and (3) the Court should respect the statement in
Whole Woman’s Health that it was merely applying Ca-
sey. Id. at 2136-39.
Unsurprisingly, the multiple opinions in June Medi-
cal have led to a circuit split over the proper application
16

of the Marks analysis. The Sixth and Eighth Circuits

have held that that the undue-burden/substantial-obsta-
cle standard applies. EMW Women’s Surgical Ctr., 978
F.3d at 437; Hopkins v. Jegley, 968 F.3d 912, 915 (8th
Cir. 2020) (per curiam). And the Seventh and Eleventh
Circuits have held that the balancing test controls. Re-
prod. Health Servs., 2021 WL 2678574, at *12 n.6;
Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d
740, 752 (7th Cir. 2021). Thus, nearly fifty years after Roe
was decided, the constitutional test remains unknown.
C. The Court’s abortion precedent is unreliable
and unworkable.
In addition to the flaws in Roe and Casey’s constitu-
tional holdings, the unsettled nature of the Court’s abor-
tion precedent makes Roe and Casey ripe for overruling.
States and courts cannot rely on the Court’s decisions
from one precedent to the next, making the entire sys-
tem unworkable and resolvable only by the Court. See
Janus, 138 S. Ct. at 2478-79 (listing factors, such as reli-
ance and workability, that support overruling prece-
dent).
After Whole Woman’s Health, States had to defend
new challenges to longstanding statutes under a novel
benefits/burdens balancing test. But after June Medical,
States are left to guess even at the correct constitutional
test. As a result, some cases have lingered in the appel-
late courts for years, as those courts awaited guidance
from this Court. See, e.g., Whole Woman’s Health v.
Young, No. 18-50730 (5th Cir., pending since September
2018); Whole Woman’s Health v. Paxton, No. 17-51060
(5th Cir., pending since December 2017); Hopkins v.
Jegley, No. 17-2879 (8th Cir., three years from appeal to
judgment); Tulsa Women’s Reprod. Clinic, LLC v.
Hunter, No. 118,292 (Okla., pending since December
17

2019); see also Planned Parenthood of Ind. & Ky., Inc.,

991 F.3d 740 (decision following grant, vacatur, and re-
mand in light of June Medical), cert. filed No. 20-1375
(U.S. Apr. 1, 2021).
In addition to the benefits/burdens and undue-bur-
den tests, respondents here have introduced yet another
test: a law that prohibits any previability abortion is nec-
essarily unconstitutional. But this Court has held that “a
pregnant woman does not have an absolute constitu-
tional right to an abortion on her demand.” Doe, 410 U.S.
at 189. Accepting respondents’ position and holding that
a State’s law is unconstitutional if it prevents any previ-
ability abortion, no matter the circumstances, would
make the right to abortion effectively absolute, introduc-
ing even more confusion into this already muddled area.
The Court’s abortion precedent is erroneous, unreli-
able, and unworkable. It has caused some judges to
throw up their hands, knowing that any decision they
make is simply a guess at what this Court will think is
“undue”:
How much burden is “undue” is a matter of judg-
ment, which depends on what the burden would
be (something the injunction prevents us from
knowing) and whether that burden is excessive (a
matter of weighing costs against benefits, which
one judge is apt to do differently from another,
and which judges as a group are apt to do differ-
ently from state legislators). Only the Justices,
the proprietors of the undue-burden standard,
can apply it.
Planned Parenthood of Ind. & Ky., Inc. v. Box, 949 F.3d
997, 999 (7th Cir. 2019) (Easterbrook, J., concurring in
denial of rehearing en banc); see also Stenberg, 530 U.S.
at 955 (Scalia, J., dissenting) (commenting that the
18

undue-burden test results in “a democratic vote by nine

lawyers” on a “pure policy question”).
The inability of the Court to settle on a constitutional
test that can be objectively and predictably applied has
caused chaos in the lower courts and confusion in States
that seek to enact laws that comply with precedent and
defend those laws in court. Stare decisis is no bar to over-
ruling erroneous constitutional decisions that the Court
keeps changing.
II. The Court Frequently Alters Other Doctrines in
Abortion Cases.
In addition to facing uncertainty about what constitu-
tional test the Court will use, States litigating abortion
cases also have no assurance that the Court will evenly
apply traditional legal rules. Indeed, “no legal rule or
doctrine is safe from ad hoc nullification by this Court
when an occasion for its application arises in a case in-
volving state regulation of abortion.” Thornburgh v. Am.
Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 814
(1986) (O’Connor, J., dissenting).
These disorienting developments in the case law have
sown confusion and undermined confidence that the
Court will follow its own precedents in the abortion con-
text. Stare decisis has not kept the Court from uprooting
settled doctrines as needed to strike down democrati-
cally enacted abortion laws. And stare decisis should not
prevent the Court from reexamining the roots of its in-
consistent and unpredictable abortion jurisprudence.
See Janus, 138 S. Ct. at 2478-79 (listing consistency with
other decisions and subsequent legal developments as
factors in the stare decisis analysis).
19

A. The Court has created multiple abortion-

specific rules and exceptions.
“[T]he abortion right recognized in this Court’s deci-
sions” has been “used like a bulldozer to flatten legal
rules that stand in the way.” June Med., 140 S. Ct. at
2153 (Alito, J., dissenting). Whether it be the standard
for facial challenges, severability, res judicata, standing,
or even the First Amendment, the Court’s abortion prec-
edents have created and applied abortion-specific rules
and exceptions.
1. The large-fraction test lowers the burden
of proving facial unconstitutionality in
abortion cases.
In most contexts, facial constitutional challenges are
“the most difficult . . . to mount successfully.” City of Los
Angeles v. Patel, 576 U.S. 409, 415 (2015) (quoting
United States v. Salerno, 481 U.S. 739, 745 (1987)). That
is because, as the Court explained in Salerno, the chal-
lenger bears the “heavy burden” of establishing “that no
set of circumstances exists under which the Act would be
valid.” 481 U.S. at 745. In abortion cases, however, the
Court has rendered that burden almost nonexistent.
In Casey, the Court accepted that Pennsylvania’s
spousal-notification law would impact only 1% of women
seeking abortions. 505 U.S. at 894. But instead of reject-
ing the facial challenge under Salerno’s no-set-of-cir-
cumstances test, the Court announced that the “proper
focus of constitutional inquiry is the group for whom the
law is a restriction, not the group for whom the law is
irrelevant.” Id. Thus, the Court first eliminated from
consideration all women to whom the law would operate
constitutionally and then announced that the law was un-
constitutional because “in a large fraction of the cases in
which [the spousal-notification requirement] is relevant,
20

it will operate as a substantial obstacle to a woman’s

choice to undergo an abortion.” Id. at 895.
Whatever one thinks of spousal-notification laws as a
policy matter, this deviance from the established rule for
facial challenges did not go unnoticed. Four Justices
would have held that the facial challenge failed because
“it is not enough for petitioners to show that, in some
‘worst case’ circumstances,” the law would operate un-
constitutionally. Id. at 972-73 (Rehnquist, C.J., concur-
ring in the judgment in part and dissenting in part). Un-
surprisingly, the tension between Casey and Salerno re-
sulted in confusion in the lower courts. See Skye Gabel,
Casey “Versus” Salerno: Determining an Appropriate
Standard for Evaluating the Facial Constitutionality of
Abortion Statutes, 19 Cardozo L. Rev. 1825, 1827-28
(1998).
The Court’s subsequent use of Casey’s large-fraction
test has not clarified matters. In Whole Woman’s Health,
the majority used as its denominator the number of
women for whom the law was an “actual rather than an
irrelevant restriction.” 136 S. Ct. at 2320. But as Justice
Alito pointed out in his dissent, defining the denominator
as the number of women whom the law restricts will al-
ways result in a large fraction of “1.” Id. at 2343 n.11
(Alito, J., dissenting). Justice Gorsuch put it more
simply: Casey’s large-fraction test “winds up asking only
whether the law burdens a very large fraction of the peo-
ple that it burdens” and is “unlike anything we apply to
facial challenges anywhere else.” June Med., 140 S. Ct.
at 2176 (Gorsuch, J., dissenting).
21

2. The Court has disregarded the doctrines of

severability and res judicata in abortion
cases.
The Court doubled down on its abortion-specific
standards in Whole Woman’s Health, setting aside the
otherwise-applicable doctrines of severability and res ju-
dicata in order to declare both of Texas’s laws facially
unconstitutional—a remedy the plaintiffs had not even
requested.
First, the Court rejected Texas’s severability argu-
ment, which was based on “what must surely be the most
emphatic severability clause ever written.” Whole
Woman’s Health, 136 S. Ct. at 2331 (Alito, J., dissent-
ing). The Court had previously held that it “pre-
fer[red] . . . to enjoin only the unconstitutional applica-
tions of a statute while leaving other applications in force
or to sever its problematic portions while leaving the re-
mainder intact.” Ayotte v. Planned Parenthood of N.
New England, 546 U.S. 320, 328-29 (2006) (citations
omitted). Yet, when confronted with a challenge to
Texas’s requirement that abortion facilities comply with
ambulatory-surgical-center regulations, the Court inval-
idated the entire regulatory system rather than severing
the allegedly unconstitutional regulations from those for
which the plaintiffs offered no proof at all. Whole
Woman’s Health, 136 S. Ct. at 2319-20; see also id. at
2352 (Alito, J., dissenting) (explaining that the Court in-
validated such innocuous standards as treating patients
with respect, having fire alarms, and eliminating slipping
hazards). Not even First Amendment rights receive this
de facto antiseverability doctrine. E.g., Barr v. Am. Ass’n
of Pol. Consultants, Inc., 140 S. Ct. 2335, 2349-56 (2020)
(plurality op.). Abortion plaintiffs alone receive its
22

benefit, providing them with relief beyond what other lit-

igants would be entitled to receive.
A second doctrine that Whole Woman’s Health side-
lined was res judicata. Several of the plaintiffs had pre-
viously brought a facial challenge to Texas’s admitting-
privileges law and lost. Planned Parenthood of Greater
Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 605
(5th Cir. 2014). Under the ordinary rules of res judicata,
facial invalidation would have been barred by claim pre-
clusion: It is a “fundamental precept of common-law ad-
judication” that, “once an issue is actually and neces-
sarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits
based on a different cause of action involving a party to
the prior litigation.” Montana v. United States, 440 U.S.
147, 153 (1979). Moreover, it is “a cardinal rule of res ju-
dicata” that “[c]laim preclusion does not contain a ‘better
evidence’ exception.” Whole Woman’s Health, 136 S. Ct.
at 2335 (Alito, J., dissenting); see Restatement (Second)
of Judgments § 25, cmt. b; 18 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure § 4403, p. 33
(2d ed. 2002).
Nevertheless, in a second challenge to Texas’s admit-
ting-privileges law (and one that sought only as-applied
relief), the Whole Woman’s Health Court upheld the
grant of facial relief, trampling res judicata in the pro-
cess. Once again demonstrating that the ordinary rules
do not apply in the abortion context, the Court “create[d]
an entirely new exception to the rule that a losing plain-
tiff cannot relitigate a claim just because it now has new
and better evidence.” Whole Woman’s Health, 136 S. Ct.
at 2337 (Alito, J., dissenting). Based solely on subsequent
“concrete factual developments,” the Court held that the
plaintiffs’ earlier defeat did not prevent the Court from
sustaining a facial challenge—this, even though the
23

plaintiffs had not requested facial relief. Id. at 2306-07

(majority op.).
Thus, in its zeal to strike down Texas’s laws, the
Court in Whole Woman’s Health disregarded the tradi-
tional standard for facial challenges, severability, res ju-
dicata, and the scope of relief. See id. at 2321 (Thomas,
J., dissenting) (stating that the majority’s decision “cre-
ates an abortion exception to ordinary rules of res judi-
cata . . . and disregards basic principles of the severabil-
ity doctrine”); see also June Med., 140 S. Ct. at 2153
(Alito, J., dissenting) (“In Whole Woman’s Health, res
judicata and our standard approach to severability were
laid low.”).
By setting aside severability and using the large-frac-
tion test, the Court permits federal courts to hold entire
bodies of regulations unconstitutional based on their im-
pact on a handful of women. And if at first the plaintiffs
don’t succeed, they can try again without the bar of res
judicata. No other class of plaintiffs is given such prefer-
ential treatment.
3. The Court has allowed abortion providers
to exercise third-party standing despite
conflicts of interest.
As recently litigated in June Medical, the Court has
also permitted abortion providers to bring suit on behalf
of their patients in circumstances that would typically
preclude third-party standing. Ordinarily, a plaintiff
“must assert his own legal rights and interests, and can-
not rest his claim to relief on the legal rights or interests
of third parties.” Conn v. Gabbert, 526 U.S. 286, 293
(1999) (quoting Warth v. Seldin, 422 U.S. 490, 499
(1975)). A limited exception applies when “the party as-
serting the right has a ‘close’ relationship with the per-
son who possesses the right” and “there is a ‘hindrance’
24

to the possessor’s ability to protect his own interests.”

Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Concerns
about third-party standing are at their apex when there
may be a conflict of interest between the plaintiff and the
third party. See Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 15 (2004).
The evidence in June Medical revealed no “close” re-
lationship between abortion providers and patients,
showing that a patient seldom met with the provider
more than once or twice and often did not know who the
provider was. 140 S. Ct. at 2168 (Alito, J., dissenting).
And abortion patients do not face a hindrance to bringing
suit, as they may use pseudonyms to protect their pri-
vacy and the capable-of-repetition-yet-evading-review
rule to avoid mootness. Id. at 2168-69. Yet, as in many
cases before it, a majority of the Court in June Medical
permitted abortion providers to challenge (on behalf of
their patients) Louisiana’s admitting-privileges law. 140
S. Ct. at 2117-20 (plurality op.); id. at 2139 n.4 (Roberts,
C.J., concurring in the judgment). “This lackadaisical
treatment of third-party standing in the abortion context
is markedly different from the Court’s strict adherence
to the doctrine where other constitutional rights are at
stake.” Kaytlin L. Roholt, Give Me Your Tired, Your
Poor, Your Pregnant: The Jurisprudence of Abortion
Exceptionalism in Garza v. Hargan, 5 Tex. A&M L. Rev.
505, 530 (2018) (providing examples).
Worse, the Court has allowed abortion providers to
exercise third-party standing even when challenging
laws designed to protect their patients. June Med., 140
S. Ct. at 2119-20 (plurality op.). “[T]he idea that a regu-
lated party can invoke the right of a third party for the
purpose of attacking legislation enacted to protect the
third party is stunning.” Id. at 2153 (Alito, J., dissenting);
see also id. at 2174 (Gorsuch, J., dissenting) (“Louisiana’s
25

law expressly aims to protect women from the unsafe

conditions maintained by at least some abortion provid-
ers who, like the plaintiffs, are either unwilling or unable
to obtain admitting privileges.”). It is “an abortion-only
rule.” Id. at 2170 (Alito, J., dissenting).
4. The Court’s abortion exceptionalism has
muddled its First Amendment
jurisprudence.
Those who choose to exercise their First Amendment
rights to speak out against abortion have also fallen vic-
tim to the Court’s “ad hoc nullification machine” that
“push[es] aside whatever doctrines of constitutional law
stand in the way of that highly favored practice.” Hill v.
Colorado, 530 U.S. 703, 741 (2000) (Scalia, J., dissenting).
In Hill, individuals who engaged in sidewalk counseling
outside abortion clinics challenged a Colorado law that
made it a crime to approach within eight feet of an un-
willing listener near the entrance of a healthcare facility
“for the purpose of . . . engaging in oral protest, educa-
tion, or counseling with such other person.” Id. at 707
(majority op.). Even though the law could not be en-
forced without reference to the content of the speaker’s
speech (to determine his “purpose” for speaking), the
Court found the law content neutral. Id. at 725. Applying
only intermediate scrutiny, the Court held the law was
constitutional because it was “reasonable and narrowly
tailored.” Id. at 730.
The dissenters were unsparing in their criticism, con-
cluding that the decision was “patently incompatible with
the guarantees of the First Amendment.” Id. at 741
(Scalia, J., dissenting); see also id. at 742 (noting that
“the jurisprudence of this Court has a way of changing
when abortion is involved”); cf. Virginia v. Black, 538
U.S. 343, 399-400 (2003) (Thomas, J., dissenting)
26

(contrasting First Amendment protection in the abortion

and cross-burning contexts). Justice Kennedy agreed
that the majority’s holding “contradict[ed] more than a
half century of well-established First Amendment prin-
ciples” and that, “[f]or the first time, the Court ap-
prove[d] a law which bars a private citizen from passing
a message, in a peaceful manner and on a profound moral
issue, to a fellow citizen on a public sidewalk.” Hill, 530
U.S. at 765 (Kennedy, J., dissenting). Scholars also ac-
cused the majority’s decision of being “deeply colored by
abortion politics” and opined that “[t]he decision reflects
a disoriented attitude . . . about aggressive legislative as-
saults on free speech rights in the most public spaces.”
Jamin B. Raskin & Clark L. LeBlanc, Disfavored Speech
About Favored Rights: Hill v. Colorado, the Vanishing
Public Forum and the Need for an Objective Speech Dis-
crimination Test, 51 Am. U.L. Rev. 179, 182 (2001).
Hill was all but reversed in Reed v. Town of Gilbert,
576 U.S. 155 (2015). In that case—notably outside the
abortion context—the town “adopted a comprehensive
code governing the manner in which people may display
outdoor signs.” Id. at 159. The Court rejected the argu-
ment that the sign code was content neutral, explaining
that even if a law is content neutral on its face, it is con-
tent based if it “cannot be justified without reference to
the content of the regulated speech.” Id. at 164. Because
the sign code “single[d] out specific subject matter for
differential treatment” by applying different rules to dif-
ferent signs based on their purpose (temporary direc-
tional, political, and ideological), it was content based and
subject to strict scrutiny, even though it did not discrim-
inate among viewpoints. Id. at 169, 171.
As Justice Thomas recently noted, there is “glaring
tension” between Hill and Reed with respect to whether
a law is subject to strict scrutiny when it “targets a
27

‘specific subject matter . . . even if it does not discrimi-

nate among viewpoints within that subject matter.’”
Bruni v. City of Pittsburgh, 141 S. Ct. 578, 578 (2021)
(Thomas, J., respecting the denial of certiorari) (quoting
Reed, 576 U.S. at 179). And he is not the only one to no-
tice this tension. The Seventh Circuit, in Price v. City of
Chicago, considered Chicago’s “bubble zone” ordinance,
which prohibited individuals from approaching within
eight feet of a person in the vicinity of an abortion clinic
if their purpose is to “engage in counseling, education,
leafletting, handbilling, or protest.” 915 F.3d 1107, 1109
(7th Cir. 2019), cert. denied, 141 S. Ct. 185 (2020). The
Seventh Circuit flatly stated that “Hill is incompatible
with current First Amendment doctrine” as explained in
Reed. Id. at 1117. But the court also acknowledged that,
“[w]hile the Supreme Court has deeply unsettled Hill, it
has not overruled the decision.” Id. at 1119.
Thus, there continues to be an abortion exception to
the First Amendment. And while this case cannot allevi-
ate that conflict, it is simply further evidence of the way
in which abortion has warped this Court’s jurisprudence.
5. The Court has declined to give discretion
to legislatures crafting abortion laws amid
medical uncertainty.
The ability of legislatures to legislate on matters of
medical or scientific uncertainty also waxes and wanes
depending on whether the legislation concerns abortion.
The Court has previously explained that “[w]hen Con-
gress undertakes to act in areas fraught with medical
and scientific uncertainties, legislative options must be
especially broad.” Marshall v. United States, 414 U.S.
417, 427 (1974); see also Jones v. United States, 463 U.S.
354, 364-65, n.13 (1983). The same is true for state legis-
latures, which are “afforded the widest latitude” in
28

drafting statutes when “disagreement exists” in the

fields of medicine and science. Kansas v. Hendricks, 521
U.S. 346, 360 n.3 (1997); see also Collins v. State of Tex.,
223 U.S. 288, 297-98 (1912) (noting that States may
“adopt a policy even upon medical matters concerning
which there is difference of opinion and dispute”). In-
deed, members of the Court relied on that latitude when
upholding various government regulations aimed at com-
batting COVID-19. See, e.g., Andino v. Middleton, 141
S. Ct. 9, 10 (2020) (Kavanaugh, J., concurring) (stating
that such decisions “should not be subject to second-
guessing by an ‘unelected federal judiciary’”); S. Bay
United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1613-14 (2020) (Roberts, C.J., concurring) (same).
For a while, it appeared the Court would give Con-
gress and state legislatures that broad latitude when it
came to enacting laws regulating abortion. Regarding
Pennsylvania’s law that a physician must provide infor-
mation to a patient in Casey, the Court noted that States
have “broad latitude to decide that particular functions
may be performed only by licensed professionals, even if
an objective assessment might suggest that those same
tasks could be performed by others.” 505 U.S. at 885.
When it considered the “documented medical disagree-
ment” about the health risks of the Partial-Birth Abor-
tion Ban Act in Gonzales, this Court observed that it “has
given state and federal legislatures wide discretion to
pass legislation in areas where there is medical and sci-
entific uncertainty.” 550 U.S. at 162-63. Going further,
the Court concluded that “[t]he medical uncertainty over
whether the Act’s prohibition creates significant health
risks provides a sufficient basis to conclude in this facial
attack that the Act does not impose an undue burden.”
Id. at 164.
29

But the Court has since departed from that position.

In Whole Woman’s Health, the Court walked back “[t]he
statement that legislatures, and not courts, must resolve
questions of medical uncertainty.” 136 S. Ct. at 2310. In-
stead, the Court explained that, “when determining the
constitutionality of laws regulating abortion procedures,
[the Court] has placed considerable weight upon evi-
dence and argument presented in judicial proceedings.”
Id. In doing so, the Court discarded a “core element of
the Casey framework” and inverted the traditional rule
applied in Gonzales. See id. at 2325 (Thomas, J., dissent-
ing).
The Court again declined to allow a state legislature
to decide an issue of medical uncertainty in June Medi-
cal. There, the plurality relied on the district court’s find-
ing that Louisiana’s admitting-privileges law offered “no
significant health-related benefits.” 140 S. Ct. at 2132
(plurality op.). Yet Justice Alito identified “ample evi-
dence in the record showing that admitting privileges
help to protect the health of women by ensuring that
physicians who perform abortions meet a higher stand-
ard of competence than is shown by the mere possession
of a license to practice.” Id. at 2155 (Alito, J., dissenting).
Justice Gorsuch agreed, pointing out that the plurality
ignored Louisiana’s legislative findings and yielded the
State no more discretion than if the law had “fallen from
the sky.” Id. at 2172 (Gorsuch, J., dissenting). This is yet
another example of abortion exceptionalism that casts
doubt on the Court’s “willingness to follow the traditional
constraints of the judicial process when a case touching
on abortion enters the courtroom.” Id. at 2171.
30

B. The Court’s abortion-specific jurisprudence

should be corrected by overruling Roe and
Casey.
Other abortion-specific rules abound. Justice Thomas
recently noted that, in the context of criminal conduct,
the Court treats minors as “children” who are less culpa-
ble, but in the context of abortion, the Court treats mi-
nors as mature young women. Jones v. Mississippi, 141
S. Ct. 1307, 1326 n.2 (2021) (Thomas, J., concurring). The
Court has ruled on the constitutionality of abortion reg-
ulations despite having only a preliminary-injunction
record “in contravention of settled principles of constitu-
tional adjudication and procedural fairness.” Thorn-
burgh, 476 U.S. at 815 (O’Connor, J., dissenting). And
Roe itself departed from the Court’s “longstanding ad-
monition that it should never formulate a rule of consti-
tutional law broader than is required by the precise facts
to which it is to be applied.” 410 U.S. at 172 (Rehnquist,
J., dissenting) (internal quotation marks omitted).
The creation of numerous abortion-specific rules will
only hurt the Court’s integrity in the long run. “Abortion
doctrine has become known for inconsistency and inco-
herence. Those on both sides of the abortion conflict have
bemoaned what they call abortion law exceptionalism—
doctrinal twists or interpretations that seem applicable
only in abortion cases.” Mary Ziegler, The Jurispru-
dence of Uncertainty: Knowledge, Science, and Abor-
tion, 2018 Wis. L. Rev. 317, 357 (2018) (footnotes omit-
ted). As a result, the Court’s case law “is now so riddled
with special exceptions for special rights that [its] deci-
sions deliver neither predictability nor the promise of a
judiciary bound by the rule of law.” Whole Woman’s
Health, 136 S. Ct. at 2321 (Thomas, J., dissenting).
31

These developments since Roe and Casey show that

the Court’s abortion jurisprudence is both unworkable
and corrosive, gradually wearing away the foundations
of doctrines as varied as facial constitutional challenges,
severability, res judicata, third-party standing, free
speech, and legislative discretion. Accordingly, stare de-
cisis should not prevent the Court from revisiting its fun-
damental pronouncements concerning abortion. See
Montejo v. Louisiana, 556 U.S. 778, 792 (2009) (“[T]he
fact that a decision has proved ‘unworkable’ is a tradi-
tional ground for overruling it.”); Agostini v. Felton, 521
U.S. 203, 235-36 (1997) (“[S]tare decisis does not prevent
[the Court] from overruling a previous decision where
there has been a significant change in, or subsequent de-
velopment of, [its] constitutional law.”).
III. It Is Time To Revisit and Overturn Roe and
Casey.
The States may, consistent with this Court’s deci-
sions, regulate the availability of abortion before viabil-
ity to prevent pain in utero. But if they cannot, it is this
Court’s decisions, and not the States’ laws, which must
yield. Any precedent that can be interpreted to mean
that it is irrelevant whether an unborn child feels pain
during dismemberment has no place in a just society.
The Court declined this opportunity in Casey, hoping
that its decision would preserve the Court’s integrity and
“call[] the contending sides of a national controversy to
end their national division by accepting a common man-
date rooted in the Constitution.” 505 U.S. at 866-67. It
has done neither. Time has not lessened the belief that
unborn life deserves protection. Rather, an increasing
number of States are enacting laws that seek to protect
32

unborn life earlier and earlier in gestation. 2 People of

good conscience will always disagree on this issue, id. at
850, and the Court’s attempt to settle it has failed. More-
over, the Court’s continuing vacillation over the constitu-
tional test and the creation of new, abortion-specific
rules have only made matters worse.
In Casey, the Court spoke of allowing a woman to
shape her “destiny” and to “define [her] own concept of
existence, of meaning, of the universe, and of the mys-
tery of human life.” Id. at 851-52. These enlightened sen-
timents have produced a grim reality. This Court’s opin-
ions have resulted in lower-court decisions holding that
a woman has a constitutional right to (1) have a doctor
dismember her living unborn child, see W. Ala. Women’s
Ctr. v. Williamson, 900 F.3d 1310, 1329 (11th Cir. 2018),
cert. denied, 139 S. Ct. 2606 (2019); (2) reject her unborn
child based on the child’s sex, gender, and abilities, see
Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S.
Ct. 1780, 1781 (2019) (per curiam) (denying certiorari on
second question); and (3) as here, demand an abortion at
any point prior to viability, even if it causes her unborn
child excruciating pain, Jackson Women’s Health Org. v.
Dobbs, 945 F.3d 265, 273 (5th Cir. 2019), cert. granted in
part, No. 19-1392, 2021 WL 1951792 (U.S. May 17, 2021).

2
Ala. Code § 26-23H-4; Ariz. Rev. Stat. § 36-2159(B); Ark. Code
§ 20-16-1304(a); Ga. Code § 16-12-141(b); Idaho Code § 18-8704; Ind.
Code § 16-34-2-1(a)(3); Iowa Code § 146C.2; Kan. Stat. §§ 65-6723(f)
& 6724(a); Ky. Rev. Stat. § 311.7706(1); La. Stat. § 40:1061.1(E);
Miss. Code § 41-41-137; Mo. Rev. Stat. § 188.058(1); Neb. Rev. Stat.
§ 28-3,106; N.C. Gen. Stat. § 14-45.1(a); N.D. Cent. Code § 14-02.1-
05.3(3); Ohio Rev. Code § 2919.195(A); Okla. Stat. tit. 63, § 1-
745.5(A); S.C. Code § 44-41-680; S.D. Codified Laws § 34-23A-70;
Tenn. Code § 39-15-216; Tex. Health & Safety Code § 171.203; Utah
Code § 76-7-302.5; W. Va. Code §§ 16-2M-2(7) & 4(a).
33

As Justice Thomas has stated, the Court “cannot con-

tinue blinking the reality of what [it] has wrought.” W.
Ala. Women’s Ctr., 139 S. Ct. at 2607 (Thomas, J., con-
curring in the denial of certiorari). The Court’s abortion
precedent is erroneous, inconsistent, uneven, and unreli-
able. Traditional stare decisis principles cannot save it.
Roe and Casey should be overruled.
C O NC LU SIO N
The judgment of the court of appeals should be re-
versed.
Respectfully submitted.

KEN PAXTON JUDD E. STONE II

Attorney General of Texas Solicitor General
Counsel of Record
BRENT WEBSTER
First Assistant Attorney KYLE D. HIGHFUL
General BETH KLUSMANN
Assistant Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[email protected]
(512) 936-1700

JULY 2021

Counsel for Additional Amici States:

STEVE MARSHALL MARK BRNOVICH
Attorney General Attorney General
of Alabama of Arizona
TREG R. TAYLOR LESLIE RUTLEDGE
Attorney General Attorney General
of Alaska of Arkansas
34

ASHLEY MOODY WAYNE STENEHJEM

Attorney General Attorney General
of Florida of North Dakota
CHRISTOPHER M. CARR DAVE YOST
Attorney General Attorney General
of Georgia of Ohio
LAWRENCE G. WASDEN JOHN M. O’CONNOR
Attorney General Attorney General
of Idaho of Oklahoma
THEODORE E. ROKITA ALAN WILSON
Attorney General Attorney General
of Indiana of South Carolina
DEREK SCHMIDT JASON R. RAVNSBORG
Attorney General Attorney General
of Kansas of South Dakota
DANIEL CAMERON HERBERT H. SLATERY III
Attorney General Attorney General
of Kentucky of Tennessee
JEFF LANDRY SEAN D. REYES
Attorney General Attorney General
of Louisiana of Utah
ERIC SCHMITT PATRICK MORRISEY
Attorney General Attorney General
of Missouri of West Virginia
AUSTIN KNUDSEN BRIDGET HILL
Attorney General Attorney General
of Montana of Wyoming
DOUGLAS J. PETERSON
Attorney General
of Nebraska