CONSTITUTIONAL RIGHT TO ABORTION
Petitioner Dobbs argues that the Constitution does not provide a right to abortion and, therefore, a state can freely ban abortions at any time during pregnancy, as long as the regulation is “rationally related to legitimate government interests.” Brief for Petitioners, Dobbs et al. ("Dobbs"), at 13. Dobbs contends that the text of the Constitution does not mention abortion at any time. Id. at 12. In comparison, Dobbs notes that while the Tenth Amendment denies states several powers such as coining money or making treaties, it does not deny states the power to restrict abortion. Id.
Furthermore, according to Dobbs, a right to abortion cannot arise from the word “liberty” in the Due Process Clause of the Fourteenth Amendment, because “liberty” only implicates fundamental rights that are deeply rooted in United States' history and tradition. Brief for Petitioners at 12. Dobbs further argues that, at the time of the Fourteenth Amendment’s ratification, the public would have understood that “liberty” did not cover abortion because many states already restricted abortion at that time. Id. at 12–13. Dobbs also distinguishes Obergefell v. Hodges, which holds that “liberty” includes a right to same-sex marriage, on the ground that a right to marry is fundamental to this nation's tradition, whereas a right to abortion is not because nothing in America’s Constitution, history, or tradition makes it fundamental. Id. at 13. Thus, Dobbs argues that abortion regulations only need to pass rational basis review to determine the constitutionality of HB 1510. Id. at 36. According to Dobbs, Mississippi has legitimate state interests in protecting the life of the fetus, the health of women, and the integrity of the medical professions. Id. at 36–37.
Women's Health responds that the right to abortion is firmly grounded in the Fourteenth Amendment. Brief for Respondents, Jackson Women's Health Organization et al. ("Women's Health") at 17. According to Women's Health, physical autonomy and body integrity are essential elements of liberty protected by the Due Process Clause. Id. For example, Women’s Health points out that the Court has held that the right to decide whether to accept medical treatment, the right to use contraception, etc. are all included in the word “liberty.” Id. at 17–18.
Moreover, Women's Health contends that it does not matter that some states prohibited abortion when the Fourteenth Amendment was ratified. Brief for Respondents at 20. If such reasoning were to be taken seriously, according to Women's Health, Brown v. Board of Education, which bans racial segregation in public schools, would have been wrongly decided, since the same Congress that enacted the Fourteenth Amendment also segregated the public schools in the District of Columbia. Id. Women's Health also argues that the right of a person to the possession of their own body is recognizably important in the common law tradition and this nation's history, pointing out that women enjoyed greater right to abortion during the nineteenth century than in the 1970s. Id. at 21.
BINDING FORCE OF PRECEDENT
Dobbs argues that the Court should overrule Roe v. Wade (“Roe”) and Planned Parenthood of Southeastern Pennsylvania v. Casey (“Casey”), both of which held that the right to abortion is constitutionally grounded under the word “liberty” of the Fourteenth Amendment. Brief for Petitioners at 14. Dobbs first contends that Roe and Casey are grievously wrong because there is no right to abortion in either the Constitution or United States' tradition. Id. at 14–15. According to Dobbs, in deciding Roe, the Court wrongly held that the Constitution protects a general right of privacy. Id. at 15. Dobbs also argues that the Court's precedents present an unfeasible legal standard because it is too subjective to decide whether a burden is "undue." Id. at 19.
Additionally, Dobbs argues that Roe and Casey have disturbed the democratic principle of self-governance by prohibiting “the people” from addressing this critical policy question. Brief for Petitioners at 23. According to Dobbs, these cases undermine the Court's authority because the abortion cases inevitably insert the Court into a political question. Id. at 25. Dobbs also contends that legal and factual developments since Roe and Casey were decided undermined their central holdings. Id. at 28. Legally, Dobbs points out that the right to abortion is the only constitutional right that involves the termination of a human life. Id. Factually, Dobbs argues that greater protection of pregnant women and better access to contraceptives can relieve a woman's burden to bear the child. Id. at 29–30. Dobbs argues that there are no reliance interests for retaining Roe and Casey because abortion jurisprudence has been fractured and unsettled for many years. Id. at 31, 33.
In response, Women's Health argues that the Court should uphold Roe and Casey. Brief for Respondents at 9. Women's Health notes that the Court already considered all the arguments that Dobbs makes on the right to abortion and the viability line back in Casey and explicitly rejected them. Id. Additionally, Women's Health contends that abortion jurisprudence is clear and workable. Id. at 22. According to Women's Health, the Court has over the years reaffirmed the central holding of Roe, holding that a state cannot ban abortions before viability. Id. Moreover, Women’s Health points out that the undue-burden test, which Dobbs argues is too subjective, only applies to abortion regulations, whereas the present case involves an abortion ban. Id. at 23.
Women's Health also disagrees with Dobbs’ argument that modern contraception and legal changes have rendered abortion unnecessary for women to participate equally in society. Brief for Respondents at 34. First, Women's Health argues that the right to decide if and when to have children is fundamental to the notion of individual autonomy and, thus, no policy change that promotes gender equality would ever render such a decision unnecessary. Id. Second, Women's Health refutes Dobbs' position that contraception is universally accessible and affordable. Id. at 35. Third, Women's Health points out that gender equality has not been reached in our society and, even if it has, there is no reason to take away women's right to make their own decisions. Id. at 35–36. Women's Health further argues that the right to abortion has become embedded in this country’s history and culture: for nearly half a century, women have organized their lives in reliance on their ability to control their reproductive lives, and research shows that the right to pre-viability abortion is still essential to women’s equal participation in the economic and social sphere. Id. at 36–37.
EFFECTIVENESS OF THE VIABILITY LINE
If the Court refuses to overrule Roe and Casey, Dobbs argues alternatively that the Court should reject viability as a determining line to prohibit abortion. Brief for Petitioners at 38. According to Dobbs, a viability line is unsupported by the Constitution because it, like the abortion right, is not based in the Constitution. Id. at 39. Dobbs also contends that upholding the viability line would prevent a state from protecting its interests, which are present throughout pregnancy. Id. at 41. Dobbs further argues that a viability line is arbitrary because it depends on the progress of obstetrics, not the development of the fetus. Id. at 43. Moreover, Dobbs contends a viability line is also incompatible with Casey and Gonzales v. Carhart, which upheld the prohibition of some pre-viability abortions. Id. at 44. Dobbs therefore argues that, if the Court does not overrule Roe and Casey altogether, it should apply the undue-burden test throughout pregnancy. Id. at 47.
Women's Health responds that the viability line is the central holding of Roe and Casey and there is no reason to overrule it. Brief for Respondents at 12. According to Women's Health, the Court has reiterated and reaffirmed the viability line many times in subsequent cases, such as June Medical Services v. Russo and Gonzales. Id. at 14. Women's Health contends that no legal or factual change supports abandonment of the viability line. Id. at 22–23. Further, Women’s Health disagrees with Dobb’s argument that the viability line is arbitrary because (1) federal courts have uniformly applied the viability line to abortion cases for fifty years; (2) research shows that the current viability line has not changed for thirty years. Id. at 23, 25. Women's Health also argues that Dobbs has not provided any alternative to the viability line to sustain the right to abortion. Id. at 41. According to Women’s Health, if the Court agrees with Dobbs and holds that HB 1510 satisfies “any level of scrutiny,” leaving the issue of scrutiny level for another day, the effect would be equivalent to overruling Roe and Casey because any abortion ban would have a chance to pass constitutional muster. Id. at 43.