December 1, 2021

"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.... Numerous groups attack the viability standard that the court adopted in Roe v. Wade and Planned Parenthood v. Casey.... Many amici focus on the principle of stare decisis – and urge the court not to follow it in this case....  Twenty-four states... criticize the court’s 'erroneous and constantly changing abortion precedent.'... Twelve governors write... that the court’s abortion precedent represents an 'intrusion into the sovereign sphere of the States.'.... 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....  The Thomas More Society argues that the right to reproductive freedom is not supported by history or legal tradition.... A brief from the Susan B. Anthony List and 79 women [argues]... '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 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.... Medical ethics The Christian Medical & Dental Associations argue that performing abortions violates a physician’s duty to protect life and avoid doing harm.... 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'...."

From "We read all the amicus briefs in Dobbs so you don’t have to" at SCOTUSblog. The oral argument is today, at 10 Eastern Time. You'll be able to listen to the audio here.

From the summary of amicus briefs supporting abortion rights:
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.... 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.... 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.”... Three constitutional law scholars, Serena Mayeri, Melissa Murray, and Reva Siegel, argue that... the Mississippi law violates equal protection because it relies on outdated stereotypes about women’s roles as maternal figures in society..... Various groups write that the ban, if upheld, will disproportionately affect marginalized groups, particularly people of color and people with low incomes.... 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.... 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 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.... A group of abortion funds and practical support organizations... 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.... 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.” 

44 comments:

Achilles said...

Twelve governors write... that the court’s abortion precedent represents an 'intrusion into the sovereign sphere of the States.'

Are the other 38 just too lazy to be bothered?

Achilles said...

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.

Are these sworn statements? That is so far outside the scientific literature that it would be perjury on the stand.

Achilles said...

A group of abortion funds and practical support organizations... 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

You cannot have a free society with people this pathetic and dishonest.

rehajm said...

Do you see that crowd outside the court? We know for sure Dobbs kills lockdowns...

gspencer said...

Professor Mary Ann Glendon - who, years and years ago, taught me all about Pierson v. Post.

She had a thing about foxes.

Achilles said...

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.”

That is a dishonest argument.

It should be dealt with at the State level though.

Birches said...

I saw something from someone yesterday on Twitter about how we could think of the lawyers arguing the case when we tucked our kids in last night. So last night I prayed for Mississippi's lawyers and SCOTUS.

Let's do this.

Lem said...

Life has been devalued by abortion on demand. So much so I would even connect abortion on demand to school shootings.
It’s time to let the people decide thru their state legislatures.

gilbar said...

that abortion violates the 13th Amendment’s prohibition of slavery. 'When aborting her fetus, a mother treats her child as slave property'...."

lots of you are lawyer types....
Can one of you (any of you?) explain to me, how Roe v. Wade isn't Slavery?
Is there Any way that Pro-Choice is not Slave Ownership?

(i mean, other than that fetuses don't count in the census as 3/5th of a person?)

gilbar said...

If someone kills your slave; that's a crime.. If You kill it it's not
If someone kills your fetus; that's a crime.. If You kill it it's not
You can Sell Slaves, You can Sell Fetuses (surrogate motherhood)
Your Body, Your Plantation.

Václav Patrik Šulik said...

I would love to see someone tell me what provision of the constitution guarantees the right to terminate a pregnancy. The Equal Protection Clause is no longer a viable option, now that men are having babies.

I don't care what you base your stand on, just take a stand. It can be the third amendment, which seems to be the best argument I've heard although it still falls short. ("No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.")

God of the Sea People said...

It is interesting to me that this issue is arising at the exact moment that Democrats have decided to reject personal bodily autonomy in the form of vaccine mandates. I would enjoy much schadenfreude if whomever authors this opinion pointed that out.

I am personally pro-choice, but the Courts reasoning in Roe always struck me as poorly reasoned, and I don't like the idea of the Court creating rights where legislation and constitutional amendments are the better remedy. I don't think it would be the end of the world if abortion returned to being a states-rights issue, but I would much rather not hand the imploding Democrats an issue around which their base would surely rally.

Joe Smith said...

It's a good thing Science® doesn't depend so much on stare decisis.

If it did, the sun would still be circling us, and we'd be getting regularly bled to get rid of bad humors...

jim5301 said...

If one believes a fetus is a human life worthy of constitutional protection, then it is dishonest to say it should be left up to the states.

Douglas B. Levene said...

How many of the amicus briefs do you think the average Justice reads? I would guess none, although their clerks probably skim all of them and may even read a few of the better written ones.

Big Mike said...

My prediction: the Court will rule 6:3 that restrictions are consistent with Roe as long they are reasonable (though they will probably not use the word “reasonable,” but that will be the gist of it). However they will also rule that 15 weeks is not reasonable. It may be 5:4 instead of 6:3, and there’s an outside (waaaayyy outside) chance of 7:2, but they will not okay Mississippi’s rules as they stand (i.e. at 15 weeks) nor will they vote the extremist position of supporting late term abortions.

Brian said...

The dissent in this case is going to be lit.

Aric said...

The American Civil Liberties Union argues [...] the Constitution’s promise of “a realm of personal liberty which the government may not enter.”

I'd be interested in seeing a few other examples of these supposed realms. In 2021, there are very few realms of personal liberty which the government may not enter, and the ACLU and its fellow travelers are hard at work getting rid of them.

traditionalguy said...

Current SCOTUS wisdom:The slaughter of the innocents is private, so slaughter away. Only bigoted religious people believe the innocents have a person of value status. Kill them all. Kill, Kill, Kill them all.

Hmm.

tommyesq said...

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.

Was this evidence before any of the lower courts (District and Circuit)? How much leeway do Amici get in introducing new evidence, which the opposite side (here, the proponents of the Mississippi law) did not get to test through discovery and testimony?

tim maguire said...



I'm surprised at this one. Even though Susan B. was pro-life, I'd expect anyone forming a group under her name would ignore her views in this sphere. But they're right and this should be an important argument--not only is abortion more properly an issue for the states, but it is sexist to think the women of those states need someone to hold their hands and fix their problems for them.

Greg The Class Traitor said...

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.”...
Gee, ACLU, and where do "vaccine mandates" fit into that "realm of personal liberty"?

How about taking medicines without a prescription?
Or suicide?
Does anything at all fit inside that "realm of personal liberty", other than Left wing beliefs about sex and its results?

Three constitutional law scholars, Serena Mayeri, Melissa Murray, and Reva Siegel, argue that... the Mississippi law violates equal protection because it relies on outdated stereotypes about women’s roles as maternal figures in society.....
No, we don't let fathers murder their children, either

Various groups write that the ban, if upheld, will disproportionately affect marginalized groups, particularly people of color and people with low incomes....
Translation: if you uphold this ban then more of the wrong people will have babies!
Who was it who was claiming that teh Eugenics Movement is no longer one of the driving forces of teh abortion movement? because they're wrong

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....
Then they're vote for politicians who allow them that abrotion access.

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....
Despite the fact that it's nowhere in the US Constitution

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....
1: That's a lie
2: WTF is a "world leader in science and medicine"? Did they name names?

A group of abortion funds and practical support organizations... 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....
More Eugenicists desperate for brown, black, and poor babies to be killed.

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.”
Whereas Roe and Casey enshrine their "religious belief about when personhood begins" into the US Constitution.
Which is not an improvement

Original Mike said...

"A group of abortion funds and practical support organizations... 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...."

First, black people aren't competent to get voter-ID, now women aren't able to get an abortion given three months.

Sure glad I'm not in a group the left "supports".

Mike of Snoqualmie said...

Abortion advocates think that abortion only affects the woman and that abortion is a right. Abortion affects three people, the mother, father and the BABY. The interests of the latter two are ignored by abortion activists. The rights of all three must be considered that is the job of the state legislatures, not the Supreme Court. The Supreme Court should overturn Roe v. Wade and return the law on abortion back to the state legislatures.

We've had 50 years of abortion wars because the Supreme Court shown their flashlight into the penumbras of the Constitution that only they knew existed. If they'd just said that abortion is a state issue that needs to be settled by the states, we'd have had 50 years of peace and settle abortion law.

n.n said...

First, slavery. Then, diversity [dogma] (i.e. color judgment). NOW, the wicked solution (i.e. sacrifice, experimentation, sequestration of virginal/innocent human lives). Leftists are notoriously trans-humane.

That said, four choices and still six weeks. The tell-tale hearts beat sooner and ever louder.

The Freedom From Religion Foundation

... is a religious (i.e. behavioral protocol) organization, just with different gods and goddesses, notably mortal, to dictate their prescriptions, proscriptions, and redistributive lucre NOW.

Roe, Roe, Roe your baby down the river Styx. #HateLovesAbortion

n.n said...

American Atheists argue that getting rid of the viability framework would “enshrine into civil law a religious belief about when personhood begins.”

The Constitution is written for two parties: The People and our Posterity.

The Atheists need to lose their religion, and mortal gods and goddesses who dictate their beliefs. A human life evolves from conception to natural death (Her Choice), or elective abortion (her Choice).

The viability framework is an arbitrary quasi-scientific, religious (e.g. morality, its relativistic sibling "ethics", its politically congruent cousin "law") construct to justify reproductive rites for light, social, and fair weather causes: social progress, medical progress, and climate mitigation.

The privacy apology is essentially a testament that demos-cracy is aborted in darkness (if you can get away with it), normalized by the Progressive Cult under the Pro-Choice religion.

The Pro-Choice religion denies women and men's dignity and agency, and reduces human life to a negotiable asset. Keep women appointed, available, and taxable is approved by feminists and masculinists alike.

There is no mystery in sex and conception, four choices and still six weeks. The tell-tale hearts beat sooner and ever louder.

Roe, Roe, Roe your baby down the river Styx. #HateLovesAbortion

Wa St Blogger said...

The court will not make a major ruling. They will do a minimalist change at most because of the seriousness of the issue. This is what thy have done in every case involving actual enumerated rights. Roberts will defer always to the current law or state of affairs and try not to allow changes to occur. He's be the pilot of a ship heading for the rocks and would steer as little as possible because it would be unthinkable to imagine that the wind ad the current could be detrimental to the long term viability of the ship. Roberts' court would not overturn Dred Scott.

I think the argument that will most sway the court is: Americans have come to rely on access to abortion over the last 50 years to structure their lives....

Leora said...

I'm disappointed at the lack of summary of the amicus briefs supporting the 15 week rule. It's clear unlike the viability standard. It's in line with what most of the world does - I don't think any European country, including those who allow euthanasia, that allows abortions within the second trimester without a medical reason or fetal abnormality both of which are allowed in this bill. The Texas snitch law is an abomination but this one is quite reasonable.

MartyH said...

I don’t see the conflict between the Mississippi law and Roe. Roe specified a right for at least the first trimester, or about thirteen weeks. The Mississippi law grants fifteen weeks. This law codifies the ruling in Roe. Any objections cannot be based on Roe itself. A ruling confirming the Mississippi law upholds Roe. However, it will not be reported this way if the Mississippi law is upheld.

Ann Althouse said...

“ I'm disappointed at the lack of summary of the amicus briefs supporting the 15 week rule. It's clear unlike the viability standard.”

It’s clear in a statute but what would the constitutional doctrine be? The Court can’t pick 15 weeks as constitutional law. That would just be arbitrary. Viability is at least something factual.

Greg The Class Traitor said...

jim5301 said...
If one believes a fetus is a human life worthy of constitutional protection, then it is dishonest to say it should be left up to the states.

And now for another round of "ignorant, stupid, or a liar?"

The US Federal Gov't does not have murder laws. That is left up to each individual State.

The point here is that there's nothing in the US Constitution that creates a right to murder your baby, so Roe and Casey are illegitimate and must go.

Now, I confess, it might be funny to watch a bunch of black people sue under the 14th Amendment, claiming that allowing the abortion of black babies (but not white ones) is a civil rights violation that should cause the States that allow that to lose some of their electoral power.

But I think we can safely leave that for another day

Greg The Class Traitor said...

Ann Althouse said...
“ I'm disappointed at the lack of summary of the amicus briefs supporting the 15 week rule. It's clear unlike the viability standard.”

It’s clear in a statute but what would the constitutional doctrine be? The Court can’t pick 15 weeks as constitutional law. That would just be arbitrary. Viability is at least something factual.


"Viability" changes on a regular basis. IIRC, it's moved 5 weeks since Roe. Some day we'll have artificial wombs, at which point "viability" will be at conception.

At that point, will you agree that there can be no "Constitutional" "right" to an abortion?

Greg The Class Traitor said...

Transcript is finally up. I find this interesting:
GENERAL PRELOGAR: I think the state is wrong about that. And I -- I think where the analysis goes wrong in reliance on those safe haven laws is overlooking the consequences of forcing a woman upon her the choice of having to decide whether to give a child up for adoption. That itself is its own monumental decision for her.

So, apparently for the Biden* Admin, killing your baby is no big deal, but putting the baby up for adoption is a "monumental decision".

The Left is just so mentally deranged

Michelle Dulak Thomson said...

MartyH,

That's not quite right. Roe had three trimesters in it; only in the third was abortion (mostly) forbidden, though even there, there were causes -- rape, incest, fetal deformity (which could be anything from anencephaly to a cleft palate, though in real life it's most likely Down Syndrome) -- that made abortion available. Why this ability to snuff a mentally retarded child at will is not a violation of the ADA, I don't know. Mothers pregnant with Down children are routinely pressured by their ever-so-caring physicians to schedule an abortion the instant the amnio comes up Down.

The difficulty is mostly in the second trimester, where Roe said abortion could be regulated, sure, but only in defense of the woman's health. Casey dropped the trimester format, since live babies were being delivered frequently in the second trimester.

n.n said...

That would just be arbitrary. Viability is at least something factual.

Sex and conception is factual and no mystery. The heart beat is factual, observable, and reproducible. The development of the nervous system is factual, observable, and reproducible. The viability apology is a quasi-scientific, social construct that progresses (i.e. monotonic) with scientific and technical advancement, and varies with religious (i.e. moral, ethical, legal) perspective, and, for now, is a politically congruent excuse to deny women's bodily sovereignty in the second and third trimesters in order to relieve the "burden of her and his choice, and other purposes.

Scott M said...

A brief from the Susan B. Anthony List and 79 women [argues]

Thirty Helens Agree...https://youtu.be/INi4r2z7yGg

n.n said...

the pilot of a ship heading for the rocks and would steer as little as possible because it would be unthinkable to imagine that the wind ad the current could be detrimental to the long term viability of the ship

Exactly. This was the reasoning behind the original compromise (i.e. slavery), and, in some jurisdictions, the apology for sustainable diversity [dogma] (e.g. racism) [inequity, and exclusion], which were well considered until after the foreign and domestic threats to national viability were resolved or reconciled. Planned parent/hood was legalized under the Twilight Amendment, and normalized under the Pro-Choice religion, which has been the source of progressive mischief not limited to the wicked solution.

There is no mystery in sex and conception. A woman and man have four choices, self-defense, and still six weeks to hold a reproductive rite for light, social, redistributive, and fair weather causes.

Roe, Roe, Roe your baby down the river Styx. #HateLovesAbortion

Mark said...

Viability is at least something factual

And what factual are we talking about with "capable of meaningful life outside the womb"? What the hell does "meaningful" mean?

And what fact is raised in that dividing line between one class of human life and another class of what can only be deemed subhuman life other than an untermenschen ideology that was rejected by the 13th and 14th Amendments (as well as by world history).

farmgirl said...

“A baby's heartbeat can be detected by transvaginal ultrasound as early as 3 to 4 weeks after conception, or 5 to 6 weeks after the first day of the last menstrual period. This early embryonic heartbeat is fast, often about 160-180 beats per minutes, twice as fast as us adults'!“

A Babycenter definition. Smarter than a Supreme Court Justice, in my view. Why not just go w/this definition of life- as opposed to when pain is felt.

I’m angry today… sorry.

Gahrie said...

It’s clear in a statute but what would the constitutional doctrine be? The Court can’t pick 15 weeks as constitutional law. That would just be arbitrary.

Now provide a derivation of the Constitutional right to privacy that is not arbitrary.

The Godfather said...

The 14th Amendment did not declare that the federal courts would have the last word as to all human rights in the USA. Go ahead, read it; I'll wait.

If the SuperCourt were to confess error with respect to Roe and Casey (ain't gonna happen), it would just mean that the States would have the power to decide about abortion -- as they decide about many important things in our lives. You might not be able to get an abortion in Texas, but you could get one nearby. Why must we distort our Constitutional system for the convenience of pregnant women?

Gahrie said...

The 14th Amendment did not declare that the federal courts would have the last word as to all human rights in the USA. Go ahead, read it; I'll wait.

It's almost ironic that a Constitutional Amendment that was written to correct a horrendous Supreme Court decision is now being horribly abused by the Supreme Court to justify judicial legislating.

Michelle Dulak Thomson said...

Mark,

And what factual are we talking about with "capable of meaningful life outside the womb"? What the hell does "meaningful" mean?

Oh, it means "bright kid with a chance for Harvard." As in, not Down Syndrome. Or otherwise afflicted with mental retardation. Because a child who (in the words of George Will) will never read New York Times editorials isn't "meaningfully" alive. Not really.

This stuff does seriously make me sick. Sorry.

Uncle Don said...

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

I wonder if the American Bar Association and 236 members of Congress considered that Americans had come to rely on access to slavery for at least 50 years to structure their lives?