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.

The Constitution does not protect a right to abortion. The Constitution's text says nothing about abortion. 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 *13 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 recognized a fundamental right to marry. Obergefell applied the understanding that when a right “is fundamental as a matter of history and tradition” - like marriage - then a State must have “a sufficient justification for excluding the relevant class” from exercising it. Id. at 671. That understanding has no relevance here, where the question is not “who [may] exercise[ ]” a fundamental right to abortion but whether the Constitution protects such a right at all. Ibid.

Because nothing in text, structure, history, or tradition makes abortion a fundamental right or denies States the power to restrict it, that “power [ ]” is “reserved 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 legitimate government interests.” Ibid.

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 specially protected by the Fourteenth Amendment, and so laws restricting it must withstand heightened scrutiny. 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 abortion.” 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 overwhelming. Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. They have inflicted profound damage. Decades of progress have overtaken them. Reliance interests do not support retaining them. And nothing but a full break from those cases can stem the harms they have caused.

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 decisis consideration). As just explained, their *15 conclusion that abortion is a constitutional right triggering heightened scrutiny, Casey, 505 U.S. at 869-79 (plurality opinion); Roe, 410 U.S. at 155-56, has no basis in text or structure, and history and tradition show that abortion is not a right protected by the Due Process Clause. Supra Part I-A.

Roe grounded a right to abortion on a constitutional “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 specific 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 structural feature guarantees a right to abortion. And although 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 “consistent 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 expansive approach to the right of privacy among pre-Roe cases, finds grounding in text and tradition. In invalidating a state law regulating the use of contraceptives, Griswold vindicated the textually and historically grounded Fourth Amendment protection against government invasion of the home - which would likely have been necessary to prosecute under the *16 statute. E.g., id. at 480, 484-85. Griswold also vindicated our history and tradition of safeguarding “the marriage relationship” - which raises privacy interests “older than the Bill of Rights.” Id. at 486. Roe departed from prior cases by invoking a sweeping general “right of privacy” unmoored from constitutional text, structure, history, and tradition.

Casey did not embrace Roe's right-of-privacy reasoning, and instead grounded Roe's holding on an “explication of individual liberty” that focused on the constitutional protection that this Court's cases have afforded “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 reasoning. The Constitution does protect certain liberty interests 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 abortion cannot. Again, history shows that when the Fourteenth Amendment was ratified - and for a century thereafter - the public would have understood that it left States free to legislate comprehensively on abortion. Supra Part I-A.

Beyond all of these points is another that fundamentally 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 purposeful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980). Abortion is thus “different in kind from” other interests “that the Court has protected under the rubric of personal or family *17 privacy and autonomy.” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 792 (1986) (White, J., dissenting). Roe itself acknowledged 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 personal 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. C 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.”); Lawrence 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 basis in constitutional text, structure, history, or tradition, 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 restrictions 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., dissenting) (“[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some *18 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 conclusively” 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 differently from anyone else or draw any distinction between persons.” Vacco v. Quill, 521 U.S. 793, 800 (1997) (rejecting equal-protection challenge to prohibition on assisting suicide). And far from evincing an inherently discriminatory purpose, “there are common and respectable reasons for opposing [abortion], other than hatred of, or condescension toward (or indeed 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. Indeed, 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-protection footing fail.

Roe and Casey are, in sum, irreconcilable with constitutional text and “historical meaning” - which provides 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 “departed] from” original meaning).

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 predictability - 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 consistent 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. Compare, 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) (finding undue burden despite a different view of Casey), and with id. at 2154-65 (Alito, J., dissenting) (rejecting 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 restrictions. 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 *20 “meaningful [ly] ... compare.” Id. at 2136 (Roberts, C.J., concurring in judgment).

This Court has overruled precedent in circumstances like these. In Garcia v. San Antonio Metropolitan 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 (internal quotation marks omitted). Such a constitutionally unmoored inquiry, this Court explained, “inevitably invites an unelected federal judiciary to make decisions 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 “undue.” 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., concurring 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 predictable: this Court also asks whether a precedent worka-bly accounts for the interests at stake. See, e.g., Garcia, 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 federalism in a democratic society”). Although the *21 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 integrity. 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 pursuing 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 - *22 “[i]rrespective of the difficulty of the task.” City of Akron 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.

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 *24 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 *25 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 *26 (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 *27 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 *28 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.

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.

*29 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 *30 zero, see CDC, Birth Control Methods (XX/XX/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 *31 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.

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) *32 (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 *33 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 “foste[ ] 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.

*34 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 imp actful - 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 *35 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 *36 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. § 41-45. 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.

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 *37 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 *38 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.

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.

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 *39 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); *40 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.

*41 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,” Glucks berg, 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 *42 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 mediical 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 negative 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 technology 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. Reproductive 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 developments: a viability rule prevents it from fully acting on them.

*43 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.” *44 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-viabilty 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 *45 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 viability ... 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.

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 *46 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 *47 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 *48 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.

“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 *49 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.

LYN 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

scott.stewart@ago.ms.gov

(601) 359-3680

July 22, 2021

Mississippi asks the Court to take the grave step of overruling a rule of law it has repeatedly reaffirmed, having mentioned the notion only in a threadbare footnote in its petition for certiorari. See Pet. Cert. 5-6 n.1. There is a serious question whether the State's request to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Roe v. Wade, 410 U.S. 113 (1973), is even properly before this Court. The Court has sometimes dismissed petitions as improvidently granted where parties, after “[h]aving persuaded [it] to grant certiorari on [an] issue,... chose to rely on a different argument in their merits briefing.” Visa Inc. v. Osborn, 137 S. Ct. 289, 289-90 (2016) (mem.) (internal quotation marks and citation omitted; first alteration in original). It has similarly declined to consider arguments where, as here, those arguments were mentioned “[o]nly in a brief footnote of [the] petition.” Fry v. Pliler, 551 U.S. 112, 120-21 (2007); see also Decker v. Nw. Env'tl. Def. Ctr., 568 U.S. 597, 615-16 (2013) (Roberts, J., concurring) (noting that majority correctly declined to reconsider important precedent when respondent suggested reconsideration only “in one sentence in a footnote, with no argument”).

Under these circumstances, it would be appropriate to dismiss this case. Alternatively, the Court *12 could simply do what the State requested in its petition: “clarify,” under this Court's existing precedents, “whether abortion prohibitions before viability are always unconstitutional.” Pet. Cert. 14. The answer to that question is undoubtedly “yes,” as this Court has repeatedly held.

If the Court nevertheless considers the State's merits brief on its own terms, the Court should affirm.

Mississippi seeks to overrule Casey and Roe so that states can ban abortion at any stage of pregnancy. “At minimum,” Mississippi asks the Court to discard the central principle of those decisions: the viability line. Petrs. Br. 11; see also Petrs. Br. 38-45. The Court should refuse to do so.

In an “unbroken” line of cases spanning five decades, this Court has consistently held that the Constitution guarantees “the right of the woman to choose to have an abortion before viability.” Casey, 505 U.S. at 846, 870.

In Roe, the Court considered the point at which state interests, including the interest in fetal life, were sufficient to “override the rights of the pregnant woman.” 410 U.S. at 162. After painstakingly evaluating the “medical and medical-legal history” of abortion and the “logical and biological justifications” of viability, the Court settled on the viability line. *13 Id. at 117, 162-63; see also id. at 129-52, 160-61. Before that point, the Court concluded, no state interest is strong enough to outweigh the woman's liberty interest in deciding whether to carry her pregnancy to term. See id. at 164-65. In the 1980s, the Court “twice reaffirmed [the viability line] in the face of great opposition.” Casey, 505 U.S. at 870 (discussing Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 759 (1986); Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 419-20 (1983)); see also Webster v. Reprod. Health Servs., 492 U.S. 490, 529 (1989) (O'Connor, J., concurring in part and concurring in the judgment) (“[V]iability remains the ‘critical point.”’)).

In Casey, the Court again reaffirmed this “essential holding.” 505 U.S. at 846, 870-71. Viability, the Court explained, is “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent 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.” Id. at 870. Because survival outside the woman's body is not possible until then, “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.” Id. at 860 (emphasis added).³

*14 The centrality of the viability line to Casey is reflected in the Court's own elaboration of its three-part holding: First, the Court recognized the woman's right to decide “to have an abortion before viability and to obtain it without undue interference from the State,” because “[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure.” Id. at 846 (emphasis added). Second, the Court confirmed “the State's power to restrict abortions after fetal viability” if the law contains a health and life exception. Id. (emphasis added). Third, it held “that the State has legitimate interests from the outset of the pregnancy” in maternal health and fetal life, and thus can regulate abortion in a manner that does not impose an undue burden on the woman's right. Id. The Court emphasized that “[t]hese principles do not contradict each other; and we adhere to each.” Id. Indeed, Roe's “central” holding - that, until viability, the individual's right to determine whether to continue a pregnancy categorically outweighs the state's interests, including in fetal life - is mentioned in Casey's plurality opinion no fewer than 19 times.

Treating the issue as settled, the Court has reiterated the viability line many times since. See June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (“Casey reaffirmed ‘the most central principle of Roe v. Wade,’ ‘a woman's right to terminate her pregnancy before viability.”’ (quoting Casey, 505 U.S. at 871)); Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (“Before viability, a State ‘may not prohibit any woman from making the ultimate *15 decision to terminate her pregnancy.”’ (quoting Casey, 505 U.S. at 879)); Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (“[B]efore ‘viability... the woman has a right to choose to terminate her pregnancy.”’ (quoting Casey, 505 U.S. at 870)).

“Stare decisis promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) (internal quotation marks and citation omitted). Adherence to precedent not only “avoids the instability and unfairness that accompany disruption of settled legal expectations,” Randall v. Sorrell, 548 U.S. 230, 244 (2006) (plurality), but instills public confidence that court decisions are “founded in the law rather than in the proclivities of individuals, and thereby contributes 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 those reasons, “stare decisis is a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014).

*16 Stare decisis presents an even higher bar for upending precedent in this case. In the years leading up to and including Casey, this Court was repeatedly asked to overrule Roe and, in particular, to abandon the viability line.⁴ But the Court consistently refused to do so. See Casey, 505 U.S. at 844, 853, 857-58. After carefully considering every argument for overruling Roe - including criticisms of its constitutional analysis and substantive due process in general and claims related to advances in science and medicine - the Court decided to preserve Roe's central holding that “the woman has a right to choose to terminate her pregnancy” up until viability. Id. at 870. Accordingly, Casey is controlling precedent not only on the substantive liberty right at stake but also on the question of whether to overrule Roe and abandon the viability line. The issue now before the Court is whether Casey's analysis of the constitutional and institutional considerations was “egregiously wrong” on both counts. Ramos v. Louisiana, 140 S. Ct. 1390, 1414-15 (2020) (Kavanaugh, J., concurring in part).

The State falls far short of making any such showing. “[T]he vitality of [] constitutional principles... cannot be allowed to yield simply because of disagreement with them.” Casey, 505 U.S. at 867 (quoting Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955)). All the more when the Court expressly foresaw the “inevitable efforts to overturn [Roe's essential holding] and to thwart its implementation,” id. at 868, and stressed that “the Court could not pretend to [] *17 reexamin[e] the prior law with any justification beyond a present doctrinal disposition to come out differently,” id. at 864.

a. Mississippi's principal submission is that the Court should return the individual right to end a pregnancy to the same legal status as, for example, the right to practice as an optician: subject to any restriction or prohibition that can be viewed as rationally related to any legitimate state interest. Petrs. Br. 1-2, 5, 36-38; see Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 491 (1955). According to Mississippi, “nothing” in constitutional text or tradition supports any individual right - ever - to obtain an abortion. Petrs. Br. 1. Every argument Mississippi now reprises was presented in Casey. See Resp'ts. Br., Casey, 1992 WL 12006423, at *108-14. And as this Court has explained so many times before, none is correct.

The right to decide whether to continue a pregnancy is grounded in the Fourteenth Amendment's protection against deprivation of a person's liberty without due process of law. U.S. Const. amend. XIV, § 1. As the Court has explained, “[t]he controlling word in the cases before us is ‘liberty,”’ - and liberty includes “the right to make family decisions and the right to physical autonomy.” Casey, 505 U.S. at 884; see also, e.g., Riggins v. Nevada, 504 U.S. 127, 135 (1992); Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); *18 Rochin v. California, 342 U.S. 165, 172-73 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 25-31 (1905). Thus, for example, the Court has recognized that the right to liberty protects against state-forced intrusions into the body, Rochin, 342 U.S. at 172-73, as well as the ability to decide whether to accept medical treatment, Riggins, 504 U.S. at 135; Cruzan, 479 U.S. at 279. Similarly, the Court has held that liberty includes the individual's right to use contraception. See Eisenstadt, 405 U.S. at 453; Carey v. Population Servs. Int'l, 431 U.S. 678, 687 (1977).

In recent years, multiple decisions have reinforced the principle that “physical autonomy” and “bodily integrity” are integral components of liberty. Casey, 505 U.S. at 857, 884; see Sell v. United States, 539 U.S. 166, 178-79, 183 (2003); Ferguson v. City of Charleston, 532 U.S. 67, 78 & 78 n.14 (2001) (citing Whalen v. Roe, 429 U.S. 589, 599-600 (1977)); Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Court has also extended Casey's analysis of “constitutional protection [for] personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Lawrence v. Texas, 539 U.S. 558, 573-74 (2003) (citing Casey, 505 U.S. at 851); see also, e.g., Obergefell v. Hodges, 576 U.S. 644, 665-66, 675 (2015); United States v. Windsor, 570 U.S. 744, 772 (2013); Troxel v. Granville, 530 U.S. 57, 65-67 (2000); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).

In light of these precedents, that the specific words “pregnancy” or “abortion” do not appear in the Constitution's text is of no moment. The constitutional question here is whether general principles *19 grounded in the Constitution apply to the specific situation at hand. They do. As the Court explained in Casey, recognizing a fundamental liberty interest in ending a pregnancy logically follows from cases recognizing a liberty right in bodily integrity and in making decisions related to “intimate relationships, the family, and... whether or not to beget or bear a child.” 505 U.S. at 857; see also generally Constitutional Law Scholars Br.; Am. Civil Liberties Union Br.

Indeed, the word “contraception” does not appear in the Fourteenth Amendment either. Yet Mississippi concedes that “Griswold... finds grounding in text and tradition.” Petrs. Br. 15.

The State argues that Griswold vindicated only “the textually and historically grounded Fourth Amendment protection against government invasion of the home” and “our history and tradition of safeguarding ‘the marriage relationship.”’ Petrs. Br. 15-16. But Griswold involved no home invasion, and Ei-senstadt subsequently held that the same protection is not limited to married couples. See Eisenstadt, 405 U.S. at 453. Moreover, this Court long ago rejected Mississippi's narrow interpretation of Griswold, stating that Griswold cannot “be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.” Carey, 431 U.S. at 687.

*20 Mississippi also protests that the right to abortion is “different in kind from” other liberty interests because it implicates a state interest in fetal life. Petrs. Br. 16-17. But Roe already took any such difference into account. See 410 U.S. at 159. Casey, too, considered the argument that “abortion, which involves the purposeful destruction of the fetus, is different from all other medical procedures.” Resp'ts. Br., Casey, 1992 WL 12006423, at *31. And the Court held that although the state's interests may support regulation of abortion, the state cannot “resolve the[] philosophic questions in such a definitive way that a woman lacks all choice in the matter.” Casey, 505 U.S. at 850. Simply put, there can be no error in “the recognition afforded by the Constitution to the woman's liberty” to decide whether to end a pregnancy, because the “State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.” Id. at 857-58.

Nor does it matter that some states prohibited abortion at the time Roe was decided or when the Fourteenth Amendment was adopted. Petrs. Br. 13. If that were a basis for overruling precedent, then Brown v. Board of Education, 347 U.S. 483 (1954), would have to go, for the same Congress that enacted the Fourteenth Amendment also segregated the D.C. public school system. So would Gideon v. Wain-wright, 372 U.S. 335 (1963), and Loving v. Virginia, 388 U.S. 1 (1967). Some believe Heller similarly lacks any historical foundation. See 554 U.S. at 683-87 (Breyer, J., dissenting). The list could go on and on.

At any rate, history and tradition provide ample support for the conclusion that “liberty” encompasses *21 an individual's right to end a pre-viability pregnancy. The Court has long recognized that “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person.” Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251-52 (1891). Further, the common law permitted abortion up to a certain point in pregnancy, and many states maintained that common law tradition as of the late 1850s. See Roe, 410 U.S. at 140 (concluding that, for much of history and particularly during nineteenth century, “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today”); see also generally Historians Br.

In short, the key insight of Casey and Roe is that the decision whether to end a pregnancy has deep constitutional roots in the fundamental rights to bodily integrity and personal autonomy in matters of family, medical care, and faith. Casey, 505 U.S. at 857-59. Resolving now to allow the government to control this intimate personal decision to the same extent as ordinary economic and social regulation would result in a radical displacement of personal liberty in favor of the power of the state.

b. Once it is determined that deciding whether to continue a pregnancy implicates constitutional interests in bodily integrity and personal autonomy above and beyond ordinary economic and social matters, some line must be drawn to balance the individual's interests against the state's valid interests. Casey properly recognized that viability is a principled point at which to strike that balance.

*22 Before viability, there is no “realistic possibility of maintaining and nourishing a life outside the womb, so that” a state's interest in fetal life could then “override[] the rights of the woman.” Id. at 870. If a state could ban abortion during this period, it would “extinguish[]” “the urgent claims of the woman to retain the ultimate control over her destiny and her body. Id. at 869. Thus, before viability, states may regulate abortion to advance their interest in fetal life, even early in pregnancy, by enacting laws designed to persuade people to carry a pregnancy to term. Id. at 872, 882. But viability is “the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” Id. at 860 (emphases added).⁵

As Casey recognized, the viability line “has in no sense proven ‘unworkable,’ representing as it does a simple limitation beyond which a state law is unenforceable.” 505 U.S. at 855. Indeed, federal courts *23 have applied the viability rule with remarkable uniformity and predictability for five decades, finding pre-viability bans on abortion invalid regardless of whether those bans operated at 6, 12, or 20 weeks and regardless of the reasons states alleged to justify them. See, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (invalidating 6-week ban under “Supreme Court precedent holding that states may not prohibit pre-viability abortions”); Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (similar, invalidating 12-week abortion ban); Isaacson v. Horne, 716 F.3d 1213, 1231 (9th Cir. 2013) (similar, invalidating 20-week abortion ban); see also infra p. 41.n.26.

Mississippi nevertheless contends that Roe and Casey are “hopelessly unworkable.” Petrs. Br. 14, 19. But, in truth, Mississippi's arguments aim at the application of Roe and Casey to abortion regulations - not bans. See Petrs. Br. 19-21, 24-25. In particular, the State claims that Casey's undue burden test suffers from “administrability problems.” Petrs. Br. 22. This case, however, involves an abortion ban and thus does not require the Court to apply the undue burden test.

Every factual argument Mississippi and its amici raise has been made to the Court before - indeed, more than once - including as part of requests to discard the viability line. Further, the State's own data and evidence establish that, to the extent there have been any factual changes since Casey, those changes *24 reinforce the Court's previous decisions and the importance of access to legal abortion for women's health, lives, and equal status in society.

The State and its amici criticize viability as “arbitrary” and dependent on medical and scientific advancements that could move it earlier. See Petrs. Br. 43. These arguments are neither new, nor do they demonstrate any changed facts that would warrant overruling Casey.

First, the State's argument that viability may move earlier was considered and properly rejected in Casey. When Pennsylvania made the same argument in that case, the Court agreed that viability at 28 weeks was “usual at the time of Roe,” that a fetus is “sometimes” viable at 23 or 24 weeks “today,” and that viability may move to “some moment even slightly earlier in pregnancy... if fetal respiratory capacity can somehow be enhanced in the future.” Casey, 505 U.S. at 860. But the Court concluded that these facts “have no bearing” on the viability rule it-self, as it “in no sense turns on” when viability may occur. Id. “Whenever it may occur,” viability “marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on” abortion. Id. (emphasis added). As such, the Court explained, viability is “a rule of law and a component of liberty we cannot renounce.” Id. at 871; see also id. at 860, 869-70.

Second, no changed factual circumstances related to viability exist on this record in any event. Medical *25 consensus and the undisputed facts in this case establish that viability occurs no earlier than 23-24 weeks of pregnancy, JA18-20, 31, 34-35 (Carr-Ellis Decl. ¶¶ 11-15; Badell Decl. ¶¶ 4, 14) - precisely the time identified thirty years ago in Casey. 505 U.S. at 860. Further, those facts establish that life-sustaining treatment is generally not even possible for babies born before 22 weeks because of physiological limitations. JA33 (Badell Decl. ¶ 11). The record thus squarely refutes any claims that the viability line constantly moves, or that it is on the cusp of shifting significantly earlier.

Indeed, Mississippi affirmatively conceded below that the Ban prohibits abortion months before viability. JA58; see also Pet. App. 45a. The State's concession was undoubtedly a reflection of the medical consensus - including statements by its own health department. JA58. But it was also strategic: Mississippi argued in its petition for certiorari that the Ban was “an ideal case for examining a state's pre-viability interests” because 15 weeks is not even “close to the viability line.” Pet. Cert. 34. The State's own litigation position forecloses its assertion that the viability line is arbitrary and unknowable.

Mississippi raises nothing about women's health that this Court has not addressed before. Nor are there any changed facts since Casey relevant to women's health that could favor the State. If anything, legal abortion has become safer, including after 15 weeks, while childbirth, which always carries *26 significant risks, has unfortunately grown comparatively more dangerous in the United States in recent years.

First, in Casey, this Court rejected the claim that a state should be able to prohibit abortion before viability because a woman needs protection and cannot herself weigh the risks of ending versus continuing a pregnancy. See 505 U.S. at 846. There is simply “no authority for making an exception to th [e] general liberty [to make decisions] regarding one's own health for abortion.” Isaacson, 716 F.3d at 1235 (Kleinfeld, J., concurring in the judgment) (invalidating 20-week abortion ban). Accordingly, though the State “may enact regulations to further the health or safety of a woman seeking an abortion” - as it may with any medical care - it is up to the woman herself to weigh the risks of pre-viability abortion as compared to continued pregnancy and childbirth. Casey, 505 U.S. at 878 (emphasis added); see also Sessions v. Morales-Santana, 137 S. Ct. 1678, 1692 (2017) (statutory “objective itself is illegitimate” if its “objective is to exclude or ‘protect’ members of one gender in reliance on fixed notions concerning [that gender's] roles and abilities”) (internal quotation marks and citation omitted) (emphasis added).

*27 Second, the State presents no facts this Court has not seen before. Mississippi relies on statistics showing that, although legal abortion remains exceedingly safe throughout pregnancy, including in the second trimester, the risks increase as compared to the first trimester; and that the relative risk of death increases with each week of pregnancy. See, e.g., Petrs. Br. 8; Bartlett, D. Ct. Dkt. 85-6. But, as far back as Roe, the Court has been aware that risk “increases as [] pregnancy continues.” 410 U.S. at 150, 163. Similarly, in Casey, the Court acknowledged the legitimate interest of the state in protecting women's health throughout pregnancy, 505 U.S. at 846, considered the safety of legal abortion as pregnancy progresses, id. at 860, and nevertheless rejected an explicit request to abandon the viability line, see id.; see also id. at 870-71; Resp'ts. Br., Casey, 1992 WL 551421, at **16-17 (citing incremental increase in abortion risk with weeks of pregnancy). And the claims of the State's amici about the alleged health harms of legal abortion have all been made to this Court before, see, e.g., Whole Woman's Health v. Hel-lerstedt, 136 S. Ct. 2292, 2316-17 (2016), and are roundly rejected by overwhelming medical consensus, see generally Am. Coll. of Obstetricians & Gynecologists (“ACOG”) and Leading Med. Orgs. Br.⁶

Third, Mississippi's own evidence shows that abortion has only become safer since Roe and Casey. Specifically: (1) “[i]n the 25 years following the legalization of abortion in 1973, the risk of death from legal abortion declined dramatically by 85%,” Bartlett at 733, D. Ct. Dkt. 85-6; (2) when comparing the relative risk of dying from legal abortion in the time periods 1972-1979 and 1988-1997, “the risk of death *28 declined at all gestational ages” in the later time-period, id. at 731 (emphasis added); and (3) “[l]egal induced abortion-related deaths occur only rarely,” with a rate of 0.7 per 100,000 legally induced abortions for all women obtaining abortions, id. at 729, 736.

Finally, permitting states to prohibit abortion before viability would harm the health of people who need to end a pregnancy. The only alternative to abortion is continued pregnancy and childbirth - which carries substantial risks. At the time of Casey, the risk of death during childbirth was roughly ten times greater than that of legal abortion. ACOG Br., Casey, 1992 WL 12006402, at *2 (Mar. 6, 1992). “[C]hildbirth is [now] 14 times more likely than abortion to result in death.” Whole Woman's Health, 136 S. Ct. at 2315; see also generally ACOG Br. The comparative risk is even higher in Mississippi, where it is about 75 times more dangerous to carry a pregnancy to term than to have an abortion.⁷ As in the United States generally, Black women in Mississippi disproportionately bear that risk. See generally ACOG Br.; Birth Equity Orgs. Br.⁸

*29 Mortality aside, forcing a person to continue a pregnancy would impose well-documented and substantial physical health risks and emotional harms. See ACOG Br. For instance, approximately one-third of all deliveries in the United States today involve a caesarean-section, a major abdominal surgery with serious risks of complications. See id.

Banning abortion would also result in forcing some people to attempt to end their own pregnancies. See generally ACOG Br. Those without the resources to end a pregnancy safely would be exposed to increased health risks and deterred from seeking aftercare for fear of investigation or even arrest and prosecution. See id.

And make no mistake: there will inevitably be individuals who are unable to access abortion before 15 weeks or before any particular pre-viability point in pregnancy. A moment's reflection shows why this is so.

*30 To begin, a person who is considering ending a pregnancy has every incentive to access abortion before 15 weeks. Delay means a person remains pregnant and continues to experience the symptoms of pregnancy. See generally ACOG Br. Abortion also generally becomes more complex and more expensive as pregnancy progresses. See generally id. For these reasons and others, nearly every person who obtains an abortion in the second trimester would have preferred to access an abortion earlier.⁹

*31 For most of the tens of thousands of people each year who obtain an abortion after 15 weeks, however, accessing abortion care earlier is not possible.¹⁰ More than half of second-trimester abortion patients miss the window for a first-trimester abortion simply because of delays in recognizing or suspecting they are pregnant.¹¹ Late recognition of pregnancy is especially common for young people, people using contraceptives, or people who are pregnant for the first time.¹² Others who seek abortion in the second trimester do so because health conditions develop or worsen as the pregnancy progresses, or because of significant changes in their life over the course of their pregnancy. See generally, e.g., ACOG Br. Second-trimester patients may also not seek abortion care earlier because they are taking time to consult with family or a health professional before making this deeply personal decision.¹³

The State also contends that scientific advancements related to fetal development, including claims regarding fetal pain, require the Court to discard the viability line. See Petrs. Br. 30. Viability should be abandoned, Mississippi argues, so that courts can consider its claims that the fetus has “taken on the human form” by 12 weeks of pregnancy and that a fetus can experience pain prior to viability. Petrs. Br. 30. But as with the State's other claims, these arguments have been considered and rejected before. Further, the assertions about fetal pain are contrary to the overwhelming medical consensus that fetal pain is not possible until at least viability.

First, Mississippi's factual claims about fetal development, including fetal pain, have been brought to the Court many times. Texas's brief in Roe discussed fetal development in detail, at every stage of pregnancy, and claimed that conscious experience and sensitivity to touch was possible in the first trimester. Appellee Br., Roe, 1971 WL 134281, at *44 (Oct. 19, 1971). So too in Webster, in which the Court was asked to overrule Roe and abandon viability and did not. See 492 U.S. at 569 (Stevens, J., concurring *32 in part and dissenting in part) (discussing potential for fetal pain).

Arguments about fetal development were also presented in Casey, where several amici made the claims made here that, because of ultrasonography and other medical advances, “[w]hat we know now... has dramatically increased our understanding of the humanity of the unborn child.” See Am. Ass'n of Pro-Life Obstetricians & Gynecologists Br., Casey, 1992 WL 12006428, at *5 (Apr. 6, 1992). And arguments about fetal pain have been raised in more recent cases. See Gonzales, 550 U.S. at 159-160; see also Petrs. Br., Gonzales, 2006 WL 1436690, at **9a-10a (May 22, 2006) (discussing fetal pain); U.S. Rep. Charles T. Canady & Other Members of Congress Br., Stenberg, 2000 WL 228464, at *16 (Feb. 28, 2000) (claiming fetus can perceive pain by 13 weeks (citation omitted)). The Court has never accepted that any interest in fetal life can override a woman's fundamental liberty interest, pre-viability, to decide to end her pregnancy. And there is no basis for reprising those arguments yet again.

Second, the argument that conscious awareness, including the experience of pain, is possible before viability is even less supportable today than it was at the time of Casey. In the last decade, numerous major medical organizations have rejected this claim for multiple reasons, including because the experience of pain requires a functioning cortex, and the requisite function and connections to the cortex do not exist until at least 24 weeks. See generally Soc'y for Maternal-Fetal Med. Br. This medical consensus reflects *33 the conclusions of a multi-disciplinary team of physicians and scientists from all relevant fields after a years-long examination of all peer-reviewed data relevant to the issue. See Royal College of Obstetricians and Gynaecologists, Fetal Awareness: Review of Research and Recommendations for Practice, at viii - x, 1-2 (Mar. 2010). Hundreds of brain imaging studies published in peer-reviewed journals in recent decades have further cemented this consensus. See generally Soc'y for Maternal-Fetal Med. Br.

Accordingly, in the thirty years since Casey, no major medical organization has accepted the views of the State and its amici about pre-viability fetal pain. That is because Mississippi relies on a definition of pain that international consensus rejects, and because it relies on the scientifically untenable position that the cortex is not necessary for conscious awareness of pain. See id.; see also e.g., Whole Woman's Health All. v. Rokita, 2021 WL 3508211, at *64 (S.D. Ind. Aug. 10, 2021) (describing opinion about fetal pain offered by Dr. Condic - the same expert the State proffered here - as a “‘fringe view’ within the medical community”); EMW Women's Surg. Ctr. v. Meier, 373 F. Supp.3d 807, 823 (W.D. Ky. 2019) (rejecting contention that fetal pain is possible before 24 weeks as contrary to consensus of medical community), aff'd 960 F.3d 785 (6th Cir. 2020).¹⁴

*34 Third, assertions about fetal development and fetal pain are, in truth, rooted in philosophic arguments that abortion is “inhumane” and can be banned entirely. See, e.g., Appellants Br., Jackson Women's Health Org., 2019 WL 1208918, at *26 (5th Cir. Mar. 6, 2019). But as the Court explained in Casey, because pregnancy so intensely impacts a woman's bodily integrity, these philosophic arguments cannot be resolved in such a “way that a woman lacks all choice in the matter,” 505 U.S. at 850, and her liberty interests are categorically stronger than any state interest before viability, id. at 852-53.

Mississippi claims that modern contraception and policy changes have “dulled concerns” about women's equal status in society, rendering abortion unnecessary. Petrs. Br. 29. These claims are both false and paternalistic.

*35 First, the State misunderstands the nature of the right at issue, which is the ability to decide if, when, and how many children to have. No policy change has, or even could, render such decisions unnecessary for the millions who make them each year. Indeed, one in four women have made the decision to end a pregnancy in their lifetimes.¹⁵

Second, Mississippi is wrong on the facts. Contraception is not universally accessible or affordable in the United States, particularly for young people and people who are poor or living with low incomes. See generally Nat'l Women's Law Ctr. (“NWLC”) Br.; Economists Br. Nor is contraception ever fail-safe. See generally NWLC Br.

Further, many indicators of gender equality continue to lag behind the ideal Mississippi imagines. Pregnancy and caregiver discrimination persist and remain difficult to root out. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 731, 736 (2003); see also generally NWLC Br. Women - whether they be lawyers or other professionals or blue-collar workers - still bear the disproportionate share of child-raising duties. See generally NWLC Br. Women are more likely to be poor than men, they continue to be underpaid compared to men, their lifetime earnings (unlike men's) decrease after having children, and they remain underrepresented at the highest levels of power, including in Congress, on the judiciary, in private law firms, and in the boardroom. See generally id.; Organizations of Women Lawyers Br.

*36 Third, the State's suggestion that gains in women's status somehow support taking away their right to make basic decisions about their lives and their bodies is nonsensical. Even if the claim that the United States had achieved full gender equality were true (it is not), those gains were made while the Court has steadfastly reaffirmed the right to abortion. See generally, e.g., Economists Br. Further, that policy changes may have decreased discrimination against pregnant people and provided limited support to parents through unpaid leave and a modest tax credit, see Petrs. Br. 35, is no justification for overriding an individual's decision to end a pre-viability pregnancy.

Even if contested, constitutional rights that have “become embedded” in “our national culture” are entitled to heightened stare decisis effect. Dickerson v. United States, 530 U.S. 428, 443 (2000); see also South Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting) (“[T]he respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity.”); Gamble, 139 S. Ct. at 1969 (similar). Indeed, it is critical that such precedent hold firm in the face of efforts to “thwart [the] implementation” of a longstanding right. Casey, 505 U.S. at 867.

Such is the case here. Casey recognized that “for two decades of economic and social developments, *37 people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” Id. at 856. That is even truer today, as women's own experiences, social science research, and federal jurisprudence have further cemented that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Id.

In particular, young women (of all socioeconomic backgrounds), women of color, and women who are poor or living with low incomes are more likely to experience unplanned pregnancies and accordingly are more likely to need abortion care.¹⁶ In fact, more than half of people who obtain abortion care are in their twenties; most are already parents.¹⁷ The most common reasons for ending a pregnancy include concerns about economic security, the desire to finish an education, and responsibilities to current children or other family members. See generally Social Science Experts Br.¹⁸

*38 Consider just one person's reflection in a brief to the Court: “Becoming a first-generation professional would have been impossible without access to safe and legal abortion services.” Michelle Coleman Mayes, et al., & 350 Other Legal Professionals Br., June Med. Servs., 2019 WL 6650222, at **8-9 (Dec. 2, 2019). “The ability to make my own choice, to even have a choice” made college available “as a path to being able to provide a better life for... future children.” Id.; see also generally Abortion Stories Br.

*39 That the right guaranteed by Casey and Roe is critical to women's equality is clear from the impact on those who make the decision to end a pregnancy but are denied the ability to do so. Women who are denied an abortion:

● may lose educational opportunities;²⁰

● face decreased opportunities to pursue their full career potential and take an active role in civic life;²¹

● are more likely to experience violence from the man involved in the pregnancy;²²

● are more likely to experience economic insecurity and raise their existing children in poverty;²³

*40 ● are more likely, as pregnant women and mothers, to experience economic harms, despite modest changes to workers' protections.²⁴

*41 In response to these well-documented facts, the law has increasingly recognized that women's ability to control if, when, and how many children they have is critical to gender equality. See, e.g., Morales-Santana, 137 S. Ct. at 1692-93 (laws based on “[s]tereotypes about women's domestic roles” and other “generalizations about the different talents, capacities, or preferences of males and females” are “anachronistic”); Hibbs, 538 U.S. at 731, 736 (“the pervasive sex-role stereotype that caring for family members is women's work” undergirds “subtle discrimination” against women as “mothers [and] mothers-to-be” “that may be difficult to detect on a case-by-case basis,” and which damages women's professional opportunities); United States v. Virginia, 518 U.S. 515, 533-34 (1996) (“Physical differences” between sexes may not be relied upon “to create or perpetuate the legal, social, and economic inferiority of women”); cf. Nat'l Coal. for Men v. Selective Serv. Sys., 141 S. Ct. 1815 (June 7, 2021) (Sotomayor, J., joined by Breyer and Kavanaugh, J.J., concurring). These understandings have been essential to the incremental advancements the Nation has made since Casey towards gender equity.²⁵

*42 Accepting Mississippi's request to abandon the viability line would turn back the clock for generations who have never known what it means to be without the fundamental right to make the decision whether to continue a pregnancy. Any answer to the question presented other than a categorical “yes” would shatter the understanding women have held close for decades about their bodies, their futures, and their equal right to liberty.

*43 A party asking this Court to take the grave step of overruling a rule of law - one that has been repeatedly reaffirmed - should at least propose and seriously develop an alternative legal framework. Cf. Fulton v. City of Phila., 141 S. Ct. 1868, 1882-83 (2021) (Barrett, J., concurring). All the more so here. In recent years, several states have enacted laws banning abortion at every pre-viability stage of pregnancy, from 6 weeks to 20 weeks - asserting a variety of alleged justifications for those bans.²⁶ See, e.g., Texas et al. Br. at 32 n.2 (citing over 20 states' previability bans); see also, e.g., Whole Woman's Health v. Jackson, No. 21A24, 594 U.S. ___ (Sept. 1, 2021) (considering six-week ban from Texas). Missouri, for example, has enacted a cascading ban that prohibits abortion at or after 8, 14, 18, and 20 weeks of pregnancy.²⁷ See Reprod. Health Servs. of Planned Parenthood of the St. Louis Region v. Parson, 1 F.4th 552, 557 (8th Cir. 2021) (affirming preliminary injunction), rehearing en banc granted, op. vacated (July 13, 2021). Some states have gone further and already enacted complete bans on abortion.²⁸ At least a dozen, including Mississippi itself, have in place laws that are intended to spring into effect and ban abortion immediately when and if this Court overrules Roe and Casey.²⁹

Yet Mississippi devotes just a few pages at the end of its brief to purported “alternatives” to the viability line. Its barebones discussion of its proposed alternatives highlights that any abandonment of viability would be no different than overruling Casey and Roe entirely.

Mississippi first proposes the Court hold that the Ban satisfies “any level of scrutiny” and “leave for another day” a decision of what level of scrutiny actually applies to pre-viability bans. Petrs. Br. 46. In place of the stable rule prohibiting pre-viability bans that courts have uniformly applied for a half-century, this proposal would leave women, state officials, and the lower courts at sea.

1. The states that have enacted abortion bans defend them on the same grounds that Mississippi puts *44 forward here. In fact, Mississippi itself makes similar arguments to this Court as it made to the lower courts in support of its 6-week ban. See Appellants Br., Jackson Women's Health Org., 2019 WL 4238421, at **23-27 (5th Cir. Aug. 28, 2019). And Mississippi likely would make similar arguments in defense of a ban on abortion at virtually any point in pregnancy. For example, it urges the Court to hold that its interests in prohibiting pre-viability abortion are compelling at 15 weeks, because that is “when risks to women have increased considerably.” Petrs. Br. 46. Yet its legislative findings state that “[a]fter 8 weeks' gestation, abortion's risks ‘escalate exponentially.”’ Petrs. Br. 8. Mississippi also claims its interest in “unborn life” is compelling at 15 weeks because that is when “basic physiological functions [of the fetus] are all present.” Petrs. Br. 46. But according to its legislative findings, “[a]t 9 weeks, ‘all basic physiological functions are present.”’ Petrs. Br. 7; compare also, e.g., Petrs. Br. 46 (asserting a compelling interest at 15 weeks because that is when “vital organs are functioning”), with Petrs. Br. 7 (stating “[a]t 10 weeks, ‘vital organs begin to function”’).

2. Stripped of the viability line, how would federal courts evaluate these arguments on a case-by-case basis? What state interests would count as compelling or otherwise sufficiently strong to categorically outweigh the individual liberty interest at stake? As Casey emphasized: “State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution.” 505 U.S. at 845. Adopting the State's proposal would provide none.

*45 The State's “strict scrutiny” argument here illustrates the point. It says that the Court should uphold laws prohibiting abortion before viability as the least restrictive means of serving states' interests. See Petrs. Br. 46. But, under any accepted understanding of strict scrutiny, the Ban cannot be a narrowly tailored means of advancing the State's interest in reducing abortion after 15 weeks - particularly when it coexists with other Mississippi laws that impede access to earlier abortion. Indeed, the State's own evidence highlights that reducing barriers to earlier abortion would be a less restrictive measure by which it could pursue its asserted interests. See Bartlett at 736, D. Ct. Dkt. 85-6.³⁰ So any decision from this Court upholding the 15-week ban under means-ends scrutiny would signal that anything goes - or at least that any ban would have a chance of surviving in court.

The fallout would be swift and certain. As abortion bans are enforced - or the threat of enforcement looms - large swaths of the South and Midwest would likely be without access to legal abortion. Some people with the means to travel may be able to access legal abortion - but only after crossing multiple state lines. (Mississippians, for example, would have to travel at least two states away to reach the closest *46 place abortion would likely remain legal. See generally e.g., Economists Br.) Others would end their own pregnancies outside the medical system, which could expose them and anyone who helps them to criminal investigation and prosecution. See generally Current & Former Prosecutors Br. Some would attempt abortion by unsafe or ineffective methods. See generally ACOG Br. Fear of arrest or prosecution could deter those who then need medical help from seeking it, endangering their health and safety. See id. For many, the barriers will simply be too high, and they will be forced to endure the substantial risks of continued pregnancy and childbirth. See id.

People would be harmed, and chaos would ensue, even in states that claim not to be prohibiting abortion directly. For example, Texas now has a law that exposes anyone who “aids or abets” an abortion as early as 6 weeks to the risk of being dragged into court to defend against massive fines. See, e.g., S.B. 8 § 3 (codified at Tex. Health & Safety Code § 171.208(a)). Other states, including Mississippi, intend to follow suit, attempting to bring abortion care to a halt.³¹

Even broader upheaval would follow. State attempts to advance an interest in protecting fetal life by policing its residents' access to abortion beyond their borders would no doubt arise. So too would efforts to restrict certain forms of contraception, in pursuit of an interest in protecting potential life. Cf. e.g., *47 Casey, 505 U.S. at 859 (some “forms of contraception” may implicate “postconception potential life”).

The State's proposal to uphold the 15-week ban under an “undue burden” analysis is equally unprincipled and unworkable. Mississippi suggests that states may prohibit abortion before viability if doing so does not prevent a “significant number” of people from obtaining abortion. Petrs. Br. 47. And the State maintains that the Ban meets this rights-by-num-bers test because “4.5% of the women who obtained abortions [from the Providers in 2017] did so after 15 weeks.” Id. This reasoning is incompatible with continuing to recognize an individual constitutional right to decide whether to continue a pregnancy and irreconcilable with this Court's treatment of other constitutional rights more generally. It would also require this Court to draw a new line in a purely legislative manner.

1. To begin, the State offers a half-hearted suggestion that its “undue burden” approach would “draw some support” from precedent. Petrs. Br. 47. But this proposal - just like Mississippi's first one - directly conflicts with Casey's assurance that “adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade” that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy” up until viability. 505 U.S. at 879 (emphases added); see also June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment).

*48 The State's proposal further conflicts with Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), Stenberg v. Carhart, 530 U.S. 914 (2000), and Gonzales v. Carhart, 550 U.S. 124 (2007). Each holds that states may not prohibit pre-viability abortion at any point in the second trimester, even though, as was true then and is true today, most people obtain abortions in the first trimester.³² And, contrary to the State's claims that Gonzales supports the validity of a pre-viability ban, Petrs. Br. 44, Gonzales upheld a prohibition of one rarely-used abortion method only because the Court found that the standard method used throughout the second trimester remained available. 550 U.S. at 150-54. Indeed, the restriction in Gonzales did not prohibit any person from obtaining an abortion until viability. Compare Stenberg, 530 U.S. at 938-39, 945-46. Accordingly, Gonzales, too, applied the rule announced decades earlier: laws that prohibit abortion at any point before viability “strike at the right itself' and cannot stand. 550 U.S. at 157-58 (quoting Casey, 505 U.S. at 874); see also id. at 158 (“The three premises of Casey must coexist.”).

2. Mississippi also says that the Ban impacts “only one week” of procedures - referring to the fact *49 that the Providers offer abortion services to 16 weeks. Petrs. Br. 47. But that is no limiting principle. Does the State really mean to suggest that if providers in another state offered care to 17 or 18 weeks, a 15-week ban would then be unconstitutional? What if other states banned abortion at different pre-viability points of pregnancy, and then amended those bans from year to year, based purely on whether abortion was currently available there at 10 weeks, 14 weeks, or 20 weeks? These questions are sure to arise in nearly every permutation. The recent enactment of Texas S.B. 8 - and other states' pronouncements that they will consider similar laws - should make that plain.

More fundamentally, the State's brute numbercrunching is at odds with the recognition of constitutional rights in general. The very essence of a constitutional right is that the government cannot outright prohibit a certain subset of people, no matter how small, from exercising that right.

The Second Amendment, for example, would not tolerate a ban on owning handguns in studio apartments, even if only 4.5% of people lived in such dwellings. The recognition of the right to self-defense in the home deprives legislatures of “the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U.S. at 634. Campaign expenditures over $1,000,000 could not be prohibited on the ground that only a tiny percentage of Americans wanted to make such expenditures. Cf. McCutcheon v. Fed. Election Comm'n, 572 U.S. 185 (2014). Warrantless investigatory stops and searches could not be sanctioned on a particular roadway on *50 the ground that few people in the state really need to travel along that thoroughfare. Cf. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Other examples abound. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (invalidating state statute prohibiting flag burning, with no mention of how many engage in such activity); Eisenstadt, 405 U.S. at 453 (holding unconstitutional prohibition on distribution of contraceptives to single people because, “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”) (emphasis added).

There are no half-measures here. Each of the State's purported alternatives would upend the balance struck in Casey and ultimately extinguish “the woman's liberty to determine whether to carry her pregnancy to full term.” 505 U.S. at 869-70. Put another way, upholding the Ban under either “alternative” rationale the State offers would lead to the same thing: attempts by half the states in the Nation to forbid abortion entirely, and a judiciary left without tools to manage the resulting litigation. The only way to avoid that outcome is to recognize, as the Court reaffirmed thirty years ago, that “a State's interest in the protection of [fetal] life falls short of justifying any plenary override of [the] individual liberty claims” at stake here. Id. at 857. Until viability, a state may regulate, but not ban, abortion.

The judgment of the court of appeals should be affirmed.

*52 Jeffrey L. Fisher

O'MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

Anton Metlitsky

O'MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

Claudia Hammerman

Alexia D. Korberg

Aaron S. Delaney

PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP

1285 Avenue of the Americas

New York, NY 10019

Respectfully submitted,

Julie Rikelman

Hillary Schneller

Jenny Ma

Jiaman (Alice) Wang

September 20, 2021

The right to make decisions about whether to end a pregnancy is grounded in both the Due Process and Equal Protection Clauses. In Casey, this Court *6 of the Nation” is dependent on “their ability to control their reproductive lives.” 505 U.S. at 856. Indeed, because of the physical, emotional, spiritual, economic, and social stakes of pregnancy and motherhood, the State cannot “insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and of our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Id. at 852; see also Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting) (“[L]egal challenges to undue restrictions on abortion procedures ... center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship ....”).⁶

And just last Term, Justice Sotomayor recognized the equality interests at stake in accessing abortion. Justice Sotomayor observed that “[t]his country's laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” imposing “an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose.” FDA v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 585 (2021) (Sotomayor, J., dissenting) (citing Gonzales, 550 U.S. at 172 (Ginsburg, J., dissenting)). *7 Those undue burdens are often most severe for low-income women and women of color. Id. at 582.

Accordingly, Justices of this Court have long acknowledged the fundamental equality principles that underlie the constitutional right to an abortion. Similarly, and over time, the Court has applied its prohibition on discriminatory sex-based classifications to laws regulating pregnancy. As amici explain in further detail below, HB 1510 violates those equality principles by imposing an unjustified and profoundly dangerous sex-based restriction on a woman's right to control her own reproductive life.⁷

Throughout much of American history, belief in traditional gender roles has shaped the Nation's laws, including the assumptions that “a woman is, and should remain, ‘the center of home and family life,”’ and that “‘a proper discharge of [a woman's] maternal *8 functions ... justif[ies] [protective] legislation,”’ Hibbs, 538 U.S. at 729 (third alteration added) (citing Hoyt v. Florida, 368 U.S. 57, 62 (1961), and Muller v. Oregon, 208 U.S. 412, 422 (1908)). Those sex-role stereotypes led three members of this Court to insist that “[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment) (upholding a state's denial of a law license to a woman because of her sex).

Fifty years ago, this Court changed course and began to strike down sex-based state action that enforced these traditional gender stereotypes as unconstitutional under the Equal Protection Clause. See Reed v. Reed, 404 U.S. 71, 76 (1971); Frontiero v. Richardson, 411 U.S. 677, 684-85 (1973) (plurality opinion) (citing Bradwell as evidence of the Nation's “long and unfortunate history of sex discrimination”). The Court did not initially give a clear account of how pregnancy-based regulations perpetuate these stereotypes. See Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974). But as the Court gained experience interpreting the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2018), it began to explain how certain laws regulating pregnancy could be based on impermissible sex-role stereotypes, see Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 289-90 (1987) (Marshall, J.) (upholding a state law mandating a reasonable, unpaid pregnancy disability leave as consistent with the Pregnancy Discrimination Act and Title VII because it “promotes equal employment opportunity” and “does not reflect archaic *9 or stereotypic notions about pregnancy and the abilities of pregnant workers”).

The Court thereafter made clear that equal protection principles apply with equal force to pregnancy-based classifications. Justice Ginsburg's landmark decision in United States v. Virginia recognized that pregnancy-based regulations, too, are sex classifications subject to scrutiny under the Equal Protection Clause. See Virginia, 518 U.S. at 533-34 (citing Cal. Fed., 479 U.S. at 289). In Virginia, the Court held that sex classifications cannot be justified by physical differences between men and women. The Court affirmed that the Constitution's equality guarantees extend to women as men's equals, regardless of any “inherent differences” between the sexes. Those “[i]nherent differences,” the Court explained, “remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” Id.

Not every sex classification, the Court reasoned, was constitutionally infirm. Sex classifications that “promot[e] equal employment opportunity” or “advance [the] full development of the talent and capacities of our Nation's people”-like the state law establishing unpaid pregnancy disability leave at issue in Cal. Fed.-are permissible. Id. at 533 (quoting Cal. Fed., 479 U.S. at 289 (first alteration in original)). But the Court in Virginia held that the Constitution's guarantee of equal protection means that sex “classifications may not be used, as they once were ... to create or perpetuate the legal, social, and economic *10 inferiority of women.” Id. at 534 (internal citation omitted).

Seven years later, Chief Justice Rehnquist elaborated on Virginia's logic, further confirming that the Equal Protection Clause applied to laws regulating pregnancy. In Hibbs, the Court held that Congress could enact the Family and Medical Leave Act to remedy and prevent inequality in the provision of family leave because historically, “ideology about women's roles” had been used to justify discrimination against women particularly when they were “mothers or mothers-to-be.” 538 U.S. at 736 (citation omitted).

Hibbs made clear that pregnancy-based regulations anchored in archaic stereotypes about gender roles can violate the Equal Protection Clause. As Chief Justice Rehnquist put it, the “differential [maternity and paternity] leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work.” Id. at 731. Laws perpetuating such sex-role stereotypes injured women and men. And “[t]hese mutually reinforcing stereotypes,” the Chief Justice recognized, “created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver.” Id. at 736 (“Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave.”).

Taken together, Virginia and Hibbs establish that laws regulating pregnancy are sex-based classifications that violate the Equal Protection *11 Clause when they are rooted in sex-role stereotypes that injure or subordinate. See Reva B. Siegel, The Pregnant Citizen, from Suffrage to the Present, 19TH AMENDMENT SPECIAL EDITION GEO. L.J. 167, 189-211 (2020); see also id. at 208 & n.229 (explaining Geduldig's status after Virginia and Hibbs).

HB 1510 singles out pregnant women for coercive regulation. By its terms, the law is designed to deprive women, and not men, of their right to make choices about whether or not to have children.

Because Mississippi has chosen “discriminatory means” to protect health and life, the State must satisfy heightened scrutiny by offering an “exceedingly persuasive” justification for its choice of means that does not rely on “overbroad generalizations” about the differences between sexes. Virginia, 518 U.S. at 533. In scrutinizing sex-based state action for impermissible sex stereotyping, the Virginia standard examines the law's historical context and the State's decision-making in a larger policy context to ascertain whether the State's sex-based classification is being used “to create or perpetuate the legal, social, and economic inferiority of women.” Id. at 534.⁸

*12 HB 1510 does not satisfy heightened scrutiny for at least two reasons. First, considered in historical context, the State's legislative findings reflect “ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited.” Gonzales, 550 U.S. at 185 (Ginsburg, J., dissenting). See infra Part II. Second, relying on these traditional sex roles, the State assumed it could protect fetal life and the health of women by prohibiting abortion after 15 weeks. But gripped by those stereotyped beliefs, Mississippi failed to adopt many alternative, less discriminatory means of reducing abortion and supporting those who seek to raise children. See infra Part III.

Petitioners insist that Roe and Casey “shackle States to a view of the facts that is decades out of date.” Pet. Br. 4. To the contrary, Mississippi's own logic and its laws are anchored in the past.

Today, as in the past, advocates of laws like HB 1510 argue that restricting abortion will protect fetal life and protect women-all while denying that limiting abortion access risks hurting women.⁹ See *13 Miss. H.B. 1510 § 1(2)(b)(i) (finding that banning abortion protects fetal life); id. § 1(2)(b)(ii)-(v) (finding that banning abortion protects women).

These justifications are not new. The nineteenth-century anti-abortion campaign, too, claimed that regulating abortion would protect women's physical and psychological health. The anti-abortion campaign shows how a call to protect a pregnant woman's health can function as an effort to enforce a woman's role as mother. Most importantly, the campaign demonstrates how seemingly benign concerns can be deeply entangled with wholly unconstitutional reasons for compelling a woman to bear a child. See Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 280-323 (1992) (showing how nineteenth-century doctors argued that banning abortion would protect fetal life, protect a woman's health, enforce wives' marital duties, and control the relative birthrates of “native” and immigrant populations, in order to preserve the demographic character of the nation); see also infra Part IV.

In the nineteenth century, the physician who led the campaign to ban abortion, Dr. Horatio Storer, claimed that childbearing was “the end for which [married women] are physiologically constituted and for which they are destined by nature.” See HORATIO STORER, WHY NOT? A BOOK FOR EVERY WOMAN 75-76 (1866); JAMES C. MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY, 1800-1900, 78, 89, 148 (1978) (recounting Storer's role in persuading Americans to ban abortion). According to Storer, avoiding this pre-ordained biological and social role would lead to a woman's physical and social ruin. See STORER, supra, at 37 (“[A]ny infringement of [natural laws] must necessarily cause derangement, disaster, or ruin.”); H.S. POMEROY, THE ETHICS OF MARRIAGE 97 (1888) (“Interference with Nature so that she may not accomplish the production of healthy human beings is a physiological sin of the most heinous sort ....”). The American Medical Association's 1871 Report on Criminal Abortion denounced a woman who ended a pregnancy: “She becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract.” D.A. O'Donnell & W.L. Atlee, Report on Criminal Abortion, 22 TRANSACTIONS AM. MED. ASS'N 239, 241 (1871).

During this same time, doctors further justified controlling women's roles by asserting women's incompetence to make their own decisions about sex and childbearing. Because they understood *15 childbearing as the “end for which [women] are psychologically constituted and for which they are destined by nature,” anti-abortion advocates claimed that termination of pregnancy is “disastrous to a woman's mental, moral, and physical well-being.” STORER, supra, at 75-76. The notion that interrupting a pregnancy produced feminine hysteria followed neatly from the premise that women lack decisional capacity to choose to avoid motherhood. See E.P. Christian, The Pathological Consequences Incident to Induced Abortion, 2 DETROIT REV. MED. & PHARMACY 145, 146 (1867) (noting that “violence against the physiological laws of gestation” would cause a “severe and grievous penalty” because of “the intimate relation between the nervous and uterine systems manifested in the various and frequent nervous disorders arising from uterine derangements”). Further, the choice to avoid motherhood was believed to confer “a moral as well as a physical taint” that “stamps its effects indelibly on the constitution of the female.” J.J. Mulheron, Foeticide: A Paper Read Before the Wayne County Medical Society, 10 PENINSULAR J. MED. 385, 390 (1874).

And just as women's minds were supposedly irrevocably and deleteriously affected by abortion, so too were their bodies. Physicians claimed that abortion would “insidiously undermine[]” women's reproductive organs, and “permanently incapacitate[] [women] for conception.” STORER, supra, at 50. A woman who has an abortion “destroys her health ... [and] sooner or later comes upon the hands of the physician suffering with uterine disease.” O.S. Phelps, Criminal Abortion: Read Before the Calhoun County Medical Society, 1 DETROIT LANCET 725, 728 (1878). *16 According to anti-abortion advocates, these and other health issues were a “direct result of this interference with nature's laws.” L.D. Griswold et al., Additional Report from the Select Committee to Whom Was Referred S.B. No. 285, 1867 OHIO SENATE J. APPENDIX 233, 234 (emphasis added). It should come as little surprise that “[s]tatements hostile to the woman's rights movement appeared in many of the anti-abortion tracts penned by America's doctors and their supporters.” Siegel, Reasoning from the Body, supra, at 303; see generally id. at 302-14.¹⁰

HB 1510 recites Mississippi's interests in banning abortion to protect fetal life and women's health. See Miss. H.B. 1510 § 1(2)(b)(i)-(ii). Although the State does not employ nineteenth-century rhetoric in its legislative findings, its asserted justifications for HB 1510 are a modern twist on the same old sex-role *17 stereotypes that animated anti-abortion campaigners in centuries past.

Like nineteenth-century physicians, Mississippi assumes that women are incapable of deciding for themselves how to balance the comparative health risks and emotional burdens of continued pregnancy, childbirth, and abortion. For instance, the legislative findings in HB 1510 declare that “[a]bortion carries significant physical and psychological risks to the maternal patient,” including “depression; anxiety; substance abuse; and other emotional or psychological problems.” Id. § 1(2)(b)(ii), (iv). The State Legislature further asserts that the “medical, emotional, and psychological consequences of abortion are serious and can be lasting.” Id. § 1(2)(b)(v) (internal quotation marks omitted); see Pet. Br. 8.

That unsupported assertion reflects the same stereotypical view of women's fragile, maternal psyche espoused by nineteenth-century anti-abortion advocates. Meanwhile, the mental and emotional stress of pregnancy, childbirth, and caring for children-in an economy that discriminates against mothers and pregnant people-go entirely unmentioned. See Stephen Benard et al., Cognitive Bias and the Motherhood Penalty, 59 HASTINGS L.J. 1359, 1359-61 (2008). Rather than leave judgments about how to balance these risks to women, Mississippi has decided to make the decision for itself, banning abortions after 15 weeks on the ground that doing so is in the psychological best interests of the “maternal patient.” Miss. H.B. 1510 § 1(2)(b)(ii).

There is a second, even more fundamental, sex-role assumption underlying HB 1510. As the Court in *18 Virginia recounted, it was commonplace for nineteenth-century doctors to argue that women who violated sex roles (e.g., by pursuing higher education) risked jeopardizing their reproductive physiology. See Virginia, 518 U.S. at 536-37 & n.9. The physicians in Storer's campaign repeatedly warned of the litany of health harms that would attend a woman's deviation from her reproductive destiny. See supra Part II.A. The reasoning Mississippi offers for banning abortion after 15 weeks-to protect the health of the “maternal patient,” Miss. H.B. 1510 § 1(2)(b)(ii), (iii), echoes the sex-role assumptions of the nineteenth-century anti-abortion campaign: a pregnant woman's “health” will suffer if she deviates from her natural maternal role. But whatever health risks may be associated with abortion (on one hand) and bearing children in Mississippi (on the other), the choice of whether to assume those risks and how to weigh them belongs to women and not the State.

Moreover, when Mississippi claims that abortion in the second trimester is more dangerous than childbirth, id. § 1(2)(b)(iii), it appears to be making an empirical claim. In fact, Mississippi is appealing to the traditional sex-role assumption that a woman will suffer if she chooses to avoid her natural maternal role. If its claim were genuinely based in science, the State would address the scientific finding that childbirth is many times more dangerous than abortion-as this Court and others have recognized. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2315 (2016) (observing that “[n]ationwide, childbirth is 14 times more likely than abortion to result in death”); Siegel, Why Restrict Abortion?, supra (manuscript at 49-50 & n.259) (describing Judge *19 Richard Posner and others criticizing an anti-abortion expert for persistently, and falsely, claiming that abortion is more dangerous than pregnancy). See generally Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 OBSTETRICS & GYNECOLOGY 215 (2012) (concluding that the risk of death associated with childbirth is approximately 14 times higher than with abortion). See infra Part III.

While the justifications undergirding HB 1510 may superficially be couched in the language of health and science, even a cursory examination of the relevant historical context reveals that the State's justifications are just re-packaged versions of the same sex-role stereotypes used by nineteenth-century anti-abortion advocates. Thus, HB 1510 carries forth a long and unfortunate tradition of state-sponsored paternalism, in which the coercive control of a woman is justified as an act of benign solicitude. See Frontiero, 411 U.S. at 684 (explaining that traditional forms of sex discrimination were “rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women not on a pedestal, but in a cage”).

To be clear, Mississippi may surely protect the health of women and the next generation, but in seeking to achieve these important ends, the State may “not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U.S. at 533. Those are precisely the assumptions about women on which HB 1510 relies in presenting coercion as protection. These well-worn sex-role stereotypes may be archaic, but they are anything but quaint: when these sex-role *20 stereotypes are enforced through a law restricting abortion, they can deprive a woman of her autonomy, her job, her health, and even her life.

Mississippi employed sex-discriminatory means to achieve its goals of protecting women's health and protecting fetal life. Virginia requires the State to demonstrate that its choice of sex-discriminatory means is “substantially related to the achievement of” important government ends, by advancing an “exceedingly persuasive justification” that does not rely on sex-role stereotypes. See Virginia, 518 U.S. at 533-34. It cannot make that showing here.

Mississippi could have employed many policy means to reduce abortion and protect the health of women and children. Relying on available federal funds, it could have provided appropriate and effective sex education and expanded access to contraception; it could have expanded access to health insurance and provided assistance to needy families. But instead, Mississippi has restricted abortion access.

In its belief that banning abortions at 15 weeks would protect both the fetus and the health of the pregnant woman-a belief that is itself rooted in stereotypes about women's roles as child bearers before all else-Mississippi pushed women who seek to end pregnancies into harm's way by compelling *21 pregnancy and childbirth, when the State could have pursued its ends by alternate, less discriminatory means. The State singled out women who sought to end pregnancy instead of pursuing its ends by aiding those who want to avoid parenthood and supporting those who want to raise children.

Because Mississippi so heavily relied on sex-role stereotypes to enact a law that singled out and harmed women, the State has not demonstrated that its ban on abortion after 15 weeks is “substantially related” to important ends. Instead, the State's reliance on sex-role stereotypes led it to protect through coercion, which in turn “perpetuate[s] the legal, social, and economic inferiority of women.” Id.

Mississippi seeks to protect women and fetal life by banning abortion after 15 weeks. But the ban it has adopted to achieve those ends actually jeopardizes, rather than protects, the health of women.

Not only does HB 1510 take from women control over their life decisions, as nineteenth-century doctors preached, it subjects women to myriad health harms in a State where the social safety net makes grossly inadequate provision for women or children. See Michele Goodwin, Banning Abortion Doesn't Protect Women's Health, N.Y. TIMES (July 9, 2021), https://www.nytimes.com/2021/07/09/opinion/roe-abortion-supreme-court.html.

The risks of compelled pregnancy are considerable, in a state where the maternal mortality rate is *22 alarmingly high, averaging 33.2 deaths for every 100,000 live births. MISS. STATE DEP'T OF HEALTH, MISS. MATERNAL MORTALITY REPORT 10 (2019), https://msdh.ms.gov/msdhsite/index.cfm/31,8127,299, pdf/Maternal_Mortality_2019_amended.pdf.

Pregnancy in Mississippi presents particular risks for Black women, who accounted for “nearly 80 percent of pregnancy-related cardiac deaths” between 2013 and 2016. Id. at 16. The pregnancy-related mortality rate for Black women was nearly three times the rate for white women. Id. at 12 (ranging from 51.9 to 61.4 deaths per 100,000 live births compared to 18.9 to 36.7 deaths per 100,000 live births).

Forcing pregnancy and childbirth onto women against their will places their health and lives at risk. HB 1510, therefore, does not promote-let alone substantially relate to-Mississippi's claimed goal of promoting women's health.

Mississippi had many policy alternatives for protecting the health of women and families. But in considering the many options before it, the State has consistently rejected noncoercive opportunities to improve the health of mothers and infants, even declining federal monies available to support these ends. The consequences are especially dire for Black mothers and infants. Despite the increased risks they face in Mississippi, the State has repeatedly declined *23 to enact policies that could improve their health and wellbeing.

1. Access to regular health care and checkups could reduce maternal deaths by up to 60%. Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, 68 MORBIDITY AND MORTALITY WEEKLY REPORT 423 (May 10, 2019). Lack of care can be deadly for newborns-the U.S. Department of Health and Human Services found that newborns whose mothers had no early prenatal care are almost five times more likely to die. See Dep't of Health & Hum. Servs. Off. on Women's Health, PRENATAL CARE, https://www.womenshealth.gov/a-z-topics/prenatal-care (Apr. 1, 2019).

Yet ensuring access to health care is largely dependent on income and insurance coverage, and Medicaid expansion under the Affordable Care Act (ACA) has been shown to reliably improve insurance access. Jamie R. Daw et al., Medicaid Expansion Improved Perinatal Insurance Continuity for Low-Income Women, 39 HEALTH AFFS. 1531 (Sept. 2020). Increasing access to Medicaid could not only reduce maternal and infant deaths, but could also give a pregnant person lacking alternative health insurance the security to continue an unplanned pregnancy and to cope with delivery and postpartum care.

Mississippi, however, has refused to expand Medicaid under the ACA, compromising health care access for under-resourced Mississippians. Sarah Varney, How Obamacare Went South in Mississippi, THE ATLANTIC (Nov. 4, 2014), https://www.theatlantic.com/health/archive/2014/11/how-obamacare-went-south-in-mississippi/382313/. *24 This policy decision left an estimated 138,000 otherwise eligible people without health coverage and deprived the state of an estimated $1.2 billion in federal funds.

Ironically, after signing HB 1510, then-Governor Phil Bryant announced that he was “committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal.” Jenny Gathright, Mississippi Governor Signs Nation's Toughest Abortion Ban into Law, NAT'L PUB. RADIO (Mar. 19, 2018), https://www.npr.org/sections/thetwo-way/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law. But, in reality, Mississippi's refusal to accept federal funding to provide health care for its residents directly contributes to its startlingly high infant and maternal mortality rates, especially in communities of color.¹¹

2. Lack of financial resources is among the most common reasons that women provide for ending a pregnancy. See M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13 BMC WOMEN'S HEALTH 29 (2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3729671. The Temporary Assistance for Needy Families (TANF) program, which provides grants to support low-income families with children, enables Mississippi to channel *25 federal monies to its low-income residents. Participating in TANF offers a clear, noncoercive means of empowering people to choose to continue pregnancy with resources to support dependent family members.

Remarkably, despite this opportunity to support at least some women in choosing to continue pregnancies and to reduce the nation's highest child poverty rate, in 2019, Mississippi spent only about five percent of its TANF funds on direct assistance to families. Ali Safawi, Mississippi Raises TANF Benefits but More Improvements Needed, Especially in South, CTR. FOR BUDGET & POL'Y PRIORITIES (May 4, 2021), https://www.cbpp.org/blog/mississippi-raises-tanf-benefits-but-more-improvements-needed-especially-in-south. And the number of poor families receiving TANF has declined precipitously: less than 3,000 families received the maximum benefit of $170 per month by 2021, down from 23,700 families in 1999. See Anna Wolfe, Mississippi Found ‘Absurd’ Ways to Spend Welfare on Anything but the Poor. These Bills Would Put More Money into Families' Pockets, MISS. TODAY (Jan. 29, 2021), https://mississippitoday.org/2021/01/29/mississippi-found-absurd-ways-to-spend-welfare-on-anything-but-the-poor-these-bills-would-put-more-money-into-families-pockets.¹² Until 2021, *26 Mississippi maintained the lowest TANF benefit levels in the nation, refusing for decades even to adjust for inflation. Id.

Moreover, many women who decide to end a pregnancy are poor and low-income mothers who fear that having another child will compromise their ability to provide for the children they already have. Mississippi preserves policies that reinforce those genuine concerns. For instance, the State maintains a family cap, limiting TANF benefits for additional children born into families that receive public assistance. Mississippi's family cap survives despite evidence that these policies “harm children's health” and “deepen poverty,” evidence that has prompted their repeal in many states. Teresa Wiltz, Family Welfare Caps Lose Favor in More States, PEW STATELINE (May 3, 2019), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/05/03/family-welfare-caps-lose-favor-in-more-states.

3. Information about and access to contraception lowers rates of unplanned pregnancies. But rather than provide effective sex education and contraceptive access, Mississippi continues to promote abstinence-only sex education. Chris Elkins, More Than ‘Just Say No’ Needed in Sex Ed, DAILY J. (Dec. 13, 2012), https://www.djournal.com/opinion/other-opinion-more-than-just-say-no-needed-in-sex-ed/article_db4f2969-e2b8-5950-8fd7-f46d55 cb742.html. *27 For example, instead of using federal monies to implement comprehensive sex education at no cost to the state, Mississippi funded a “Teen Pregnancy Prevention Summit” featuring pamphlets discouraging the use of contraceptives because they supposedly harm girls' “physical[,] emotional and spiritual well-being.” Andy Kopsa, Sex Ed Without Condoms? Welcome to Mississippi, THE ATLANTIC (Mar. 7, 2013), https://www.theatlantic.com/national/archive/2013/03/sex-ed-without-condoms-welcome-to-mississippi/273802; see also Alana Semuels, Sex Education Stumbles in Mississippi, L.A. TIMES (Apr. 2, 2014) (recounting a public school sex education curriculum which instructed students to unwrap a piece of chocolate, pass it around the class, and observe how dirty it became to “show that a girl is no longer clean or valuable after she's had sex”).

The consequences of these policies for women's and children's health are severe: Mississippi boasts some of the nation's highest rates of teen pregnancy, gonorrhea, chlamydia, and syphilis. Sarah Fowler, Mississippi Has the Highest Rate of this STD, Ranks 3rd for Two Others, MISS. CLARION LEDGER (Oct. 15, 2019), https://www.clarionledger.com/story/news/local/2019/10/15/gonorrhea-std-rate-mississippi-highest-chlamydia-syphillis-access-to-care-factor/3932140002/. Nevertheless, Mississippi continues to rely on a mode of protecting women's health and fetal life that is rooted in impermissible sex stereotypes, and does so by restricting access to reproductive health care.

*28 Mississippi objects that Casey's protections for women's decision-making “prevent[] States from providing health benefits and protections that they can provide in other contexts.” Pet. Br. 41-42. But Mississippi has a wealth of policy options for reducing the incidence of abortion in the state and protecting women's health. See Emily Wax-Thibodeaux & Ariana Eunjung Cha, The Mississippi Clinic at the Center of the Fight to End Abortion in America, THE WASH. POST (Aug. 24, 2021) (recounting story of a young woman receiving follow up care after abortion in the state's only remaining clinic who said “that because Mississippi teaches only abstinence in public schools, no one explained to her how to prevent pregnancy if she had sex”).

In short, Mississippi could provide care and support for individuals who wish: to avoid pregnancy, to bear children who will not languish in poverty, to preserve their own or their children's health, or to safeguard their ability to provide for existing children. Instead, Mississippi chooses to prevent women from making the most intimate, consequential decisions for themselves and to coerce women into giving birth under dangerous, demeaning conditions.¹³ HB 1510 thus functions more as a tool of control than as an *29 expression of care for Mississippi's women and children. See Pet. App. 46a n.22.

Increasingly, those who support abortion restrictions take the extraordinary position that laws like HB 1510 actually promote equality under the law by preventing abortion from being used for eugenic purposes. In his separate concurrence in the judgment below, Judge Ho, drawing on a concurrence by Justice Thomas, asserts “that abortion ‘has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics”’ and notes that “the current ‘abortion ratio ... among black women is nearly 3.5 times the ratio for white women.”’ Pet. App. 35a (quoting Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1790-91 (2019) (Thomas, J., concurring)).

Such efforts to link abortion to eugenics ignore the fundamental differences between a state-sponsored program of eugenic regulation designed to control the demographic character of the community and a law protecting an individual's decision to terminate a pregnancy. In the former, decisional authority rests with the state. In the latter, the state protects the authority of an individual to make reproductive decisions consistent with her individual beliefs and circumstances.

Without acknowledging these differences, abortion opponents insist that, today, Roe and the constitutional law of abortion rights are being used as a tool of eugenic manipulation. There is a certain irony *30 here: If there is any historical association between abortion law and projects of demographic control, it lies in the nineteenth-century campaign to criminalize abortion itself.

The nineteenth-century campaign unfolded during an era of nativist, anti-immigrant, anti-Catholic feeling. See ERIKA LEE, AMERICA FOR AMERICANS: A HISTORY OF XENOPHOBIA IN THE UNITED STATES 42-44 (2019). Storer and others blamed abortion for the differences in birth rate between “native” (i.e., Protestant) women and “foreign” women. See STORER, supra, at 62-63; id. at 64-65 (observing that “abortions are infinitely more frequent among Protestant women than among Catholic [women]”); see also, e.g., William McCollom, Criminal Abortion, TRANSACTIONS VT. MED. SOC'Y 40, 42 (1865) (“Our own population seem to have a greater aversion to the rearing of families than ... the French, the Irish and the Germans.”); L.C. Butler, The Decadence of the American Race, 77 BOS. MED. & SURGICAL J. 89, 93-94 (Sept. 5, 1867) (comparing Protestant and Catholic doctrine on abortion with attention to the relevant reproductive rates of Protestants and Catholics). Storer tied Protestant families' declining size to Protestant women exercising reproductive autonomy; he thus sought abortion bans to increase the number of Protestants. He questioned whether “the great territories of the far West, just opening to civilization, and the fertile savannas of the South” would be filled by “our own children, or by those of aliens? This is a question that our own women must answer; upon their loins depends the future destiny of the nation.” STORER, supra, at 85. His words resonated with at least some state lawmakers enacting abortion *31 restrictions. See L.D. Griswold et al., supra, at 235 (“Shall we permit our broad and fertile prairies to be settled only by the children of aliens?”). Doctors leading the campaign to criminalize abortion sought to wrest control of the reproductive decisions of “our own women” to protect fetal life, to enforce marital roles, and to preserve the demographic character of the nation. Siegel, Reasoning from the Body, supra, at 297-300.

Interest in eugenics-“‘the science of improving stock’ by giving ‘the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable”'-became more popular in the nineteenth and early twentieth century. DOROTHY ROBERTS, KILLING THE BLACK BODY 24, 59 (2d ed. 2017). Eugenicists argued that “society should encourage the procreation of those of superior lineage, while discouraging procreation among-and public support for-those of inferior lineage.” Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 HARV. L. REV. 2025, 2036-37 (2021).

But the twentieth century eugenics movement did not focus on abortion as a way to control the population. It turned to laws permitting sterilization of the “feebleminded” and “habitual criminals,” as well as laws criminalizing miscegenation and interracial marriage. Id. at 2037. By the mid-twentieth century, policies of reproductive control primarily targeted impoverished communities of color perceived as threats to the public fisc by curtailing individuals' ability to make decisions about their reproductive lives. Id. at 2047.

*32 Mississippi's own history is instructive. In the 1950s and 1960s, state lawmakers prescribed sterilization as a punishment for nonmarital childbearing. See id. at 2042 (describing 1964 Student Nonviolent Coordinating Committee pamphlet Genocide in Mississippi). Civil rights leader Fannie Lou Hamer famously estimated that six in ten Black women who gave birth in Sunflower County Hospital during this period underwent post-partum sterilization without their consent, and often without their knowledge, a practice so common it was colloquially called a “Mississippi appendectomy.” CHANA KAI LEE, FOR FREEDOM'S SAKE: THE LIFE OF FANNIE LOU HAMER 21-22, 80 (1999); REBECCA M. KLUCHIN, FIT TO BE TIED: STERILIZATION AND REPRODUCTIVE RIGHTS IN AMERICA, 1950-1980 at 93-94 (2009). As history makes clear, there is simply no comparison between state policies of reproductive control aimed at limiting birth among marginalized groups and the individual right to make reproductive decisions free from state coercion.

Further, when abortion opponents point to the incidence of abortion among minority communities as evidence that abortion is rife with “eugenic potential,” they ignore the “structural impediments communities of color face in reproductive decisionmaking.” Murray, supra, at 2090-91. For many people of color, “the decision to terminate a pregnancy is shot through with concerns about economic and financial insecurity, limited employment options, diminution of educational opportunities, and lack of access to health care and affordable quality childcare.” Id. at 2090-91. Efforts to associate abortion with eugenics obscure how Mississippi's own policy choices, by failing to *33 support families, perpetuate the conditions that lead increasing numbers of poor women and women of color to decide to end their pregnancies. See supra Part III. Rather than link abortion rates to the policy choices that perpetuate poverty, opponents shift blame on to women who make decisions about abortion in a nation that provides scarcely any support for those who conceive, bear, and raise children.

For a half century, this Court has affirmed that the Equal Protection Clause forbids the State from imposing traditional gender roles. See also Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 WOMEN'S RTS. L. REP. 143, 143-44 (1978). HB 1510 does just that. It discriminates on the basis of sex, enforcing nineteenth-century sex-role stereotypes that compel a woman to continue pregnancy while the State foregoes alternative nondiscriminatory means to achieve the same ends.

In Casey, the Court explained that a pregnant woman's “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture.” Casey, 505 U.S. at 852. Mississippi has banned abortion after 15 weeks to protect the life and health of the fetus and the “maternal patient.” Miss. H.B. 1510 § 1(2)(b)(ii)-(v). The statute addresses a pregnant woman as a mother, but in the same breath, it deprives her of control over whether to become a mother-all while claiming to act in the name of her “physical and psychological” “health.” See id. Mississippi offers no persuasive justification for its *34 ready embrace of sex-based coercive means to protect life and health when less discriminatory means were available.

At the heart of both the Due Process Clause and the Equal Protection Clause is the individual's right to be free from state imposition of traditional gender roles. HB 1510 denies that fundamental constitutional guarantee.

For the foregoing reasons, the judgment below should be affirmed.

Respectfully submitted,

ROBERTA A. KAPLAN

RAYMOND P. TOLENTINO

MARCELLA COBURN

RACHEL TUCHMAN

ANNA COLLINS PETERSON

Kaplan Hecker & Fink LLP

350 Fifth Avenue, 63rd Floor

New York, NY 10118

(212) 763-0883

rkaplan@kaplanhecker.com

September 20, 2021

The Fourteenth Amendment bars States from depriving “any person of life” “without due process of law” or denying “to any person” “the equal protection *5 of the laws.”⁵ It was adopted against a backdrop of established common-law principles, legal treatises, and statutes recognizing unborn children as persons possessing fundamental rights.⁶

Authoritative treatises-including those deployed specifically to support the Civil Rights Act of 1866, which the Fourteenth Amendment aimed to codify⁷ prominently acknowledged the unborn as persons. Leading eighteenth-century English cases, later embraced in authoritative American precedents decades before ratification, declared the general principle that unborn humans are rights-bearing persons from conception. And even before a nationwide wave of statutory prohibitions of abortion in the mid-nineteenth century, the common law firmly regarded abortion as an offense from the moment-established by science-when there emerged a new individual member of the human species, a human being.

Blackstone's Commentaries expressly taught that unborn human beings are rights-bearing “persons” and contributed enormously to the term's shared legal *6 meaning in 1776-91 and 1865-68. Little wonder that when House Judiciary Committee Chairman James F. Wilson introduced the Civil Rights Act of 1866, he said:

Wilson was quoting Blackstone's Commentaries' first Book, “Of the Rights of Persons,” and its first Chapter, “Of the Absolute Rights of Individuals.” Wilson observed approvingly that the leading American treatise on common law-Kent's Commentaries-ex- plicitly adopted Blackstone's categorization of these rights and description of them as “absolute”-natural to human beings.⁹

Blackstone's analysis, presented as uncontroverted and familiar to Wilson's listeners in Congress, begins with the “right of personal security”-“a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health ....” And Blackstone's unfolding of this right of persons opens immediately *7 after Wilson's quotation with two paragraphs about the rights of the unborn:

This paragraph continues with two sentences about a shift or ambiguity in criminal law about homicide and abortion, addressed below.¹¹ Then comes Blackstone's second paragraph on unborn children's rights:

An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It¹² is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.^o13

*8 These paragraphs merit close attention. The first paragraph's first sentence concerns:

• a doctrine of English common-law criminal law-mentioned immediately given the section's topic, the right to life-and what may be inferred from its treatment of natural realities “in contemplation of law.”

This last phrase, in Blackstone, signals legal fictions:¹⁵ here a legal doctrine's treatment of the infant's ability “to stir in the womb”¹⁶ as the start of life for some purpose. By following this first paragraph on the criminal law's narrow, defendant-protective conception of homicide (requiring a “stir[ring],” perhaps partly for evidentiary reasons) with a paragraph sketching laws free from artificial constraints (benefitting all unborn humans), Blackstone hints that the law of personal rights accommodates more than one “contemplation of law” and may be refined.

“Person” can mean (1) a natural reality signified in our civilization by Boethius's definition (“an individual substance of a rational nature”), closely corre- *9 spending to the sense used in this foundational Commentaries text,¹⁷ or (2) a social role signified by the term's root meaning mask or assumed identity-in which sense the law can deem anything a person (rights-bearing unit).

The Fourteenth Amendment uses “any person” (without qualifiers) paradigmatically in the first sense. Yet the Court, since the 1880s,¹⁸ has also included corporations within “any person” because the meaning of “person”-in the then-prevailing linguistic-conceptual framework of a legally educated public brought up on the Commentaries-linked under “the Law of Persons” both natural and artificial persons.¹⁹

Blackstone's second paragraph on unborn persons' rights states an even more pervasive common-law doctrine (construing common law broadly to include established equitable principles). Also essential to the legal context and meaning of “any person” in the 1868 Clauses, this doctrine treats the unborn as rights-bearing persons from conception, in many fields besides criminal law.

The leading case of Hall v. Hancock,²⁰ which cited many English cases, formulated this doctrine thirty-two years before the debates on the Civil Rights Act *10 of 1866. The Massachusetts Supreme Judicial Court ruled unanimously, per Chief Justice Shaw:

[A] child is to be considered in esse [in being] at a period commencing nine months previously to its birth.... [T]he distinction between a woman being pregnant, and being quick with child, is applicable mainly if not exclusively to criminal cases [and] does not apply to cases of descents, devises and other gifts; and ... a child will be considered in being, from conception to the time of its birth in all cases where it will be for the benefit of such child to be so considered....

Doe v. Clarke²² is directly in point[,] stat[ing] as a fixed principle that, wherever [it] would be for his benefit, a child en ventre sa mere shall be considered as absolutely born.²³

This doctrine about the real and legal personhood of the unborn from conception was enunciated by an esteemed state chief justice not as a technical rule for one purpose but as a “fixed principle” “to all intents *11 and purposes”: The unborn is “a child, as much as if born” and “is a person in rerum naturâ.”²⁴ The Georgia Supreme Court, too, in 1849, expressly applied that principle, paraphrasing Hardwicke and Shaw.²⁵

Given this general but pointed principle,²⁶ and the doctrinal architecture of Blackstone's Commentaries and thus of American legal education for the century preceding 1868, the original public meaning of “any person” in the fundamental-rights-regarding Equal Protection Clause included living preborn humans.

This conclusion is not undermined by the (limited, shifting, ultimately transient) relevance at common law of a child's being “quick” or “quickened.”

Archaic views of human generation held sway down into the mid-nineteenth century. Such views mostly supposed that generation involved an unformed fleshy mass undergoing successive “formations” (receptions of new forms-vegetable, animal, etc.) until it was differentiated enough, at around six weeks, to receive a distinctly human form. Such animation by a rational soul (anima²⁷ ) was supposed to make it a human organism. This misperception, despite scientific advances, plagued the public (making “quick” and “quicken”²⁸ ambiguous) until the mid-nineteenth century. Uncertainty led some courts to leave reform of common law abortion offenses to legislatures.²⁹ But this did not affect the legal question whether prenatal humans-whenever science showed they existed-were “person[s]” entitled to life and security. All along, they have been, as proven by *13 courts' and lawmakers' swift extensions of protection as general opinion caught up with science.³⁰

The historical legal field is illuminated by distinguishing three distinct senses of “quick(en)”:

ii. “a quick child” (a live child), understood to emerge when an embryo had developed enough to receive a rational animating principle (soul) and so had become a truly human individual. This term applied-in Bracton's mid-thirteenth century, Coke's early seventeenth, and the educated opinion of Blackstone's timefrom the sixth week of pregnancy.³²

*14 iii. “quickening” (a “quickened child”, etc.), from the pregnant woman's perception of a shift in the uterus's position or her child's movements, sometime between the twelfth and the twentieth week (or not at all), but normally about the fifteenth or sixteenth week.

With this clarification, we return to the two sentences earlier left aside in the Commentaries' first paragraph on the rights of the unborn:

*15 The first sentence's footnote quotes a line from Bracton in Latin³³ ; the second's cites a passage in Coke's Institutes quoting the same line from Bracton.³⁴ That line plainly addresses “quick”-ness in the second sense-a supposedly not-yet-human entity's change (by animation) into a human organism. So both Coke and Blackstone effectively taught that abortions were common-law heinous misdemeanors from the sixth week of pregnancy.

Roe contradicts this, launching its discussion of the common law by citing Coke and Blackstone for its claim that “[i]t is undisputed that at common law, abortion performed before ‘quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16^th to the 18^th week of pregnancywas not an indictable offense.”³⁵ False. Again, Coke and Blackstone cited only Bracton, who was referring to a living child, animated by a human form or soul, *16 months before the mother would feel “recognizable movement” around the “16th to the 18th week.”

A leading American case cited by Roe made this clear. Relying on Bracton-Coke-Blackstone, Chief Justice Shaw for the Supreme Judicial Court of Massachusetts held in Commonwealth v. Parker that indictments for abortion must aver that the woman “was quick with child,” but explicitly declined to hold that this means she has “felt the child alive and quick within her.”³⁶

It is no answer to cite State v. Cooper³⁷ in support of Roe's generalization that the common-law offense required perceptible movement. It is true that New Jersey's high court, after holding that abortion involves a woman “quick with child,” appeared to take sides (though it was not in issue) on when this occurs, answering: “when the embryo gives the first physical proof of life, no matter when it first received it.”³⁸

Yet Cooper's framing of the question about “offenses against the person”-as concerning when a human child is “in esse” (in being)-itself tells in favor of the principle that a prenatal human individual warrants protection from its first moment of existence (a principle Cooper acknowledges the evidence for and *17 does not rebut).³⁹ And Cooper made clear that it neither contested that a new human life begins before the mother perceives movement,⁴⁰ nor questioned the other legal protections for children at those early developmental stages.⁴¹ It also explicitly chose to leave reform to the legislature,⁴² and New Jersey lawmakers promptly abolished the distinction between preand post-“quickening” and extended prohibition of this “offense against life” to begin when a woman is “pregnant with child”-i.e., conception.⁴³

The high-water mark of treating quickening (felt movement) as relevant was the early nineteenth century⁴⁴; by the last third, that line was virtually gone as it was always destined to be-denounced by the medico-legal treatises as groundless because formation and animation occur at conception.⁴⁵ The same treatises also regarded the old Bracton-Coke-Blackstone version of “quick with child” (around six weeks) as equally ridiculous.⁴⁶ With modern scientific embryology, that Bracton test was compelled, by its *19 own rationale, to recognize personhood from conception even in the cramped, defendant-solicitous criminal law.⁴⁷ Thus, the influential and widely circulated 1803 textbook Medical Ethics explained that “to extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man.”⁴⁸

What these treatises taught about the unbornmany describing their destruction as murder or indistinguishable from infanticide⁴⁹-was vigorously promoted and re-asserted in professional medical associations, legal education, and state legislatures. The American Medical Association in 1859 dismissed the fiction “that the foetus is not alive till after the period of quickening” and urged correction of any “defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.”⁵⁰

*20 The leading American treatise on criminal law mocked the pegging of legal protection to felt quickening and effectively buried the Bracton-Coke quickening-as-animation criterion. Wharton's Criminal Law, from its first edition in 1846, argued that the criminal law of offenses against unborn persons should be aligned with the law of property, guardianship and equity⁵¹ as expounded in cases such as Hall v. Hancock, adopting authoritative English equity precedents, which recognized unborn rights at all stages of development.

Thus, by 1866 Chief Justice Tenney of the Maine Supreme Court could accurately report that “the [quickening] distinction ... has been abandoned by jurists in all countries where an enlightened jurisprudence exists in practice.”⁵²

Whatever the confusions about “quick” and “quickening,” the common law indisputably, always and everywhere, made any attempted abortion a serious indictable offense from at least 15 weeks (give or take *21 three). Virtually unanimous legislative,⁵³ professional, and public support for this part of the nation's tradition of ordered liberty, and then for following the science and removing the temporal limit in the criminal law's protection, has been extensively documented by scholars since Roe and Casey.⁵⁴ This confirms that “any person” in the fundamental-rights-regarding Equal Protection and Due Process Clauses includes all unborn human beings.

So does the fact that, while prevailing (though not universal⁵⁵) nineteenth-century common law made only post-“quickening” abortion indictable, the common law always regarded pre-quickening abortion as “an action without lawful purpose,” as Chief Justice Shaw mildly put it in 1849,⁵⁶ such that abortions accidentally causing consenting mothers' deaths constituted murders. So even pre-quickening abortion was *22 always a kind of inchoate felony for felony-murder purposes.

The Union in 1868 comprised 37 States, of which 30 had statutory abortion prohibitions.⁵⁷ Most were classified as defining “offenses against the person,”⁵⁸ with 27 applying before and after quickening.⁵⁹ And Congress, legislating for Alaska and the District of Columbia shortly after ratification of the Fourteenth Amendment, referred to unborn children as “person[s].”⁶⁰