Pro-Life Briefs Supporting Mississippi in Supreme Court Case Challenge the ‘Roe’ Narratives
Legal experts and pro-life advocates are challenging the 1973 decision that legalized abortion from all angles in a series of amicus briefs.
WASHINGTON — Many pro-life advocates recently filed friend-of-the-court briefs to challenge the constitutionality of previability bans on abortion as the Supreme Court considers Mississippi’s 15-week abortion ban.
The more than 75 friend-of-the-court briefs in Dobbs v. Jackson Women’s Health strike at the reasoning behind the 1973 Roe v. Wade and Doe v. Bolton decisions that legalized abortion. Some briefs make a historical case for the recognition of fetal personhood and the overturning of Roe, while others point out harmful consequences of the legalization of abortion and debunk the societal narratives used in that decision.
Robert George, the McCormick Professor of Jurisprudence at Princeton University, told the Register that the “briefing in support of Mississippi was exceptionally strong” and has “provided the justices with all the information they need to make a compelling case for overturning Roe v. Wade and to at least consider the question of whether the 14th Amendment should be interpreted as protecting the unborn in ways that would forbid states from exposing unborn children to elective abortion.”
Debunking Roe’s Historical Reasoning
George made a case for the unborn being protected as persons under the 14th Amendment to the Constitution in a brief that he filed along with legal philosopher John Finnis, Biolchini Family Professor of Law Emeritus at the University of Notre Dame.
George told the Register that Roe “itself admitted that if the unborn were persons, then, far from there being a right to abortion, that would mean that they were protected under the 14th Amendment,” which says that no state shall “deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.”
He said that when deciding Roe, the court in 1973 “simply dismissed” the question of whether the unborn were persons and relied on “utterly falsified” legal history from Cyril Means, who was general counsel for the National Association for the Repeal of Abortion Laws. Means “claimed to show that abortion was actually a liberty in common law and that the purposes of the 19th-century statutes, like the Texas statute struck down in Roe, that prohibited abortion was not to protect the unborn child from a lethal assault but was rather to protect women against a dangerous surgical procedure.”
However, as George’s brief points out, even Roe’s legal team said “Means’s ‘conclusions sometimes strain credibility’ and ‘fudge’ the history but ‘preserve the guise of impartial scholarship while advancing the proper ideological goals.’”
George’s brief highlighted, “Authoritative treatises — including those deployed specifically to support the Civil Rights Act of 1866, which the Fourteenth Amendment aimed to codify — 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.”
Some of the historical evidence in the brief included the American Medical Association’s 1859 statement, which 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.’”
It also noted that Wharton’s Criminal Law, a prominent reference work on 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 equity as expounded in cases such as Hall v. Hancock, adopting authoritative English equity precedents, which recognized unborn rights at all stages of development.”
George said that “in the relevant legal materials, medical materials on the basic understanding that was widely shared by people who were responsible for the 19th-century abortion statutes, the unborn were considered persons.” He pointed to the discovery of the mammalian ovum by Karl Ernst von Baer in 1827, which “made possible what we now know of as modern human embryology, the understanding that the way human life or all mammalian life begins is with conception.”
George noted that “all of this was already known by the time the state legislatures were ratifying the 14th Amendment” and “the people responsible for the 14th Amendment had meant to include unborn children.”
Among the amicus briefs filed in the Mississippi case, some others also discussed the question of fetal personhood at the time of the ratification of the 14th Amendment.
A brief from Mary Ann Glendon, the Learned Hand Professor of Law, emerita, at Harvard Law School and O. Carter Snead, law professor at Notre Dame Law School, called Roe and Doe “breathtaking departures from the text, history, and tradition of the U.S. Constitution,” as “neither the framers of the Fourteenth Amendment, the States that ratified it, nor any member of the American public at that time with knowledge of its contents could have intended or understood that the Amendment precluded states from protecting unborn children or otherwise legally proscribing abortion. To the contrary, in the year it was ratified (1868), thirty of thirty-seven states explicitly criminalized abortion by statute.”
Pushing Back on Roe’s Societal Narratives
Teresa Collett, professor at the University of St. Thomas School of Law in Minneapolis and director of the school’s Prolife Center, has filed three amicus curiae briefs in Dobbs v. Jackson Women’s Health. She co-wrote one brief with Helen Alvaré of Antonin Scalia Law School at George Mason University and Erika Bachiochi of the Ethics and Public Policy Center on behalf of 240 women scholars, professionals and pro-life feminist organizations, which responded to the narrative in the 1992 Planned Parenthood v. Casey decision that reaffirmed Roe’s premise that “women rely on abortion in order to advance socially and economically in this country.”
Collett told the Register that their brief found, from “the 1990s going forward, with the decline of both abortion rates and abortion ratios, we see women overtaking men in terms of obtaining four-year college degrees. There are now more women law students and more women in law school and in medical schools than there are men. We see women’s business ownership just exploding, particularly ownership by women of color, and if there really was a causal relationship that the controlling opinion posits [in Casey] you should see a consistent correlation, but, in fact, you do not.”
The brief pointed out that in Casey “a plurality of this Court affirmed Roe’s holding — not because the justices thought the 1973 decision was correct as a matter of constitutional law, but rather on the faulty premise that women had ‘reliance interests’ in the judicially-created right to abortion that ensured their capacity ‘to participate equally in the economic and social life of the nation.’
“In support of this premise, Justices O’Connor, Souter and Kennedy referenced the work of a single political scientist, who herself did not claim any causal link between abortion and women’s changing economic and social status.”
Another brief that Collett co-authored, along with the Minnesota Family Council, made the case that widespread abortion access has contributed to “many of the social ills we’ve seen emerge in the past 50 years.” The brief said that Roe’s “minimization of society’s fundamental interest in protecting unborn children” has contributed to developments such as “declining formation of families with accompanying increases in family instability and single parent households (many living in poverty) ... pregnancy discrimination by employers who, based on the Court’s jurisprudence and abortion advocates’ public rhetoric, see pregnancy as just one personal choice among many.”
Collett said it also contributed to an increase in non-marital sexual activity, “with simultaneous increases in unintended pregnancies and coerced abortions,” and “abortion has increasingly been justified (and made available) as a tool of eugenics — for the elimination of ‘excess’ unborn children, or children of the wrong sex, race, or suffering from a disability.”
The third brief, which Collett authored in her role as director of the University of St. Thomas Prolife Center, urges the court to “make clear that the States are not required to permit abortions for reasons relating to the mental or psychological health of the pregnant woman, or for undefined reasons of health, either of which would lead the Court, and the country, back to a regime of abortion-on-demand.”
She said that this argument is important because pro-lifers “could end up winning the battle and losing the war,” if the court reverses Roe but leaves a “wide-open health exception that includes the woman’s familial status, her age, her psychological well-being.’”
Collett said that the court has a huge “breadth of options” before it in this case, and “it could be that the court takes a different position on viability than it has taken” or “adopts some other tests rather than viability for prohibition” — or it could overrule Roe v. Wade entirely.
George told the Register that he believes the “most likely outcome” in the case is “that the Court would overturn Roe v. Wade, uphold the Mississippi statute, and return to the states the authority to regulate abortion.” He said another possibility would be for the court to “find some basis on which to uphold the Mississippi statute despite its inconsistency with Roe v. Wade without overturning Roe v. Wade.” In what would be a “dreadful” scenario, he said, another possibility was that the court could “uphold Roe as a precedent and strike down the Mississippi law as inconsistent with Roe.”
Carrie Severino, president of the Judicial Crisis Network and a former law clerk of Justice Clarence Thomas, told the Register that the large number of amicus briefs in this case contain “some of the best arguments” as well as “different perspectives, legal positions that different groups were particularly well-placed to flesh out or personal perspectives.”
As for the possibility of overturning Roe, she said that “it’s actually a question whether they can even decide the whole case without going so far as explicitly overturning Roe or if they would do so,” but “one thing we generally know is the court doesn’t normally go further than it needs to decide a case,” and “oftentimes what you see is a stepwise progress that the court follows” in the case of a precedent like Roe, which has been “criticized and is undermined by subsequent cases.” She said there were a range of possible optimistic outcomes, like the court “recognizing that the viability line really isn’t a legal line; it’s a very transitory scientific line,” which the court “could easily say without going all the way” and overturning Roe.
Severino believed the court’s current makeup was also a “cause for optimism,” saying that “we haven’t seen the court going in a direction that deviates from the original meaning of the Constitution, the textualist understanding of reading statutes as they are written, and that is the most important thing.” She expected “a result from this court that is going to actually be moving the law in the direction of what the Constitution’s language actually says, and that is something that’s very exciting, whether they do it in one step or three steps.”
- lauretta brown
- roe v. wade
- abortion in mississippi
- doe v. bolton
- Dobbs v. Jackson Women’s Health Organization