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No. 19-1392

IN THE

Supreme Court of the United States

————

THOMAS E. DOBBS, M.D., M.P.H., STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.,

Respondents.

————

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

————

BRIEF FOR PETITIONERS

————

LYNN FITCH Attorney General

WHITNEY H. LIPSCOMB Deputy Attorney General

SCOTT G. STEWART Solicitor General

Counsel of Record

JUSTIN L. MATHENY Deputy Solicitor General WILSON MINOR

Special Assistant

Attorney General MISSISSIPPI ATTORNEY GENERAL’S OFFICE

P.O. Box 220

Jackson, MS 39205-0220 [email protected] (601) 359-3680

Counsel for Petitioners

QUESTION PRESENTED

Whether all pre-viability prohibitions on elective abortions are unconstitutional.

PARTIES TO THE PROCEEDING

Petitioners are Thomas E. Dobbs, M.D., M.P.H., in his official capacity as State Health Officer of the Mis- sissippi Department of Health, and Kenneth Cleve- land, M.D., in his official capacity as Executive Direc- tor of the Mississippi State Board of Medical Licen- sure.

Respondents are Jackson Women’s Health Organ- ization, on behalf of itself and its patients, and Sa- cheen Carr-Ellis, M.D., M.P.H., on behalf of herself and her patients.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING........................... ii

TABLE OF AUTHORITIES .......................................v

INTRODUCTION .......................................................1

OPINIONS BELOW....................................................5

JURISDICTION ..........................................................6

CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED.....................................................6

STATEMENT ..............................................................6 SUMMARY OF ARGUMENT...................................10 ARGUMENT .............................................................11

I. This Court Should Hold That A Pre-Viability Prohibition On Elective Abortions Is Constitu- tional Where, As Here, A Rational Basis Supports The Prohibition .................................11

A. The Constitution Does Not Protect A Right To Abortion Or Limit The States’ Authority To Restrict Abortion .........................................12

B. This Court Should Overrule Its Precedents Subjecting Abortion Restrictions To Heightened Scrutiny....................................14

1. This Court’s Abortion Precedents Are Egregiously Wrong .................................14

Page

2. This Court’s Abortion Precedents Are Hopelessly Unworkable..........................19

3. This Court’s Abortion Precedents Have Inflicted Severe Damage ........................23

4. Legal And Factual Progress Have Overtaken This Court’s Abortion Precedents ..............................................28

5. Reliance Interests Do Not Support Retaining This Court’s Abortion Prece- dents........................................................31

C. This Court Should Conclude That The Act Satisfies Rational-Basis Review And So Is Constitutional ..............................................36

II. At Minimum This Court Should Hold That Viability Is Not A Barrier To Prohibiting Elective Abortions And Should Reject The Judgment Below .................................................................38

A. This Court Should Reject Viability As A Barrier To Prohibiting Elective Abortions.....................................................38

B. This Court Should Reject The Judgment Below...........................................................45

CONCLUSION ..........................................................48

TABLE OF AUTHORITIES

Page(s)

Cases

Beal v. Doe,

432 U.S. 438 (1977)..............................................26

Box v. Planned Parenthood of

Indiana & Kentucky, Inc.,

139 S. Ct. 1780 (2019)..........................................38

Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263 (1993)..............................................18

Brown v. Board of Education,

347 U.S. 483 (1954)..............................................34

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)..............................................30

Citizens United v. FEC,

558 U.S. 310 (2010)........................................36, 45

City of Akron v. Akron Center for

Reproductive Health, Inc.,

462 U.S. 416 (1983)..............................2, 22, 43, 44

Collins v. Youngblood,

497 U.S. 37 (1990)................................................18

Crawford v. Washington,

541 U.S. 36 (2004)................................................18

Dickerson v. United States,

530 U.S. 428 (2000)..............................................24

Edwards v. Beck,

786 F.3d 1113 (8th Cir. 2015)..............................43

Garcia v. San Antonio Metropolitan

Transit Authority,

469 U.S. 528 (1985)....................................3, 20, 23

Gonzales v. Carhart,

550 U.S. 124 (2007)....17, 25, 30, 31, 37, 42, 44, 48

Griswold v. Connecticut,

381 U.S. 479 (1965)........................................15, 16

Harris v. McRae,

448 U.S. 297 (1980)..............................2, 16, 28, 38

Janus v. AFSCME,

138 S. Ct. 2448 (2018)....................4, 17, 28, 32, 33

June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020)

......................................2, 19, 20, 21, 22, 25, 32, 47

Knick v. Township of Scott,

139 S. Ct. 2162 (2019)..............................14, 18, 31

Lawrence v. Texas,

539 U.S. 558 (2003)..............................................17

Lochner v. New York,

198 U.S. 45 (1905)................................................36

Maher v. Roe,

432 U.S. 464 (1977)..............................................21

Maryland v. King,

567 U.S. 1301 (2012)............................................27

McCorvey v. Hill,

385 F.3d 846 (5th Cir. 2004)..........................29, 30

MKB Mgmt. Corp. v. Stenehjem,

795 F.3d 768 (8th Cir. 2015)..............30, 42, 43, 44

vii

556 U.S. 778 (2009)..............................................19

Montejo v. Louisiana, Obergefell v. Hodges,

576 U.S. 644 (2015)........................................13, 17

Payne v. Tennessee,

501 U.S. 808 (1991)................19, 23, 31, 32, 33, 34

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)..........................................20, 25

Planned Parenthood of Indiana &

Kentucky, Inc. v. Box,

991 F.3d 740 (7th Cir. 2021)................................33

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

505 U.S. 833 (1992)......................................passim

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021)................................23

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)........................14, 18, 23, 31

Roe v. Wade,

410 U.S. 113 (1973)......................................passim

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996)................................................31

Stenberg v. Carhart,

530 U.S. 914 (2000)..............................................24

Thornburgh v. American College of

Obstetricians & Gynecologists,

476 U.S. 747 (1986)........3, 4, 17, 21, 25, 26, 33, 41

United States v. Richardson,

418 U.S. 166 (1974)..............................................27

viii

521 U.S. 793 (1997)..............................................18

Vacco v. Quill, Vasquez v. Hillery,

474 U.S. 254 (1986)..............................................27 Washington v. Glucksberg,

521 U.S. 702 (1997)......................................passim Webster v. Reproductive Health Services,

492 U.S. 490 (1989)............................25, 42, 44, 48

West Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937)..............................................31

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016)....................................19, 25

Williamson v. Lee Optical Co.,

348 U.S. 483 (1955)..............................................42

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015)..............................................46

Constitutional Provisions

U.S. Const. art. I, § 10...............................................12 U.S. Const. amend. I .................................................15 U.S. Const. amend. IV ..............................................15 U.S. Const. amend. X......................................6, 13, 23 U.S. Const. amend. XIV, § 1 ............................. passim

Statutes

26 U.S.C. § 21............................................................35 28 U.S.C. § 1254 ..........................................................6 29 U.S.C. § 2612 ........................................................35

42 U.S.C. § 2000e ......................................................35 Cal. Health & Safety Code § 123460 et seq. .............36 Idaho Code § 18-622..................................................36 Ill. Comp. Stat., ch. 775 § 55/1-1 et seq.....................36 Miss. Code Ann. § 41-41-45 ......................................36 Miss. Code Ann. § 41-41-191 ............................passim N.Y. Pub. Health Law § 2599aa ...............................36 N.Y. Pub. Health Law § 2599bb ...............................36

Other Authorities

CDC, Abortion Surveillance—

Findings and Reports (Nov. 25, 2020).................48

CDC, Birth Control Methods (Aug. 13, 2020) ......... 30

Center for Reproductive Rights,

The World’s Abortion Laws (2021)......................31

Children’s Bureau, HHS,

Infant Safe Haven Laws (2016) ..........................29

John Hart Ely, The Wages of Crying Wolf:

A Comment on Roe v. Wade,

82 Yale L.J. 920 (1973) ........................................40

Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,

63 N.C. L. Rev. 375 (1985).....................................3

H.J. Res. 427, 93d Cong.,

119 Cong. Rec. 7569 (1973) .................................33

Dahlia Lithwick, Foreword: Roe v. Wade at Forty,

74 Ohio St. L.J. 5 (2013)......................................24

Rosalind Pollack Petchesky, Abortion and Woman’s Choice (rev. ed. 1990)...........................................35

A. Raymond Randolph, Before Roe v. Wade:

Judge Friendly’s Draft Abortion Opinion,

29 Harv. J.L. & Pub. Pol’y 1035 (2006).........24, 26

S.J. Res. 3, 98th Cong.,

129 Cong. Rec. 671 (1983) ...................................33

Laurie Sobel et al., The Future of Contraceptive Coverage (Kaiser Family Foundation,

Issue Brief, Jan. 2017)........................................ 29

Aparna Sundaram et al., Contraceptive Failure

in the United States: Estimates from the 2006-2010 National Survey of Family Growth, 49 Persps. on Sexual & Reprod. Health 7 (2017)

..............................................................................29

James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes

and the Fourteenth Amendment,

17 St. Mary’s J.L. 29 (1985)...........................12, 39

INTRODUCTION

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

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

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

Roe and Casey are egregiously wrong. The conclu- sion that abortion is a constitutional right has no

basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting as- pects of privacy under the Due Process Clause. 410 U.S. at 152-53. But Roe broke from prior cases by in- voking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. See 505 U.S. at 846-53. And Casey’s de- fense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” id. at 851, 853—fails. Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right in- volves, as abortion does, “the purposeful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980). So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.

Roe and Casey have proven hopelessly unworka- ble. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context. A court cannot “objectively ... weigh[ ]” or “meaning- ful[ly] ... compare” the “imponderable values” in- volved. June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103, 2136 (2020) (Roberts, C.J., concurring in judgment). Heightened scrutiny—be it the undue- burden standard or another heightened standard—is also “a completely unworkable method of accommo- dating” the state interests “in the abortion context.” City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 454 (1983) (O’Connor, J.,

dissenting). While crediting States with important in- terests, Roe and Casey impede States from advancing them. Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests. That is flawed. If a State’s interests are “compelling” enough after via- bility to support a prohibition, they are “equally com- pelling before” then. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting).

Roe and Casey have inflicted significant damage. Those cases “disserve[ ] principles of democratic self- governance,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985), by “plac[ing]” one of the most important, contested policy issues of our time largely “outside the arena of public debate and legislative action,” Washington v. Glucks- berg, 521 U.S. 702, 720 (1997). Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse. See, e.g., Ruth Bader Gins- burg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385-86 (1985) (“Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”). Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve. And Roe and Casey have produced a jurisprudence that is at war with the demand that this Court act based on neutral principles. Abortion caselaw is pervaded by special rules—the undue-bur- den standard, the large-fraction test, and more—that feed the perception that “when it comes to abortion” this Court does not “evenhandedly apply[ ]” the law.

Thornburgh, 476 U.S. at 814 (O’Connor, J., dissent- ing). Casey retained Roe’s central holding largely on the view that overruling it would hurt this Court’s le- gitimacy. 505 U.S. at 864-69. The last 30 years show the opposite. Roe and Casey are unprincipled deci- sions that have damaged the democratic process, poi- soned our national discourse, plagued the law—and, in doing so, harmed this Court.

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

Reliance interests do not support retaining Roe and Casey. Almost all of this Court’s abortion cases have been fractured, with many Justices questioning Roe’s central premises. The people have long been “on notice” of “misgivings” on this Court about Roe and Casey. Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018). And where, as with the undue-burden stand- ard, precedents “do[ ] not provide a clear or easily ap- plicable standard,” “arguments for reliance based on [their] clarity are misplaced.” Ibid. (internal quota- tion marks omitted). That abortion has remained a

wholly unsettled policy issue also undermines reli- ance on Roe and Casey. Casey maintained that socie- tal reliance interests favored retaining Roe. 505 U.S. at 855-56. Developments since Roe tell a different story. Innumerable women and mothers have reached the highest echelons of economic and social life inde- pendent of the right endorsed in those cases. Sweep- ing policy advances now promote women’s full pursuit of both career and family. And many States have al- ready accounted for Roe and Casey’s overruling.

Overruling Roe and Casey makes resolution of this case straightforward. The Mississippi law here pro- hibits abortions after 15 weeks’ gestation, with excep- tions for medical emergency or severe fetal abnormal- ity. That law rationally furthers valid interests in pro- tecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s height- ened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state pro- hibitions on abortion and uphold Mississippi’s law. The court of appeals’ judgment affirming a permanent injunction of the State’s law should be reversed.

OPINIONS BELOW

The court of appeals’ opinion (Petition Appendix (App.) 1a-37a) is reported at 945 F.3d 265. The court of appeals’ order denying rehearing en banc (App.38a- 39a) is unreported. The district court’s decision grant- ing summary judgment to respondents (App.40a-55a) is reported at 349 F. Supp. 3d 536.

JURISDICTION

The court of appeals’ judgment was entered on De- cember 13, 2019. The court of appeals denied rehear- ing en banc on January 17, 2020. On March 19, 2020, Justice Alito extended the time to file a petition for a writ of certiorari to and including June 15, 2020. The petition was filed on June 15, 2020. The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Tenth Amendment to the U.S. Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The Fourteenth Amendment’s Due Process Clause provides: “nor shall any State deprive any person of life, liberty, or prop- erty, without due process of law.” U.S. Const. amend. XIV, § 1.

Mississippi’s Gestational Age Act, Miss. Code Ann. § 41-41-191, is reproduced at App.65a-74a.

STATEMENT

1. Enacted in 2018, Mississippi’s Gestational Age Act prohibits abortion after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal ab- normality. App.70a; see App.65a-74a.

The Act sets forth several findings. To start, the Legislature found that the United States is one of few countries that permit elective abortions after 20 weeks’ gestation. App.65a. After 12 weeks’ gestation, 75% of all nations “do not permit abortion” “except (in

most instances) to save the life and to preserve the

physical health of the mother.” Ibid.

Next, the Legislature made findings about fetal development. App.65a-66a. At 5-6 weeks’ gestation, “an unborn human being’s heart begins beating.” App.65a. At about 8 weeks’ gestation, he or she “be- gins to move about in the womb.” Ibid. At 9 weeks, “all basic physiological functions are present,” as are teeth, eyes, and external genitalia. App.66a. At 10 weeks, “vital organs begin to function” and “[h]air, fin- gernails, and toenails ... begin to form.” Ibid. At 11 weeks, an unborn human being’s diaphragm is devel- oping, “and he or she may even hiccup.” Ibid. At 12 weeks’ gestation, he or she “can open and close ... fin- gers,” “starts to make sucking motions,” and “senses stimulation from the world outside the womb.” Ibid. He or she “has taken on the human form in all rele- vant respects.” Ibid. (internal quotation marks omit- ted).

The Legislature then identified several state inter- ests concerning abortion. First, the State “‘has an in- terest in protecting the life of the unborn.’” App.66a (quoting Planned Parenthood of Southeastern Penn- sylvania v. Casey, 505 U.S. 833, 873 (1992) (plurality opinion)). Second, the State has interests in protect- ing the medical profession. App.66a-67a. Most abor- tion procedures performed after 15 weeks’ gestation, the Legislature found, are dilation-and-evacuation procedures that “involve the use of surgical instru- ments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb.” App.66a. The Legislature found that this “is a bar- baric practice” when performed for nontherapeutic reasons and is “demeaning to the medical profession.” App.66a-67a. And third, the State has “legitimate

interests from the outset of pregnancy in protecting the health of women.” App.68a. Dilation-and-evacua- tion abortions risk “[m]edical complications.” App.67a. These include: “pelvic infection; incomplete abortions (retained tissue); blood clots; heavy bleed- ing or hemorrhage; laceration, tear, or other injury to the cervix; puncture, laceration, tear, or other injury to the uterus; injury to the bowel or bladder; depres- sion; anxiety; substance abuse; and other emotional or psychological problems.” Ibid. Abortion also carries “significant physical and psychological risks” to women that “increase with gestational age.” Ibid. Af- ter 8 weeks’ gestation, abortion’s risks “escalate expo- nentially.” Ibid. In abortions performed after 15 weeks’ gestation, “there is a higher risk of requiring a hysterectomy, other reparative surgery, or blood transfusion.” App.67a-68a.

In light of those findings, the Act provides: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or know- ingly perform, induce, or attempt to perform or induce an abortion” when “the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” App.70a. The Act also generally requires (with the same exceptions) a physician to “determin[e]” “probable gestational age” before any abortion and to file a report (omitting a pa- tient’s identifying information) with the State Depart- ment of Health addressing abortions performed after 15 weeks’ gestation. App.70a-71a. The Act permits sanctions, civil penalties, and additional enforcement. App.71a-72a.

2. Respondents Jackson Women’s Health Organi- zation and its medical director filed this lawsuit chal- lenging the Act’s legality. App.63a. They allege that

they provide abortions up to 16 weeks’ gestation and that the organization is the State’s sole abortion clinic. D. Ct. Dkt. 23 at 7 ¶ 16, 20 ¶ 51.

The district court issued a TRO blocking the Act. App.62a-64a. It limited discovery to “whether the 15- week mark is before or after viability.” App.60a. The court reasoned that the Act functions as a prohibition on abortions after 15 weeks’ gestation, that under Roe and Casey a State “cannot ‘support a prohibition of abortion’” before viability regardless of “any interests” the State may have, and that the Act’s lawfulness thus “hinges on a single question: whether the 15- week mark is before or after viability.” App.59a, 60a (quoting Casey, 505 U.S. at 846). The court denied the State discovery on matters such as pre-viability fetal pain. App.60a-61a; App.56a-57a; see App.75a-100a (declaration provided as offer of proof on fetal pain).

After discovery, the court granted summary judg- ment to respondents and permanently enjoined the Act. App.40a-55a. The court reasoned: Supreme Court precedent establishes that “States may not ban abor- tions prior to viability.” App.45a; see App.42a-44a. The Act is a “ban” on abortions at or before 15 weeks’ gestation. App.55a; see App.48a. And 15 weeks’ gesta- tion “is prior to viability.” App.45a; see App.44a-45a, 53a. So “the Act is unlawful.” App.45a. The court de- clined to assess whether the State’s interests could justify the Act. App.47a-48a. The court also stated: “the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting” (App.46a n.22); the Act “is closer to the old Mississippi—the Missis- sippi bent on controlling women and minorities” (ibid.); and “[t]he Mississippi Legislature has a his- tory of disregarding the constitutional rights of its cit- izens” (App.50a n.40).

3. The Fifth Circuit affirmed. App.1a-37a. As rele- vant here, the court of appeals explained that under Casey “no state interest can justify a pre-viability abortion ban,” that 15 weeks’ gestation is before via- bility, and that by prohibiting abortion after 15 weeks’ gestation the Act “undisputedly prevents the abor- tions of some non-viable fetuses.” App.8a, 11a-12a. The court rejected the argument that the district court should have weighed the State’s interests in as- sessing the Act’s validity. App.9a-13a. Because the Act “is a prohibition on pre-viability abortion,” App.12a, the court explained, it is unconstitutional under Supreme Court precedent, App.13a. Judge Ho concurred in the judgment. He stated: “Nothing in the text or original understanding of the Constitution es- tablishes a right to an abortion.” App.20a. But he be- lieved that “[a] good faith reading” of Supreme Court precedent required affirmance. Ibid.; see App.22a- 29a, 37a. He added, however, that the district court’s opinion “displays an alarming disrespect for ... mil- lions of Americans.” App.21a. The Fifth Circuit de- nied rehearing. App.38a-39a.

4. This Court granted certiorari, limited to the first question presented by the State’s petition: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Pet. i; see JA60.

SUMMARY OF ARGUMENT

I. This Court should hold that a State may prohibit elective abortions where, as here, a rational basis sup- ports doing so. The Constitution does not protect a right to abortion or limit States’ authority to restrict it. On a sound view of the Constitution, a state law restricting abortion is valid if it satisfies the rational- basis review that applies to all laws. Rational-basis

review is not applied to abortion laws because this Court’s precedents subject such laws to heightened scrutiny. This Court should overrule those prece- dents. Those precedents are grievously wrong, un- workable, damaging, and outmoded. Reliance inter- ests do not support retaining them. This Court should conclude that the Act rests on a rational basis and so is constitutional. The Act reasonably furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. The judgment below should be reversed.

II. At minimum, this Court should reject viability as a barrier to prohibiting elective abortions and re- ject the judgment below. A viability rule has no con- stitutional basis, it harms state interests, and it pro- duces other severe negative consequences.

ARGUMENT

I. This Court Should Hold That A Pre-Viability Prohibition On Elective Abortions Is Consti- tutional Where, As Here, A Rational Basis Supports The Prohibition.

The Constitution does not protect a right to abor- tion. It does not place limits—beyond those that apply to all laws—on state authority to restrict elective abortions. Under our Constitution, then, a State may prohibit elective abortions if a rational basis supports doing so. The question presented arises only because this Court’s precedents hold that abortion restrictions are subject to heightened scrutiny. The lower courts could not do anything about that, but this Court can. This Court should overrule those precedents, uphold the Act, and reverse the judgment below.

A. The Constitution Does Not Protect A Right To Abortion Or Limit The States’ Authority To Restrict Abortion.

The Constitution does not protect a right to abor- tion. The Constitution’s text says nothing about abor- tion. Nothing in the Constitution’s structure implies a right to abortion or prohibits States from restricting it. See, e.g., U.S. Const. art. I, § 10 (denying States several powers but not the power to restrict abortion).

A right to abortion is not a “liberty” that enjoys substantive protection under the Due Process Clause. U.S. Const. amend. XIV, § 1. That Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would ex- ist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal citations and quotation marks omitted). History does not show a deeply rooted right to abortion. Rather, history shows a long tradition—up to, at, and long after ratification of the Fourteenth Amendment—of States restricting abortion. At the end of 1849, 18 of the 30 States had statutes restricting abortion; by the end of 1864, 27 of the 36 States had them; and, at the end of 1868, the year the Fourteenth Amendment was ratified, 30 of the 37 States had such laws, as did 6 Territories. James S. Witherspoon, Reexamining Roe: Nine- teenth-Century Abortion Statutes and the Four- teenth Amendment, 17 St. Mary’s J.L. 29, 33 (1985). At the Fourteenth Amendment’s ratification, moreo- ver, many States restricted abortion broadly (and without regard to viability). See, e.g., id. at 34 (placing at 27 the number of States that, at the end of 1868, had statutes that “prohibited attempts to induce

abortion before quickening”). The public would have understood that, consistent with the Fourteenth Amendment, States could restrict abortion to pursue legitimate interests and could do so throughout preg- nancy. And when Roe v. Wade, 410 U.S. 113 (1973), was decided, most States had “restrict[ed] ... abor- tions for at least a century.” Id. at 174 (Rehnquist, J., dissenting); see id. at 175 n.1 (listing 36 States’ or Ter- ritories’ laws restricting abortion), 176 n.2 (listing 21 States whose abortion laws in 1868 were in effect 100 years later).

Nor can a right to abortion be justified under Ober- gefell v. Hodges, 576 U.S. 644 (2015), which recog- nized a fundamental right to marry. Obergefell ap- plied the understanding that when a right “is funda- mental as a matter of history and tradition”—like marriage—then a State must have “a sufficient justi- fication for excluding the relevant class” from exercis- ing it. Id. at 671. That understanding has no rele- vance here, where the question is not “who [may] ex- ercise[ ]” a fundamental right to abortion but whether the Constitution protects such a right at all. Ibid.

Because nothing in text, structure, history, or tra- dition makes abortion a fundamental right or denies States the power to restrict it, that “power[ ]” is “re- served to the States.” U.S. Const. amend X. Judicial review of abortion restrictions should be limited to the rational-basis review that applies to all laws. Glucks- berg, 521 U.S. at 728. A state law restricting abortion is constitutional if it is “rationally related to legiti- mate government interests.” Ibid.

B. This Court Should Overrule Its Prece- dents Subjecting Abortion Restrictions To Heightened Scrutiny.

This Court’s abortion precedents depart from a sound understanding of the Constitution. In Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), this Court held that abortion is a right spe- cially protected by the Fourteenth Amendment, and so laws restricting it must withstand heightened scru- tiny. Casey described Roe’s “essential holding,” which the lower courts thought dispositive here, to include a rule that, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abor- tion.” 505 U.S. at 846; see App.6a-13a; App.43a, 47a- 48a.

This Court should overrule Roe and Casey. Stare decisis is “at its weakest” with constitutional rulings, Knick v. Township of Scott, 139 S. Ct. 2162, 2177 (2019), and the case for overruling here is overwhelm- ing. Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. They have inflicted profound damage. Decades of progress have over- taken them. Reliance interests do not support retain- ing them. And nothing but a full break from those cases can stem the harms they have caused.

1. This Court’s Abortion Precedents Are Egregiously Wrong.

Roe and Casey are egregiously wrong. See Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (Ka- vanaugh, J., concurring in part) (whether a precedent is “grievously or egregiously wrong” is a lead stare de- cisis consideration). As just explained, their

conclusion that abortion is a constitutional right trig- gering heightened scrutiny, Casey, 505 U.S. at 869-79 (plurality opinion); Roe, 410 U.S. at 155-56, has no ba- sis in text or structure, and history and tradition show that abortion is not a right protected by the Due Pro- cess Clause. Supra Part I-A.

Roe grounded a right to abortion on a constitu- tional “right of privacy” recognized in cases preceding it. 410 U.S. at 152-53. This was profoundly erroneous. The Constitution does not protect a general “right of privacy.” It protects aspects of privacy through spe- cific textual prohibitions on government action (e.g., U.S. Const. amend. I, IV) or structural features that limit government power (such as federalism and the separation of powers). No textual prohibition or struc- tural feature guarantees a right to abortion. And al- though this Court’s cases provide that the “liberty” protected by the Due Process Clause may sometimes embrace certain unenumerated privacy interests, those interests would need grounding in history and tradition—which a right to abortion lacks. See Glucksberg, 521 U.S. at 723-24 (the substantive-due- process question is not whether an interest is “con- sistent with this Court’s substantive-due-process line of cases,” but whether it is supported by “this Nation’s history and practice”). Consistent with these points, Griswold v. Connecticut, 381 U.S. 479 (1965), on which Roe relied and which applied the most expan- sive approach to the right of privacy among pre-Roe cases, finds grounding in text and tradition. In inval- idating a state law regulating the use of contracep- tives, Griswold vindicated the textually and histori- cally grounded Fourth Amendment protection against government invasion of the home—which would likely have been necessary to prosecute under the

statute. E.g., id. at 480, 484-85. Griswold also vindi- cated our history and tradition of safeguarding “the marriage relationship”—which raises privacy inter- ests “older than the Bill of Rights.” Id. at 486. Roe de- parted from prior cases by invoking a sweeping gen- eral “right of privacy” unmoored from constitutional text, structure, history, and tradition.

Casey did not embrace Roe’s right-of-privacy rea- soning, and instead grounded Roe’s holding on an “ex- plication of individual liberty” that focused on the con- stitutional protection that this Court’s cases have af- forded “to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” 505 U.S. at 851, 853; see id. at 846-53. This effort shares the flaws of Roe’s reason- ing. The Constitution does protect certain liberty in- terests in these categories—just as it protects certain privacy interests. But those interests need grounding in text, structure, history, or tradition. And although certain liberty interests in these categories can claim the backing of history and tradition, a right to abor- tion cannot. Again, history shows that when the Four- teenth Amendment was ratified—and for a century thereafter—the public would have understood that it left States free to legislate comprehensively on abor- tion. Supra Part I-A.

Beyond all of these points is another that funda- mentally distinguishes abortion from any privacy or liberty interest that this Court has ever recognized. None of the privacy or liberty interests embraced in this Court’s cases involves, as abortion does, “the pur- poseful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980). Abortion is thus “dif- ferent in kind from” other interests “that the Court has protected under the rubric of personal or family

privacy and autonomy.” Thornburgh v. American Col- lege of Obstetricians & Gynecologists, 476 U.S. 747, 792 (1986) (White, J., dissenting). Roe itself acknowl- edged that “[t]he pregnant woman cannot be isolated in her privacy.” 410 U.S. at 159. Casey too recognized that abortion is “a unique act.” 505 U.S. at 852. But the Court in both cases failed to confront what that means—that a right to abortion cannot be justified by a right of privacy or a right to make important per- sonal decisions. Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 (“[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”); Law- rence v. Texas, 539 U.S. 558, 578 (2003) (similar). So Roe’s departure from the Constitution and past cases—and Casey’s stare-decisis-focused adherence to that departure, see 505 U.S. at 853; infra Part I-B— fail to account for the material difference between a right to abortion and interests recognized in other cases.

These features—that a right to abortion has no ba- sis in constitutional text, structure, history, or tradi- tion, and that such a right is fundamentally different from any right recognized by this Court—show that Roe and Casey were “poorly reasoned.” Janus v. AF- SCME, 138 S. Ct. 2448, 2479 (2018). Abortion re- strictions should be subject only to the rational-basis review that applies to every law.

Some have attempted to defend a right to abortion under equal-protection principles. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dis- senting) (“[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some

generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”). Of course, the “fact that the justification” for Roe “continues to evolve” itself “undermin[es] the force of stare decisis.” Knick, 139 S. Ct. at 2178. And this reconstruction of Roe lacks merit. This Court’s cases “establish conclu- sively” that “the disfavoring of abortion ... is not ipso facto sex discrimination.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 272-73 (1993). Abortion restrictions like the one here do not “treat anyone dif- ferently from anyone else or draw any distinction be- tween persons.” Vacco v. Quill, 521 U.S. 793, 800 (1997) (rejecting equal-protection challenge to prohi- bition on assisting suicide). And far from evincing an inherently discriminatory purpose, “there are com- mon and respectable reasons for opposing [abortion], other than hatred of, or condescension toward (or in- deed any view at all concerning), women as a class— as is evident from the fact that men and women are on both sides of the issue.” Bray, 506 U.S. at 270. In- deed, the Act here promotes women’s health, and it protects unborn girls and boys equally. See App.66a- 68a, 70a. Attempts to re-ground Roe on equal-protec- tion footing fail.

Roe and Casey are, in sum, irreconcilable with con- stitutional text and “historical meaning”—which pro- vides compelling grounds to overrule them. Ramos, 140 S. Ct. at 1405; see Crawford v. Washington, 541 U.S. 36, 42, 68-69 (2004) (overruling where precedent “stray[ed] from the original meaning”); Collins v. Youngblood, 497 U.S. 37, 50 (1990) (overruling where precedent “depart[ed] from” original meaning).

2. This Court’s Abortion Precedents Are Hopelessly Unworkable.

This Court’s abortion jurisprudence has proved “unworkable.” Montejo v. Louisiana, 556 U.S. 778, 792 (2009); see, e.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991) (this Court “has never felt constrained to follow precedent” that has proved “unworkable”).

First, heightened scrutiny of abortion restrictions has not promoted administrability, clarity, or predict- ability—core features of a workable legal standard. See, e.g., Payne, 501 U.S. at 827 (stare decisis aims to “promote[ ] the evenhanded, predictable, and con- sistent development of legal principles”). Thirty years under Casey’s undue-burden standard shows this. There is no objective way to decide whether a burden is “undue.” Casey, 505 U.S. at 877 (plurality opinion). This Court accordingly divides deeply in case after case not just over what result Casey requires, see, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), but also over what Casey even means. Com- pare, e.g., June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103, 2120-32 (2020) (plurality opinion) (finding undue burden based on one view of Casey), with id. at 2135-42 (Roberts, C.J., concurring in judgment) (find- ing undue burden despite a different view of Casey), and with id. at 2154-65 (Alito, J., dissenting) (reject- ing finding of undue burden and voting to remand for trial, on a view of Casey different from the plurality’s). And this administrability problem will plague any heightened-scrutiny regime for reviewing abortion re- strictions. Because the Constitution does not protect a right to abortion in the first place, it provides no guidance on how to gauge or balance the interests in this context. The “imponderable values” here are ones that a court cannot “objectively ... weigh[]” or

“meaningful[ly] ... compare.” Id. at 2136 (Roberts, C.J., concurring in judgment).

This Court has overruled precedent in circum- stances like these. In Garcia v. San Antonio Metropol- itan Transit Authority, 469 U.S. 528 (1985), this Court overruled a federalism precedent that required courts to examine whether a governmental function is “traditional, integral, or necessary.” Id. at 546 (inter- nal quotation marks omitted). Such a constitutionally unmoored inquiry, this Court explained, “inevitably invites an unelected federal judiciary to make deci- sions about which state policies it favors and which ones it dislikes.” Ibid. The same is true for the inquiry whether an abortion restriction satisfies a heightened standard. Just as the Constitution does not speak to whether a governmental function is “traditional,” it does not speak to whether a burden on abortion is “un- due.” Indeed, soon after Roe it was clear that policing the limitations that an abortion right imposes on state authority would be “a difficult and continuing venture.” Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 92 (1976) (White, J., concur- ring in part and dissenting in part). Experience under Casey shows that that venture cannot produce a workable, administrable, predictable jurisprudence.

Second, heightened scrutiny is an unworkable mechanism for accommodating state interests in the abortion context. Workability extends beyond whether a precedent is administrable and predicta- ble: this Court also asks whether a precedent worka- bly accounts for the interests at stake. See, e.g., Gar- cia, 469 U.S. at 531, 546 (overruling precedent that had sought to serve “federalism principles” where that precedent could not “be faithful to the role of fed- eralism in a democratic society”). Although the

undue-burden standard aimed to better honor States’ interests and allow them greater leeway to legislate on abortion than did strict scrutiny, e.g., Casey, 505 U.S. at 875 (plurality opinion), it has failed at the task—as any heightened-scrutiny standard would fail. The undue-burden standard broadly diminishes a State’s pre-viability interests in protecting unborn life, women’s health, and the medical profession’s in- tegrity. It impedes a State from prohibiting abortion to pursue those interests and forces a State to make an uphill climb even to adopt modest regulations pur- suing them. See also infra Part II-A.

The workable approach to accommodating the competing interests here is to return the matter to “legislators, not judges.” June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring in judgment). Abor- tion policy is as suited to legislative judgment as it is unsuited to judicial refereeing. The question of how the law should treat abortion “is fraught with judg- ments of policy and value over which opinions are sharply divided.” Maher v. Roe, 432 U.S. 464, 479 (1977). Under our Constitution, such issues “are to be resolved by the will of the people.” Thornburgh, 476 U.S. at 796 (White, J., dissenting). That is all the more important when medical and other advances matter so much. Legislatures should be able to re- spond to those advances, which they cannot do in the face of flawed precedents that are anchored to dec- ades-stale views of life and health. See also infra Parts I-B-4, II-A. The task will be hard for legislators and the people too. But the Constitution leaves the task of debate and compromise to them. When im- portant, imponderable values are at stake, and when the Constitution does not take sides on which value prevails, the matter is for legislatures—

“[i]rrespective of the difficulty of the task.” City of Ak- ron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 456 n.4 (1983) (O’Connor, J., dissenting).

Casey maintained that Roe “has in no sense proven unworkable,” “representing as it does a simple limita- tion beyond which a state law is unenforceable.” 505 U.S. at 855 (internal quotation marks omitted). Al- though Roe requires “judicial assessment of state laws” on abortion, Casey stated, “the required deter- minations fall within judicial competence.” Ibid. This is wrong, as the last 30 years make clear. Roe supplied workability only in the sense that, by employing strict scrutiny, it predictably required invalidating nearly any pre-viability state abortion law of substance. Ca- sey recognized that Roe’s disregard for state interests had to be abandoned—which is to say, Casey recog- nized that Roe failed to workably account for state in- terests. See id. at 871-76 (plurality opinion). Casey tried to improve upon Roe by replacing strict scrutiny with the undue-burden standard. But that standard too defeats important state interests rather than ac- counts for them. See also infra Part II-A. And Casey exacerbated the workability problems under Roe. By replacing strict scrutiny with another heightened- scrutiny regime, Casey waved in the administrability problems that have plagued abortion caselaw ever since. Again, last year the five Justices supporting the Court’s judgment in June Medical could not agree on what Casey means, and the five Justices who agreed on what Casey means could not agree on the judg- ment. Roe and Casey are irredeemably unworkable.

3. ThisCourt’sAbortionPrecedentsHave Inflicted Severe Damage.

Roe and Casey have caused “significant negative jurisprudential [and] real-world consequences,” Ra- mos, 140 S. Ct. at 1415 (Kavanaugh, J., concurring in part), and will continue to do so until this Court over- rules them. See also Payne, 501 U.S. at 825-27.

First, this Court’s abortion jurisprudence “dis- serves principles of democratic self-governance.” Gar- cia, 469 U.S. at 547. The Constitution generally leaves to “the States” and “the people” the power to address important policy issues. U.S. Const. amend. X. Yet Roe and Casey block the States and the people from fully protecting unborn life, women’s health, and their professions. As long as those cases stand, the people and their elected representatives can never achieve, through person-to-person engagement and deliberation, any real compromise on the hard issue of abortion. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“By extending constitutional protec- tion to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.”). This Court’s precedents wall off too many options and force people to look to the Judiciary to solve the abortion issue— which, 50 years shows, it cannot do. See Preterm- Cleveland v. McCloud, 994 F.3d 512, 536, 537 (6th Cir. 2021) (Sutton, J., concurring) (“judicial authority over” abortion results in “a warping of democracy and a perceived manipulation of the decision-making pro- cess”).

Second, abortion jurisprudence has harmed the Nation. “The issue of abortion is one of the most con- tentious and controversial in contemporary American

society.” Stenberg v. Carhart, 530 U.S. 914, 947 (2000) (O’Connor, J., concurring). Although Casey sought to “call[ ] the contending sides” to end that controversy, 505 U.S. at 867, the controversy has not abated. Un- like Miranda warnings, for example, a right to abor- tion has not become an “embedded,” manageable part of “our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). Our national discourse re- mains marked by heated, zero-sum disputes about abortion, abortion engulfs confirmation hearings, and “[d]ay after day, week after week, and year after year, regardless of the case being argued and the case being handed down, the issue that brings protesters to the plaza of the Supreme Court building is abortion.” Dahlia Lithwick, Foreword: Roe v. Wade at Forty, 74 Ohio St. L.J. 5, 11 (2013). The national fever on abor- tion can break only when this Court returns abortion policy to the States—where agreement is more com- mon, compromise is often possible, and disagreement can be resolved at the ballot box. E.g., A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1060 (2006) (“The legislature can make choices among these variants, observe the results, and act again as observation may dictate. Experience in one state may benefit others ... .”).

Third, abortion jurisprudence is at war with the constitutional demand that this Court act based on neutral principles of law. This Court’s abortion cases are pervaded by special rules that apply largely or only in the abortion context. This Court applies a spe- cial standard of scrutiny (the undue-burden stand- ard), Casey, 505 U.S. at 876-78 (plurality opinion); it applies a special test for facial constitutional chal- lenges (the large-fraction test), id. at 895; and

ordinary principles of statutory interpretation often “fall[ ] by the wayside” when this Court “confront[s] a statute regulating abortion,” Gonzales, 550 U.S. at 153. Members of this Court have called out many other examples. E.g., Whole Woman’s Health, 136 S. Ct. at 2350-53 (Alito, J., dissenting) (severability); Danforth, 428 U.S. at 100-01 (White, J., concurring in part and dissenting in part) (same); June Medical, 140 S. Ct. at 2171-73 (Gorsuch, J., dissenting) (appel- late review of factual findings); id. at 2173-75 (stand- ing); id. at 2176-78 (prospective injunctive relief); id. at 2178-79 (treatment of factbound prior decisions).

Too many Members of this Court, in too many cases, over too many decades have called out this spe- cial-rules problem to dismiss it. “The permissible scope of abortion regulation is not the only constitu- tional issue on which this Court is divided, but—ex- cept when it comes to abortion—the Court has gener- ally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhand- edly applying uncontroversial legal doctrines to cases that come before it.” Thornburgh, 476 U.S. at 814 (O’Connor, J., dissenting). This all contributes to a perception of the Court that does “damage to the Court’s legitimacy.” Casey, 505 U.S. at 869. The Judi- ciary should not apply “the law of abortion.” Webster v. Reproductive Health Services, 492 U.S. 490, 541 (1989) (Blackmun, J., concurring in part and dissent- ing in part). It should apply the law—in abortion cases as in every other case.

Fourth, abortion jurisprudence has had an “insti- tutionally debilitating effect” on the Judiciary. Thorn- burgh, 476 U.S. at 814 (O’Connor, J., dissenting). The Roe/Casey regime endlessly injects this Court into “a hotly contested moral and political issue.” Id. at 796

(White, J., dissenting). Continued judicial involve- ment here contributes to public perception of this Court as a political branch, cf. Beal v. Doe, 432 U.S. 438, 461 (1977) (Marshall, J., dissenting) (“The [Court’s] abortion decisions are sound law and un- doubtedly good policy.”) (emphasis added), and has subjected this Court to pressure that only political bodies should receive. This flows inevitably from this Court’s taking an “expansive role” on a policy matter that should be left to the political process. Thorn- burgh, 476 U.S. at 814 (O’Connor, J., dissenting); see Randolph, 29 Harv. J.L. & Pub. Pol’y at 1061 (Judge Friendly observed that heightened judicial involve- ment in abortion, “however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920’s and 1930’s”).

Casey retained Roe’s central holding largely on the view that overruling it would hurt this Court’s legiti- macy. 505 U.S. at 864-69. According to Casey, this Court’s legitimacy derives from “substance and per- ception”: the Court must not just make “principled” decisions but must do so “under circumstances in which their principled character is sufficiently plausi- ble to be accepted by the Nation.” Id. at 865-66. The Court thought it could not achieve that in overruling Roe: it lacked (it thought) “the most compelling rea- son” to overrule and so it would look like it was doing so “unnecessarily and under pressure.” Id. at 867.

The last 30 years show that assessment to be wrong. As explained, Roe and Casey are profoundly unprincipled decisions that have damaged the demo- cratic process, poisoned our national discourse, plagued the law, and harmed the perception of this

Court. Retaining those precedents harms this Court’s legitimacy. This Court can thus offer the Nation an overwhelming case for overruling Roe and Casey. And a principled affirmation that the Constitution leaves most issues to the people—and that abortion is such an issue—would be a powerful example to the Nation of this Court’s “commitment to the rule of law.” Id. at 869.

Stare decisis “permits society to presume that bed- rock principles are founded in the law rather than in the proclivities of individuals, and thereby contrib- utes to the integrity of our constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986). For the rea- sons given above, these aims are served by overruling Roe and Casey. And consider one more. Under Roe and Casey the Judiciary mows down state law after state law, year after year, on a critical policy issue. That is dangerously corrosive to our constitutional system. Cf. United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) (recognizing that “repeated and essentially head-on confrontations be- tween the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either,” and that “[t]he public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-re- straint in the utilization of our power to negative the actions of the other branches”). Invalidating a state law should always be a grave matter. See, e.g., Mary- land v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (“Any time a State is enjoined by a court from effectuating statutes enacted by represent- atives of its people, it suffers a form of irreparable in- jury.”) (brackets omitted). If an area of this Court’s

constitutional jurisprudence requires this Court to strike down state law after state law, that jurispru- dence needs a firm constitutional basis. Abortion ju- risprudence has no such basis. The matter should be returned to the States and the people.

4. Legal And Factual Progress Have Overtaken This Court’s Abortion Prec- edents.

Legal and factual developments have “eroded” Roe and Casey’s “underpinnings.” Janus v. AFSCME, 138 S. Ct. 2448, 2482 (2018).

Start with legal developments. First, Roe and Ca- sey are irreconcilable with this Court’s rigorous, now “established method of substantive-due-process anal- ysis.” Glucksberg, 521 U.S. at 720. That analysis fore- closes from substantive-due-process protection inter- ests that, like a right to abortion, are unmoored from (indeed, defeated by) history and tradition. Supra Part I-A. Second, since Roe and Casey this Court has refused to hold in any other context that liberty or pri- vacy interests support a constitutional right to effect “the purposeful termination” of a human life (actual or “potential”). Harris v. McRae, 448 U.S. 297, 325 (1980); see Glucksberg, 521 U.S. at 728 (holding that a right to “assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause”). This reaffirms that the right to abortion is an outlier among this Court’s cases. And third, the special-rules regime applied in abortion cases shows that Roe and Casey represent a stark de- parture from this Court’s general approach of apply- ing neutral rules of law. Supra Part I-B-3.

Now take factual developments. First, modern op- tions regarding and views about childbearing have dulled concerns on which Roe rested. Roe suggested that, without abortion, unwanted children could “force upon” women “a distressful life and future.” 410 U.S. at 153. But numerous laws enacted since Roe— addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life. See, e.g., infra Part I-B-5. And today all 50 States and the District of Columbia have enacted “safe haven” laws, giving women bearing un- wanted children the option of “leaving [the] newborn directly in the care of the state until it can be adopted.” McCorvey v. Hill, 385 F.3d 846, 851 (5th Cir. 2004) (Jones, J., concurring); see, e.g., Children’s Bureau, HHS, Infant Safe Haven Laws 2 (2016), https://perma.cc/ZL5D-9X24.

Second, even if abortion may once have been thought critical as an alternative to contraception, see Casey, 505 U.S. at 856, changed circumstances under- mine that view. Policy can effect dramatic expansions in access to contraceptives. See, e.g., Laurie Sobel et al., The Future of Contraceptive Coverage 4 (Kaiser Family Foundation, Issue Brief, Jan. 2017), https://perma.cc/T7TY-FVTT (“By 2013, most women had no out-of-pocket costs for their contraception, as median expenses for most contraceptive methods, in- cluding the IUD and the pill, dropped to zero.”). And failure rates for all major contraceptive categories have declined since Casey, see, e.g., Aparna Sundaram et al., Contraceptive Failure in the United States: Es- timates from the 2006-2010 National Survey of Fam- ily Growth, 49 Persps. on Sexual & Reprod. Health 7, 11 tbl.2 (2017), with some methods now approaching

zero, see CDC, Birth Control Methods (Aug. 13, 2020), https://perma.cc/6NCC-SDEV. Contraceptive devel- opments undercut any claim that Roe is needed to en- able “women to participate equally in the economic and social life of the Nation” by “facilitat[ing] ... their ability to control their reproductive lives.” Casey, 505 U.S. at 856; see Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 741 (2014) (Ginsburg, J., dissenting) (Casey’s “understanding” applies to broadened access to contraception).

Third, advances in medicine and science have eroded the assumptions of 30—and 50—years ago. Casey recognized that “time has overtaken some of Roe’s factual assumptions,” including about abortion risks and the timing of viability. 505 U.S. at 860. Ca- sey thought that those changes “have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” Ibid. Whatever the truth of that statement in 1992, events have left it behind. Advances in “neonatal and medi- cal science,” McCorvey, 385 F.3d at 852 (Jones, J., con- curring), now show that an unborn child has “taken on ‘the human form’ in all relevant respects” by 12 weeks’ gestation, App.66a (quoting Gonzales v. Car- hart, 550 U.S. 124, 160 (2007)). Knowledge of when the unborn are sensitive “to pain” has progressed con- siderably. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774 (8th Cir. 2015). And while the Roe Court thought there was no “consensus” among those “trained in ... medicine” as to whether “life ... is pre- sent throughout pregnancy,” 410 U.S. at 159, the Court has since acknowledged that “by common un- derstanding and scientific terminology, a fetus is a

living organism while within the womb,” before and after viability, Gonzales, 550 U.S. at 147. Yet Casey and Roe still impede a State from acting on this infor- mation by prohibiting pre-viability abortions.

The United States finds itself in the company of China and North Korea as some of the only countries that permit elective abortions after 20 weeks’ gesta- tion. App.65a; see, e.g., Center for Reproductive Rights, The World’s Abortion Laws (2021), https://perma.cc/8TH8-WEDJ. That is not progress. The time has come to recognize as much.

5. Reliance Interests Do Not Support Re- taining This Court’s Abortion Prece- dents.

No legitimate reliance interests call for retaining Roe and Casey. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991); Ramos v. Louisiana, 140 S. Ct. 1390, 1415 (2020) (Kavanaugh, J., concurring in part) (the reliance inquiry “focuses on the legitimate expecta- tions of those who have reasonably relied on the prec- edent”).

First, abortion jurisprudence’s claim to reliance is undermined by how fractured and unsettled that ju- risprudence has always been. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63-64, 66 (1996) (con- sidering fractured nature of precedent in stare decisis analysis); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 390 (1937) (“the close division by which” a prior decision was reached is a ground for reconsidering that decision). Roe was decided over two “spirited dis- sents challenging” the decision’s “basic underpin- nings.” Payne, 501 U.S. at 828-29; accord Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019)

(overruling a decision that had “come in for repeated criticism over the years from Justices of this Court and many respected commentators”). And in the dec- ades since Roe, this Court’s abortion cases have con- sistently been “decided by the narrowest of margins,” with “Members of the Court” repeatedly “ques- tion[ing]” Roe and later Casey. Payne, 501 U.S. at 828- 30. Casey was itself sharply fractured. It was led by a three-Justice joint opinion that no other Justice joined in full and was issued against four Justices’ votes to overrule Roe. This fracturing persists. Again, just last year in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020), the five Justices sup- porting the Court’s judgment could not agree on why—indeed, those five Justices could not even agree on how to read Casey, the lead precedent to which lower courts must look to decide abortion cases. Com- pare id. at 2120-32 (plurality opinion), with id. at 2135-39 (Roberts, C.J., concurring in judgment).

This fractured, unsettled jurisprudence shows that any reliance on Roe and Casey is not reasonable. To start, it shows that people have long been “on no- tice” of “misgivings” on this Court about Roe and Ca- sey. Janus, 138 S. Ct. at 2484. Next, where, as here, precedent “does not provide a clear or easily applica- ble standard,” “arguments for reliance based on its clarity are misplaced.” Ibid. (internal quotation marks omitted). Roe and Casey do not supply a work- able legal standard to begin with. Supra Part I-B-2. And the fractured, confusion-sowing nature of this Court’s abortion cases exacerbates that problem. In- deed, within months of this Court’s decision in June Medical, the courts of appeals had already divided over whether the Chief Justice’s opinion supplies the controlling legal standard. See Planned Parenthood of

Indiana & Kentucky, Inc. v. Box, 991 F.3d 740, 751-52 (7th Cir. 2021) (declining to treat the Chief Justice’s opinion as controlling and recognizing that two other circuits have held otherwise). Add to all this the Court’s use of special rules in the abortion context: This Court’s cases cannot produce reasonable reliance when “governing legal standards are open to revision in every case.” Thornburgh v. American College of Ob- stetricians & Gynecologists, 476 U.S. 747, 787 (1986) (White, J., dissenting). Roe and Casey thus fail to “promote[ ] the evenhanded, predictable, and con- sistent development of legal principles”—and so can- not “foster[ ] reliance.” Payne, 501 U.S. at 827.

Second, reliance on Roe and Casey is undermined by the reality that abortion has for 50 years continued to be a wholly unsettled policy issue. Roe did not an- nounce a rule that has governed quietly and unques- tioned for decades. Soon after Roe, Congress consid- ered constitutional amendments aimed at overturn- ing it. E.g., H.J. Res. 427, 93d Cong., 119 Cong. Rec. 7569, 7591 (1973); S.J. Res. 3, 98th Cong., 129 Cong. Rec. 671-75 (1983). Many States have enacted laws exploring Roe’s bounds ever since. The legitimacy, limits, and policy responses to this Court’s abortion cases have been contested continuously for five dec- ades. This too saps any claim that reliance interests support Roe and Casey. This Court has overruled precedent even where “[m]ore than 20 States ha[d] statutory schemes built on [it]” and “[t]hose laws un- derpin[ned] thousands of ongoing contracts involving millions of employees.” Janus, 138 S. Ct. at 2487 (Ka- gan, J., dissenting). Overruling Roe and Casey, by contrast, would leave the States with exactly as much authority to protect abortion as they have now.

Third, Roe and Casey do not raise reliance inter- ests in the traditional sense at all. This Court has in- voked reliance interests most strongly where upend- ing a precedent could broadly undercut reasonable ex- pectations that have formed the basis for long-term plans and commitments that cannot readily be un- wound, as “in cases involving property and contract rights.” Payne, 501 U.S. at 828. Casey itself appeared to acknowledge that a judicially announced right to abortion does not call up any traditional form of reli- ance. 505 U.S. at 855-56. Abortion, it said, is “custom- arily ... an unplanned response to ... unplanned activ- ity,” and arguably “reproductive planning could take virtually immediate account of” a change in the law. Id. at 856.

Casey maintained that reliance interests favored retaining Roe because, “for two decades of economic and social developments, people have organized inti- mate relationships and made choices that define their views of themselves and their places in society, in re- liance on the availability of abortion in the event that contraception should fail.” Ibid. But given the many flaws in Roe and Casey, the possibility that contracep- tion might fail is a weak ground for retaining them— particularly given contraceptive advances since Ca- sey. Supra Part I-B-4. Further, this Court is not in a position to gauge such societal reliance. That reality may help explain why some of this Court’s most im- portant—and societally impactful—decisions overrul- ing precedent do not even mention reliance. E.g., Brown v. Board of Education, 347 U.S. 483 (1954).

Casey added: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their re- productive lives.” 505 U.S. at 856. This again is not an

assessment that this Court is in a position to make. And the only authority that Casey cited for this claim says that women’s “growing labor force participation and college attendance” began “long before abortion became legal” and that the “relationship between low- ered fertility among women and their higher labor force participation rates” is “complex and variable” and “not subject to generalization.” Rosalind Pollack Petchesky, Abortion and Woman’s Choice 109, 133 n.7 (rev. ed. 1990). Casey’s assessment would, moreover, be greeted coolly by many women and mothers who have reached the highest echelons of economic and so- cial life independent of the right bestowed on them by seven men in Roe. Many laws (largely post-dating Roe) protect equal opportunity—including prohibi- tions on sex and pregnancy discrimination in employ- ment (e.g., Pregnancy Discrimination Act (1978), see 42 U.S.C. §2000e(k)), guarantees of employment leave for pregnancy and birth (e.g., Family and Medi- cal Leave Act of 1993, see 29 U.S.C. § 2612), and sup- port to offset the costs of childcare for working moth- ers (e.g., child-and-dependent-care tax credit, see 26 U.S.C. § 21). Casey gives no good reason to believe that decades of advances for women rest on Roe, and evidence is to the contrary.

Casey said that the reliance inquiry “counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application.” 505 U.S. at 855. Repudiating the rule of Roe and Casey would not itself bar a single abortion. It would simply let the people resolve the issue them- selves through the democratic process. Indeed, many States have already accounted for Roe and Casey’s overruling: some by statutorily codifying the right en- dorsed in those cases or otherwise providing broad

access to abortion, e.g., Cal. Health & Safety Code § 123460 et seq.; Ill. Comp. Stat., ch. 775 § 55/1-1 et seq.; N.Y. Pub. Health Law §§ 2599-aa, 2599-bb; oth- ers by adopting restrictions that cannot stand under Roe and Casey but would take effect if they were over- ruled, e.g., Idaho Code § 18-622; Miss. Code Ann. § 41- 41-45. Our Constitution “is made for people of funda- mentally differing views.” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). A post-Roe world will honor that foundational feature.

***

Stare decisis’s “greatest purpose is to serve a con- stitutional ideal—the rule of law.” Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concur- ring). Adhering to Roe and Casey “does more to dam- age this constitutional ideal than to advance it.” Ibid. This Court should overrule Roe and Casey.

C. This Court Should Conclude That The Act Satisfies Rational-Basis Review And So Is Constitutional.

Overruling Roe and Casey makes resolving the question presented straightforward: An abortion re- striction is constitutional if it satisfies the same ra- tional-basis review that applies to all laws. Under ra- tional-basis review, a court asks only whether the law at issue is “rationally related to legitimate govern- ment interests.” Washington v. Glucksberg, 521 U.S. 702, 728 (1997). The Act satisfies that standard.

The Act itself identifies three valid state objectives and it rationally relates to each one. First, the State asserted its “interest in protecting the life of the un- born.” App.66a. This Court has endorsed that inter- est. E.g., Casey, 505 U.S. at 846. The Act rationally

relates to that interest by generally prohibiting abor- tion after 15 weeks’ gestation. App.70a. The Legisla- ture could reasonably believe that this would save un- born lives.

Second, the State asserted its interest “in protect- ing the health of women.” App.68a. That interest is legitimate. E.g., Casey, 505 U.S. at 846. The Act iden- tifies several “risks” to women that increase as preg- nancy progresses. App.67a; see ibid. (listing possible medical complications). In abortions performed after 15 weeks’ gestation, the Legislature added, “there is a higher risk of requiring a hysterectomy, other repar- ative surgery, or blood transfusion.” App.67a-68a. By limiting abortion after 15 weeks’ gestation, App.70a, the Legislature could have reasonably believed that it was averting these harms to some women.

Third, the State asserted its interest in protecting the medical profession’s integrity. App.66a-67a. That interest is legitimate. E.g., Gonzales, 550 U.S. at 157. The Act rationally relates to it. The Legislature found that most abortion procedures performed after 15 weeks’ gestation “involve the use of surgical instru- ments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb.” App.66a. The Legislature concluded that this “is a barbaric practice” when performed for nontherapeutic reasons and is “demeaning to the medical profession.” App.66a-67a. The Legislature could reasonably be- lieve that prohibiting abortions after 15 weeks’ gesta- tion would protect the profession by reducing poten- tial exposure to a demeaning, harmful practice.

Any of these interests justifies the Act. It does not matter that another State might weigh these inter- ests differently. Under rational-basis review, “making

an independent appraisal of the competing interests involved” goes “beyond the judicial function.” Harris v. McRae, 448 U.S. 297, 326 (1980). And it does not matter if the Act “is not perfectly tailored to” its “end[s]”—rational-basis review does not require such precision. Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780, 1782 (2019) (per cu- riam); see also Glucksberg, 521 U.S. at 728 n.21 (re- jecting as irrelevant the contention “that Washington could better promote and protect [its interests] through regulation, rather than prohibition”). The Act satisfies rational-basis review, so it is constitutional. The court of appeals’ judgment should be reversed.

II. At Minimum This Court Should Hold That Vi- ability Is Not A Barrier To Prohibiting Elec- tive Abortions And Should Reject The Judg- ment Below.

Even if this Court does not reject heightened scru- tiny for abortion restrictions, it should reject any rule barring a State from prohibiting elective abortions be- fore viability and should reject the judgment below.

A. This Court Should Reject Viability As A Barrier To Prohibiting Elective Abor- tions.

The courts below understood Roe and Casey to erect a bright-line rule that “no state interest can jus- tify a pre-viability abortion ban.” App.8a. Because the Act prohibits some pre-viability abortions, the lower courts reasoned, it is unconstitutional under Roe and Casey—regardless of any interests the State may have. App.8a-13a; App.44a-48a; cf. Casey, 505 U.S. at 879 (plurality opinion) (identifying “the central hold- ing of Roe” as: “a State may not prohibit any woman

from making the ultimate decision to terminate her pregnancy before viability”). Other lower courts have taken the same approach to similar laws.

This Court should reject a rule that a State may not prohibit any elective abortions before viability. Such a rule rests on flawed reasoning that has no con- stitutional or principled basis. It fails to accommodate state interests. It inflicts severe negative conse- quences. It is not well grounded in precedent.

First, a viability rule is baseless. Like a right to abortion itself, a viability rule has no basis in the Con- stitution. Supra Part I-A. Nothing in constitutional text or structure protects a right to an abortion before viability or prevents States from restricting abortion before viability.

Even if the “liberty” secured by the Due Process Clause did protect some right to abortion, nothing in constitutional history or tradition supports tying such a right to viability. History shows that when the Four- teenth Amendment was ratified the American public understood that States could prohibit abortion before viability. By the end of 1868, the year the Fourteenth Amendment was ratified, most States prohibited at- tempts to induce abortion before quickening—which Roe understood to be 6-12 weeks before viability. E.g., James S. Witherspoon, Reexamining Roe: Nine- teenth-Century Abortion Statutes and the Four- teenth Amendment, 17 St. Mary’s J.L. 29, 33-34 (1985) (finding that at the end of 1868, 30 of the 37 States had statutes restricting abortion, and 27 of those 30 States prohibited attempts to induce abor- tion before quickening); Roe, 410 U.S. at 132 (quick- ening usually occurs at 16-18 weeks of pregnancy); id.

at 160 (viability usually occurs at 24-28 weeks of preg- nancy).

This Court’s cases do not provide persuasive sup- port for a viability rule. Roe concluded that the State’s interest in unborn life becomes “compelling” at viabil- ity “because the fetus then presumably has the capa- bility of meaningful life outside the womb.” 410 U.S. at 163. Casey added: viability “is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the inde- pendent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.” 505 U.S. at 870 (plurality opinion). Each explanation boils down to a circular assertion: when an unborn child can live out- side the womb then the State’s interest is compelling because the unborn child can live outside the womb. That explanation “mistake[s] a definition for a syllo- gism” and is linked to nothing in the Constitution. John Hart Ely, The Wages of Crying Wolf: A Com- ment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973). All Casey adds to Roe is to emphasize “the independent existence of the second life.” But that adds no content and fails to explain why (limited) independence mat- ters or should serve as the centerpiece of a constitu- tional framework. Independence is a particularly flawed justification. Even after viability, an unborn life will remain dependent: viability contemplates the ability to live with “artificial aid.” Roe, 410 U.S. at 160. Indeed, well after birth any child will be highly dependent on others for survival. It makes no sense to say that a State has a compelling interest in an un- born girl’s life when she can survive somewhat inde- pendently but not when she needs a little more help.

In explaining why viability has “an element of fair- ness,” Casey said: “In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” 505 U.S. at 870 (plurality opinion). But this provides no basis for a viability line. Innu- merable other points before viability could be deemed to promote fairness just as well. Respondents do not provide abortions after 16 weeks’ gestation—weeks before viability. That undercuts any suggestion that viability is central to fairness. Given the difficult line- drawing that the competing interests call for—and on which the Constitution gives no guidance—only legis- latures can properly decide what is fair in this con- text.

Second, a viability rule disserves the state inter- ests recognized in this Court’s cases. This Court’s cases credit States’ interests in protecting women’s health and unborn life “from the outset of ... preg- nancy,” Casey, 505 U.S. at 846, and “in protecting the integrity and ethics of the medical profession,” Glucksberg, 521 U.S. at 731. But a viability rule hob- bles a State from acting on those interests. No matter the value a State places on unborn life, it may never fully act on that judgment before viability. That is un- sound. A State’s interest, “if compelling after” one point in pregnancy, “is equally compelling before” that point. Thornburgh, 476 U.S. at 795 (White, J., dis- senting). Nor can a State fully protect women. Al- though health risks increase as pregnancy progresses, App.67a, States must, under a viability rule, sur- mount a heightened-scrutiny bar whenever they seek to address pre-viability risks by restricting abortion. This prevents States from providing health benefits and protections that they can provide in other

contexts. Cf. Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (emphasizing that this Court “has given state and federal legislatures wide discretion to pass legis- lation in areas where there is medical and scientific uncertainty”). And a viability rule thwarts the state interest in maintaining the medical profession’s in- tegrity. Williamson v. Lee Optical Co., 348 U.S. 483, 489-91 (1955) (affirming State’s broad power when regulating “members of a profession”). No matter what a State learns—about fetal pain, about when unborn life takes on the human form, about women’s health, about what effect performing abortions has on doctors—the State cannot fully act on that knowledge before viability.

Third, a viability rule produces significant nega- tive consequences. Beyond defeating state interests in a sweeping way (as just explained), and beyond the grave consequences of Roe and Casey overall, supra Part I-B-3, a viability rule produces its own damaging consequences. For one, it “remove[s] the states’ ability to account for advances in medical and scientific tech- nology that have greatly expanded our knowledge of prenatal life.” MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774 (8th Cir. 2015) (internal quotation marks and brackets omitted). Again, a State cannot account for what it may learn about unborn life— about pain perception, how early a child fully takes on the human form, and more. But see Webster v. Repro- ductive Health Services, 492 U.S. 490, 552 (1989) (Blackmun, J., concurring in part and dissenting in part) (State’s interest “increases ... dramatically” as “capacity to feel pain ... increases day by day”). In practical effect, a State must shut its eyes to these de- velopments: a viability rule prevents it from fully act- ing on them.

For another, a viability rule makes constitution- ally decisive such factors as the state of medicine and a woman’s proximity and access to sufficient medical care. See, e.g., City of Akron v. Akron Center for Re- productive Health, Inc., 462 U.S. 416, 458 (1983) (O’Connor, J., dissenting) (faulting a framework that is “inherently tied to the state of medical technology that exists whenever particular litigation ensues”); MKB Mgmt., 795 F.3d at 774 (a viability rule “tie[s] a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn”). A vi- ability rule also means that a State was blocked from prohibiting particular abortions in 1973 but may to- day prohibit the same abortions. See, e.g., Edwards v. Beck, 786 F.3d 1113, 1118 (8th Cir. 2015) (per curiam) (“scientific advancements” since Roe “have moved the viability point back”). The arbitrary nature of a via- bility rule is a terrible flaw in a judicially announced rule of constitutional law.

The unprincipled nature of a viability rule harms the Judiciary. Under our Constitution, a legislature “may draw lines which appear arbitrary”—say, a 55- mile-per-hour speed limit. Casey, 505 U.S. at 870 (plu- rality opinion). But a court must “justify the lines [it] draw[s].” Ibid. A stages-of-pregnancy framework— like one anchored to viability—conflicts with the Ju- diciary’s “need to decide cases based on the applica- tion of neutral principles.” City of Akron, 462 U.S. at 452 (O’Connor, J., dissenting). There is no principled reason “why the State’s interest in protecting poten- tial human life”—or protecting women’s health and the medical profession’s integrity—“should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regula- tion after viability but prohibiting it before viability.”

Webster, 492 U.S. at 519 (plurality opinion); accord City of Akron, 462 U.S. at 461 (O’Connor, J., dissent- ing) (“[P]otential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. ... The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before via- bility or any point afterward.”). A viability rule erects an arbitrary line that produces arbitrary results. That cannot stand from the Branch that must act based on principle. Casey, 505 U.S. at 865 (“a decision without principled justification would be no judicial act at all”).

There is no persuasive reason for a viability rule. Casey’s defenses of a viability-centered heightened- scrutiny framework do not justify a rule that a State may not prohibit any abortions before viability. Casey itself upheld laws that would have prohibited some pre-viability abortions—including laws imposing a 24-hour waiting period and a parental-consent re- quirement. See infra Part II-B. And a viability rule cannot be reconciled with this Court’s decision in Gon- zales upholding a prohibition on an abortion proce- dure performed both before and after viability. 550 U.S. at 147. This Court has thus already “blur[red] the line ... between previability and postviability abortions.” Id. at 171 (Ginsburg, J., dissenting). In ar- ticulating a viability line, moreover, this Court has considered the State’s interest “in the protection of po- tential life,” 505 U.S. at 871 (plurality opinion), but has not addressed its interest in preventing fetal pain—an interest backed by medical and scientific ad- vances since Roe, MKB Mgmt., 795 F.3d at 774.

Casey asserted that Roe’s viability line was “elab- orated with great care.” 505 U.S. at 870 (plurality

opinion). As already explained, that is not so. Roe’s (and Casey’s) defense of a viability-based regime is circular and without substance. And Roe’s canvassing of the historical treatment of abortion did not disclose a historical basis for a viability rule. 410 U.S. at 129- 47. Casey maintained that “no line other than viabil- ity ... is more workable.” 505 U.S. at 870 (plurality opinion). But even if viability did provide a measure of workability in a heightened-scrutiny framework (and it does not, supra Part I-B-2), that would not jus- tify making it an unyielding barrier, regardless of the state interests involved, to prohibitions on abortions. Last, Casey said that the Court had twice reaffirmed a viability line “in the face of great opposition.” 505 U.S. at 870 (plurality opinion). But that again does not support a firm rule that a State may not prohibit any abortions before viability.

This Court should reject a viability rule. Reasons for rejecting heightened scrutiny, supra Part I, apply here. And the poor reasoning, harm to state interests, and other negative consequences with a viability rule itself decisively favor rejecting it—and negate any precedential force that such a rule can claim.

B. This Court Should Reject The Judgment Below.

For reasons already given, the soundest way to re- solve this case is to reject heightened scrutiny for abortion restrictions and reverse the judgment below under rational-basis review. Supra Part I; see Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J., concurring) (“It should go without saying ... that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”). If this Court rejects a viability rule but is not prepared

to reject heightened scrutiny, however, it should still reverse the court of appeals’ judgment. Two chief al- ternatives are addressed below.

First, if this Court does not adopt rational-basis review, it should hold that the Act satisfies any stand- ard of constitutional scrutiny including strict scru- tiny, reverse the judgment below, and leave for an- other day the question of what standard applies in the absence of a viability rule. The Court could hold that the State’s interests in protecting unborn life, women’s health, and the medical profession’s integ- rity are, at a minimum, compelling at 15 weeks’ ges- tation—when risks to women have increased consid- erably, App.67a-68a; when the child’s basic physiolog- ical functions are all present, his or her vital organs are functioning, and he or she can open and close fin- gers, make sucking motions, and sense stimuli from outside the womb, App.66a; and thus when a doctor would be extinguishing a life that has clearly taken on the human form. The Court could hold that the Act serves those “compelling interest[s]” in a “narrowly tailored” way. Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015). It prohibits abortions after 15 weeks’ gestation except when a woman’s health is at risk (the medical-emergency exception, App.70a) or when the unborn life is likely not to survive outside the womb (the severe-fetal-abnormality exception, ibid.; see App.69a).

Second, and alternatively, this Court could reject a viability rule, clarify the undue-burden standard, and reverse on the ground that the Act does not im- pose an undue burden. On this approach, the Court could hold that the undue-burden standard is “a standard of general application,” Casey, 505 U.S. at 876 (plurality opinion), that does not categorically bar

prohibitions of pre-viability abortions. That holding would draw some support from the fact that Casey up- held restrictions on abortion that would prohibit some pre-viability abortions. E.g., id. at 881-87 (joint opin- ion) (upholding 24-hour waiting period, which would prohibit pre-viability abortions sought the day before viability); id. at 899-900 (joint opinion) (upholding pa- rental-consent provision, which would prohibit abor- tions for minors who could not secure consent or a ju- dicial bypass). Casey upheld those provisions on the ground that they did not “constitute an undue bur- den.” June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103, 2137 (2020) (Roberts, C.J., concurring in judgment).

Applying that approach here, this Court could hold that a State may prohibit elective abortions before vi- ability if it does not impose a substantial obstacle to “a significant number of women” seeking abortions. Ibid.; cf. Casey, 505 U.S. at 895 (assessing facial chal- lenge by looking to whether abortion restriction “will operate as a substantial obstacle” “in a large fraction of the cases in which” it “is relevant”). Respondents allege that they do not perform abortions after 16 weeks’ gestation, so the Act reduces by only one week the time in which abortions are available in Missis- sippi. D. Ct. Dkt. 23 at 20 ¶ 51. Under no sound meas- ure of the Act’s facial validity does it impose an un- constitutional burden. See D. Ct. Dkt. 5-1 at 2 ¶ 7; D. Ct. Dkt. 85-5 at 11 (providing data indicating that in 2017 at most 4.5% of the women who obtained abor- tions from respondents did so after 15 weeks’ gesta- tion). Indeed, given that the vast majority of abortions take place in the first trimester, a 15-week law like the Act does not pose an undue burden because it does not “prohibit any woman from making the ultimate

decision to terminate her pregnancy.” Gonzales, 550 U.S. at 146; see CDC, Abortion Surveillance—Find- ings and Reports (Nov. 25, 2020), https://perma.cc/33EE-Z2PY (“The majority of abor- tions in 2018 took place early in gestation: 92.2% of abortions were performed at ≤ 13 weeks’ gestation ... .”). It just prevents a woman from doing so when the health risks are magnified, when the unborn child has fully taken on “the human form,” Gonzales, 550 U.S. at 160, and when the typical method of accom- plishing it is (a State could conclude) as “brutal” and “gruesome” as what the Court permitted Congress to ban in Gonzales, id. at 182 (Ginsburg, J., dissenting). The Act also provides medical-emergency and severe- fetal-abnormality exceptions, which confirm that there is no undue burden. And if this Court believes that its existing approach to assessing facial chal- lenges to abortion restrictions does not allow this re- sult, that is another reason to reject Casey outright.

However this Court answers the question pre- sented, it should reject the judgment below. At least it should reject a viability rule and uphold the Act. But the best resolution is overruling Roe and Casey and upholding the Act under rational-basis review. Only that approach will eliminate the grave errors of Roe and Casey, restore workability, pare back decades of negative consequences, and allow the people to ad- dress this hard issue.

CONCLUSION

“The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.” Webster, 492 U.S. at 521 (opin- ion of Rehnquist, C.J.). Roe and Casey—and a

viability rule—do not meet that goal. And they never can. Retaining them harms the Constitution, the country, and this Court. This Court should hold that the Act is constitutional because it satisfies rational- basis review, overrule Roe and Casey, and reverse the judgment below.

Respectfully submitted.

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benrleeusa · 6 years

Text

[Eugene Volokh] Judicial Candidates' Free Speech Rights

Montana, like many states, elects judges. Montana also doesn't list party affiliations for judges on its ballots (a position Montana is free to take). But Montana adds to that by restricting the speech of judicial candidates -- barring them from soliciting party endorsements, and informing the public of any party endorsements that they get.

The Ninth Circuit upheld that restriction last year, relying on the Supreme Court's 5-4 decision in Williams-Yulee v. Florida Bar (2015). That decision upheld a much narrower speech restriction: a ban on judicial candidates directly soliciting funds. But the Ninth Circuit concluded that Williams-Yulee authorized a much broader range of restrictions on judicial candidate speech as well.

The petition for review in that case (French v. Jones) is now before the Supreme Court, and last week my students Nicole Karatzas, Christina Kroll, and Eric Lamm and I filed an amicus brief supporting the petition, on behalf of the Institute for Free Speech. Here's the text of the brief, in case some of you are interested; recall that the brief is aimed at persuading the Court to devote time to hearing the case -- because it involves an important issue that arises often, and that has divided lower courts -- and not just at persuading the Court that the result below is wrong.

* * *

Summary of Argument

In Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015), this Court upheld a restriction on judicial candidates' soliciting money in person. This Court stressed that the restriction affected only "a narrow slice of speech," id. at 1670. And this Court's opinion did not purport to deviate from the decision in Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002), which struck down a rule barring judicial candidates from announcing their views on disputed legal or political issues. Indeed, the restriction in White was struck down because it limited speech on political issues, 536 U.S. at 776, while the restriction in Williams-Yulee was upheld because it "le[ft] judicial candidates free to discuss any issue with any person at any time," 135 S. Ct. at 1670.

Yet the court below concluded that Williams-Yulee did in fact diverge sharply from White, "mark[ing] a palpable change in the approach to state regulations of judicial-campaign speech," and permitting broad restrictions that would have previously been seen as unconstitutional. Pet. 15a. Relying on this conclusion, the court below upheld a rule prohibiting judicial candidates from "seek[ing], accept[ing], or us[ing] endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate." Mont. Code of Judicial Conduct Rule 4.1(A)(7); Pet. 3a. In the process, the court below also suggested that Williams-Yulee marked a sharp change in how this Court treats underinclusiveness when conducting a strict scrutiny analysis—even though Williams-Yulee did not suggest any such change, and even though any such change could have vast effects on free speech cases far outside the area of judicial campaign speech.

Like the rule in White, and unlike that in Williams-Yulee, this rule restricts candidates from discussing information that is important to many voters. Many voters find party endorsements helpful because such endorsements (1) are a useful shorthand for a candidate's position on many important issues, and (2) show that the political party finds the candidate credible. Nevertheless, the court below concluded that Williams-Yulee rendered unpersuasive these arguments—the very arguments used to invalidate similar restrictions in the "pre-Williams-Yulee world," e.g., Sanders County Republican Central Committee v. Bullock, 698 F.3d 741, 747 (9th Cir. 2012). Pet. 13a.

Other courts have also mistakenly concluded that Williams-Yulee allows for broad restrictions on judicial candidate speech. The Sixth Circuit upheld a restriction on all judicial campaign solicitations, including by campaign committees, outside a specified time window. O'Toole v. O'Connor, 802 F.3d 783, 791 (6th Cir. 2015). The Sixth Circuit repeatedly cited Williams-Yulee for support, see id., even though the rule in Williams-Yulee was upheld in part because it did not prohibit campaign committees from soliciting contributions. Williams-Yulee, 135 S. Ct. at 1668. Similarly, the Kentucky Supreme Court upheld a rule preventing judicial candidates from acting as political party spokespeople or hosting events for a political party. Winter v. Wolnitzek, 482 S.W.3d 768, 777-78, 780-81 (Ky. 2016).

At the same time, some lower court opinions continue to read Williams-Yulee narrowly. For example, in Winter v. Wolnitzek, 834 F.3d 681, 689-91 (6th Cir. 2016), the court relied on pre-Williams-Yulee cases, including White, in invalidating a prohibition on candidates from making speeches "for or against a political organization."

This Court should grant certiorari to clarify the effect of Williams-Yulee, reaffirm the narrowness of that decision, protect judicial campaign speech, and prevent the erosion of the longstanding strict scrutiny framework, which is critical to protecting free speech more broadly.

Argument

[I.] Williams-Yulee does not mark a "clear shift" in this Court's jurisprudence and does not allow for broad restrictions on judicial candidate speech

[A.] Williams-Yulee does not overrule this Court's prior decision in White

The decision below upholds Mont. Code of Judicial Conduct Rule 4.1(A)(7), which prohibits judicial candidates from "seek[ing], accept[ing], or us[ing] endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate." The court below upheld this rule because it believed that "[t]he strict First Amendment framework of [Republican Party of Minnesota v. White] underwent significant changes with the Supreme Court's decision in Williams-Yulee." Pet. 12a. The First Amendment arguments against the constitutionality of this Rule, the court below held, were part of the "pre-Williams-Yulee world," Pet. 13a, and "no longer carry the day" the way they might have under White, id. at 22a.

But nothing in Williams-Yulee suggests that it reformed strict scrutiny doctrine, or sharply lessened judicial candidates' rights to speak about political topics that are important to voters. Rather, the analysis in Williams-Yulee differed from that in White because this Court was considering two very different restrictions:

In Williams-Yulee, this Court found that a restriction on in-person solicitation was narrowly tailored in part because it "le[ft] judicial candidates free to discuss any issue with any person at any time." 135 S. Ct. at 1670. Candidates could "otherwise communicate their electoral messages in practically any way." at 1672.

In White, on the other hand, this Court struck down a rule that prohibited judicial candidates from "announc[ing] his or her views on disputed legal or political issues," 536 U.S. at 768, 788—a much broader speech restriction.

Indeed, Williams-Yulee repeatedly cited White with approval. See, e.g., Williams-Yulee, 135 S. Ct. at 1659, 1665-67.

The court below acknowledged that the solicitation restriction upheld in Williams-Yulee was narrower than the endorsement restriction in this case, Pet. 16a, but nevertheless concluded that Williams-Yulee marked a "palpable change in the approach to state regulations of judicial-campaign speech," id. at 15a. Indeed, the court below held that Williams-Yulee lessens the standards used in White for many aspects of strict scrutiny: the inquiry into underinclusiveness, id. at 16a, into overinclusiveness, id. at 17a, into material advancement of the interest, id. at 22a, 28a-29a, and into the presence of less restrictive means, id. at 28-29a. That is an unjustified overreading of Williams-Yulee.

[B.] The Montana Rule is unconstitutional under both Williams-Yulee and White

Like the restriction in White, the Montana Rule does not leave "judicial candidates free to discuss any issue with any person at any time," Williams-Yulee, 135 S. Ct. at 1670. A restriction on soliciting or disclosing party endorsements does interfere with voters' ability to determine where the candidate stands on various issues: Party endorsements serve as a shorthand for a candidate's general ideological position, which voters can quickly consider without having to do detailed research on the candidate's more specific views. Endorsements also communicate that a candidate has been vetted by a political party and has been found to be qualified and trustworthy.

The Montana Rule also selectively limits candidates' ability to report endorsements that have a particular content—e.g., "The Republican Party has endorsed me"—but not those that have other contents, such as "The National Rifle Association has endorsed me" or "Well-known environmental activist Jane Smith has endorsed me." See Mont. Code of Judicial Conduct Rule 4.2(B)(5). Yet if the state believes that political endorsements undermine judicial integrity, endorsements by interest groups and private individuals would do so about as much, or perhaps even more.

Groups like a local Association of Prosecuting Attorneys, the Sheriffs' Association, or Trial Lawyers Association may represent specific interests that routinely come before the court, perhaps even in every criminal case or every personal injury case. Yet Montana judicial candidates may communicate such groups' endorsements, but not endorsements from political parties, whose interests come before judges (especially trial judges) much less often.

This renders the Montana rule unconstitutionally underinclusive, even under Williams-Yulee: "Underinclusivity creates a First Amendment concern when the State regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects its stated interest in a comparable way." See Williams-Yulee, 135 S. Ct. at 1670; see also Sanders County, 698 F.3d at 744 (striking down a selective ban on endorsements of judicial candidates by political parties, because it unconstitutionally distinguished between such endorsements and endorsements by other groups).

And the rule cannot be saved by arguing, as did the court below, that, "[i]f judicial candidates, including sitting judges running for reelection, regularly solicit and use endorsements from political parties, the public might view the judiciary as indebted to, dependent on, and in the end not different from the political branches." Pet. 21a. First, the government cannot restrict speech on the grounds that the speech will lead the public to view the speakers in a particular way that the government views as inappropriate. Second, if soliciting and publicizing endorsements creates such an unacceptable risk of indebtedness and dependency, that risk would also be present for endorsements sought from sheriffs' associations, prosecutors' associations, or trial lawyers' associations, and not just for endorsements sought from parties. After all, the "structurally independent judiciary" that Montana is said to value, Pet. 20a, must mean structural independence from sheriffs and prosecutors and not just from parties and their members in the political branches.

The Montana approach leaves the dangers posed by interest group endorsements to the political process: Elected judges remain accountable to the voting public, and voters are free to reject any candidates whom they view as unduly indebted to endorsing groups, or as unduly lacking in independence. But the same remedy should be equally available for endorsements by the particular interest groups that we call political parties.

"If the state chooses to tap the energy and legitimizing power of the democratic process, it must accord the participants in that process * * * the First Amendment rights that attach to their roles." White, 536 U.S. at 788. "It may be, of course, that Montana reasonably believes that restricting political endorsements of judicial candidates enhances the independence of its judiciary; but such supposed 'best practices' are not remotely sufficient to survive strict scrutiny." Sanders County, 698 F.3d at 746.

[C.] Other lower court decisions have similarly misunderstood the scope of Williams-Yulee

The opinion below is not alone in its overbroad misreading of Williams-Yulee. Wolfson v. Concannon made the same mistakes in upholding a Arizona ban on (among other things) judicial candidates' endorsing candidates for other offices. 811 F.3d 1176, 1179-80 (9th Cir. 2016) (en banc).

The Arizona rule lacked the saving features that this Court relied on in Williams-Yulee. The Florida rule in Williams-Yulee left candidates "free to discuss any issue" at any time, 135 S. Ct. at 1670; the Arizona rule barred candidates from discussing issues such as whether Donald Trump or Hillary Clinton should be President.

Likewise, Williams-Yulee stressed that the Florida rule did not prohibit solicitation by campaign committees, id. at 1669, but the Arizona rule did bar speech by campaign committees. See Ariz. Code of Judicial Conduct Rule 4.1(B). Yet the Ninth Circuit ignored these distinctions and claimed that the reasoning in Williams-Yulee made the Arizona rule constitutional. Wolfson, 811 F.3d at 1183.

The Sixth Circuit similarly upheld a rule that restricted candidates or their committees from collecting campaign contributions 120 days before an election. O'Toole, 802 F.3d at 791. The Sixth Circuit reasoned that, "[w]hile the concerns raised by a judicial campaign committee's solicitation may be more attenuated than those raised by direct candidate solicitation, the close connection between judicial candidates and their campaign committees * * * implicates many of the same concerns regarding judicial integrity and propriety." Id. at 789-90. Yet, like the Wolfson court, the Sixth Circuit ignored the fact that the rule in Williams-Yulee was upheld in part because it left campaign committees free to solicit funds. Williams-Yulee, 135 S. Ct. at 1668; see also id. at 1669 (reasoning that "[w]hen the judicial candidate himself asks for money, the stakes are higher for all involved").

[D.] Other lower court decisions have similarly misunderstood the scope of Williams-Yulee

Unsurprisingly, such overreading of Williams-Yulee creates a disagreement between the decisions cited above (including the court below) and other decisions that continue to read Williams-Yulee narrowly, and continue to rely on White.

For instance, in Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir. 2010), decided before Williams-Yulee, the Sixth Circuit relied on White to invalidate a Kentucky rule prohibiting judicial candidates from disclosing their party affiliation "when speaking to a gathering." The Sixth Circuit held that the rule was overinclusive with respect to the government's interest in judicial integrity since it prohibited candidates from speaking on issues that are important to voters. Id. at 201-02.

And the Sixth Circuit then reaffirmed this approach after Williams-Yulee. Kentucky had by then adopted a new rule prohibiting a judicial candidate from campaigning "as a member of a political organization." Winter, 482 S.W.3d at 775. The Kentucky Supreme Court construed the regulation as still prohibiting candidates from representing themselves as the "endorsed judicial nominee of a political party," id. at 776, and concluded that this interpretation was constitutional. Though this holding contradicted Carey, the Kentucky court decided that "our tailoring comports with the standard prescribed in Williams-Yulee." Id. at 781.

But the Sixth Circuit disagreed with the Kentucky Supreme Court, invalidating the newly construed rule, as well as a related canon barring candidates from making speeches "for or against a political organization." Winter, 834 F.3d at 689. The Sixth Circuit noted no practical difference for First Amendment purposes between stating "I am a Republican," the speech covered by the restriction in Carey, and "I am for Republicans." Id. at 688-89.

The Sixth Circuit's decision rightly concluded that White and Carey were controlling, even after Williams-Yulee, on the question of a restriction on speech about political affiliation.[1] This understanding is contrary to that of the Ninth Circuit, as demonstrated by both Wolfson and the decision below.

Indeed, the Montana restriction on political endorsements at issue here is similar to the one invalidated by the Sixth Circuit in Carey. Like the restriction on announcing one's political affiliation in Carey, a prohibition on candidates "us[ing] political endorsements" limits voters' access to important information on the candidates' political ideologies. Nevertheless, the Ninth Circuit simply discounted the importance of White and Carey by stating that they were part of the "pre-Williams-Yulee world." Pet. 13a.

[II.] Williams-Yulee does not relax the requirement that speech restrictions not be underinclusive with respect to a compelling interest

The principle that speech restrictions fail strict scrutiny if they are underinclusive has been at the heart of many of this Court's leading First Amendment precedents. See, e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015); Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 802 (2011); Citizens United v. FEC, 558 U.S. 310, 362 (2010); Florida Star v. B.J.F., 491 U.S. 524, 540 (1989); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987); Carey v. Brown, 447 U.S. 455, 465 (1980); First Nat'l Bank v. Bellotti, 435 U.S. 765, 793 (1978); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975). Undermining this principle would undermine speech protections far outside judicial campaign speech.

This Court's application of the underinclusiveness analysis in Williams-Yulee was doubtless not meant to sharply redefine the meaning of underinclusiveness. Rather, the Williams-Yulee analysis should be read as consistent with the Court's past underinclusiveness precedents, including White.

While Williams-Yulee stated that "the First Amendment imposes no freestanding underinclusiveness limitation," 135 S. Ct. at 1668 (quotations omitted), it did so in the course of explaining the continued vitality of underinclusiveness as a tool for identifying ways in which the law may fail strict scrutiny. Underinclusiveness casts doubt on "whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Id. at 1668. It can also show that (1) the alleged interest is not the government's real interest; (2) the interest is not as compelling as claimed, because it leaves a patchwork of exclusions; or (3) that such a patchwork keeps the restriction from materially advancing the interest. Id.

The Williams-Yulee restriction was not underinclusive, in this Court's view, because the distinction cast no doubt on the government's stated purpose for the restriction. The interest in judicial integrity was implicated "most directly by the candidate's personal solicitation itself." Id. at 1669. "[P]ersonal requests for money by judges and judicial candidates," this Court concluded, is the "conduct most likely to undermine confidence in the integrity of the judiciary." Id. at 1668.

This Court therefore held that the distinction between personal requests for money and other speech well fit the government's stated interest. This reasoning is consistent with White, because in White the restriction on announcing one's position on contested issues only during the election campaign—as opposed to before the campaign or after the election—was so "underinclusive as to render belief in that purpose a challenge to the credulous," White, 536 U.S. at 779-80, something this Court specifically said was absent in Williams-Yulee.

Despite this, the lower court decisions cited in Parts I.A-I.C have concluded that Williams-Yulee sharply narrows the underinclusiveness inquiry. See, e.g., Pet. 15a-17a; Wolfson, 811 F.3d at 1183-84. For example, as Part I.B notes, the court below rejected the argument that the restriction on communicating political party endorsements—but not on advocacy group endorsements—is underinclusive, Pet. 22a, even though both kinds of endorsements comparably undermine the government interest.

If this misunderstanding of Williams-Yulee remains uncorrected, the value of underinclusiveness as part of the strict scrutiny analysis—a value recognized by this Court in the many cases cited at the start of this section—would be dramatically diminished. And this damage would spread far beyond judicial campaign speech and affect restrictions on other speech as well.

Conclusion

State and lower federal courts are confused about the scope of Williams-Yulee. The decision below is one example: It relies on Williams-Yulee to uphold a speech restriction that lacks the narrowing features the importance of which this Court stressed in Williams-Yulee itself. And if left intact, the decision below—which purports to authoritatively summarize this court's judicial candidate speech jurisprudence, Pet. 7a-18a—will likely become influential precedent for other lower courts. This court should grant certiorari and reaffirm the narrowness of its holding in Williams-Yulee.

[1] Likewise, Attorney Grievance Comm'n of Maryland v. Stanalonis, 126 A.3d 6, 12 (Md. 2015), held that a lawyer running for judicial office could not be sanctioned for his allegedly erroneous statements about his opponent, and relied on White's statement that "speech about the qualifications of candidates for public office [including judicial office]" is "at the core of our First Amendment freedoms," 536 U.S. at 774. The opinion did not cite Williams-Yulee.

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