The 140 Amicus Briefs filed in Dobbs v. Jackson

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This forum was created by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 13:35, 2 October 2023 (UTC) to mine the gold from the 140 "Amicus" Briefs filed in Dobbs v. Jackson, June 24, 2022, the ruling that overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), returning the decision whether to continue the slaughter to voters state by state. The search here is for nuggets that can help end the slaughter in every state. I am mining these nuggets for my book, Reversing Landmark Abomination Cases.

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Register (see Begin!) and join the discussion. Vote. Improve it. Critique it. Sign your name with 4 tildes ((~~~~)).

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Below are the titles, dates filed, and links to, the 140 Amicus Briefs filed in Dobbs v. Jackson (2022), and excerpts from them, and my comments. I indicate which of them I include in my book, Reversing Landmark Abomination Cases. They are numbered in the order they were filed.

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1. Roman Catholic Diocese of Jackson and Roman Catholic Diocese of Biloxi

July 14, 2021 filed. Summary: this Court should find that the state’s interest in protecting unborn children who have the capacity to feel pain is sufficiently compelling to support a limited prohibition on abortion.

Excerpts

"The purpose of H.B.1510 is to protect those unborn children who, at 15 weeks gestation, have the capacity to feel pain. ...The government supplied expert testimony on this point" (which was excluded by the district court).

The main argument seems to be that banning abortions at 15 weeks is not a "substantial" obstacle to abortion, so it doesn't violate Casey, 1992, which prohibits a "substantial" obstacle. While it enhances "respect for life", which Gonzales, 2003, endorses. "Respect for life is clearly shown in Gonzales to be a sufficient governmental interest in abortion regulations."

States have an "important interest regarding the sanctity of life." Quoted from Carhart, 2000.

Justice Thomas was quoted saying SCOTUS has “struggle[d] to find a guiding principle to distinguish fundamental rights that warrant protection from nonfundamental rights that do not", and then it is asked, "Does an unborn child have a fundamental right to be free from pain in the womb?"

[COMMENT: what an understatement! No mention of the right to live? Actually being dead is an effective way to be free from pain. Life involves pain, and every day of life is a gift.]

The district court shouldn't have forbidden expert testimony about babies feeling pain as they are being murdered. "Whether an unborn child can feel pain when a doctor...kills it, it is clearly relevant to a law which forbids abortions at a time when the unborn child can feel pain."

"Consider how the Supreme Court has construed the Cruel and Unusual Punishments Clause of the Eighth Amendment to forbid executions of convicted murderers that involve unnecessary pain." Judge Ho added, "If courts grant convicted murderers the right to discovery to mitigate pain from executions, there's no reason they shouldn't be even more solicitous of unborn babies."

"Should Lady Justice turn a blind eye to the cry of the unborn child, sucking its thumb, hidden in the sacred dark refuge of his or her mother's womb, only to have that womb become a tomb? Justice should not abandon the unborn child. One of the most important roles of law is to fight for those that cannot fight for themselves."

"...the most fundamental of all rights - life. The right to life is, according to the Declaration of Independence, 'self-evident'. It is the sacred duty of our government to protect and respect this right...." "...a human being must be recognized as having the rights of a person - among which is the inviolable right of every innocent being to life." That's a quote from the Catholic catechism. Paragraph 2270.

"Before I formed you in the womb, I knew you. Jeremiah 1:5."

[COMMENT: It is stated that babies are people, yet far less is asked than the outlawing of murdering them in every state, which that fact demands. Not even the overturning of Roe and Casey are asked, but merely the survival of Mississippi's 15 week aborticide ban. Only one Bible verse in support of that fact is given. No evidence that babies are people is offered. The testimony of court-recognized fact finders is absent.

[The comparison with pain studies for the benefit of convicted murderers being executed is a very strong point. But I am suspicious of the theory that babies much younger can't feel pain. A worm on a fish hook obviously feels pain. And a human baby, at the same size, can't?]

2. American Center for Law & Justice

Filed July 14, 2021. Stare decisis cannot trump adherence to the Constitution as the supreme law of the land.

Excerpts

"Stare Decisis...cannot exalt knowingly incorrect supreme court decisions over the Constitution itself." "...the justices must prefer a a faithful reading of the Constitution to an acknowledged false reading."

The "Supremacy Clause" of the Constitution, declaring the Constitution "the supreme law of the land", does not include "decisions of the United States Supreme Court". Judges take an oath to uphold the Constitution.

"Abortion advocates, recognizing the doctrinal flimisness of this court's abortion jurisprudence, invoke the doctrine of stare decisis as counseling adherence to Roe and Casey even though they were wrongly decided."

[COMMENT: The brevity of this brief is itself a strong statement, along with its only court cites being about judges not putting themselves above the Constitution. I think it is less than half the length allowed by the Court for an amicus brief. As if to say "Look, you know how wrong Roe and Casey are. Just, STOP!"

[Nothing is explicitly said about a right to life for babies, to counter all the arguments from Hell for murdering them. But the nose-thumbing at all the arguments from Hell is breathtaking.]

3. 375 WOMEN INJURED BY SECOND AND THIRD TRIMESTER LATE TERM ABORTIONS AND ABORTION RECOVERY LEADERS

Filed July 20, 2021 “The Dignity Of Infant Life In The Womb” is appealed to.

The brief says “Amici Women who actually experienced this gruesome reality request this Court to consider the effect on the woman who has felt her baby moving alive in her body, then realizing the baby is dead and not moving, for two days, before removal. This overall description is clinical gruesomeness at its most wretched level.”

[COMMENT: Dignity of infant life. It was not pointed out that their “dignity” is made possible only by realization that they are human beings. We eat animals, and do not talk about their “dignity” as we slaughter them. Oh wait, I'm wrong. Democrats regard animal slaughter as way more violative of "dignity" than human slaughter. So maybe it is a more powerful argument in court to DENY that babies of humans are humans? They are animals, which merit greater protection?

The sentence following: “Especially if one inserts the term ‘baby’ which is the term most women use instead of the clinical term ‘fetus.’”

“Late term abortions are also a crime against humanity, which occurs when the government withdraws legal protection from a class of human beings.”

[COMMENT: Three things are missing from making this a powerful argument against legal abortion: (1) evidence that babies are “human beings”, to trigger what Roe said would “of course...collapse” legal abortion, (2) a request of the Court to end legal abortion, without which there is little pressure on the Court to address this evidence, and (3) citing the fact that babies are human beings - not just the fact that some mothers are grossed out - as the reason legal abortion should end.]

The only “remedies” requested by the “amici women” brief are: the right to “Protect Women’s Psychological Well-Being (Health), The Dignity Of “Infant Life” In The Womb, And The Integrity Of The Medical Profession And Society”. Amici women never ask for the end of all legal abortions, but only for an end to abortions after 15 weeks as the Mississippi law targets, because “Late Term Abortion Severely Injures Significant Numbers Of Women”. It causes “Grief More Anguished and Sorrow More Profound” and “Devastating Psychological Consequences”. (For some mothers, that is.)

The murder of babies, though alleged, is not presented as a reason for the Court to do anything. The fact that only abortions past 15 weeks, which are only 4.5% of abortions, are the target, is consistent with the primary concern being for mothers, since concern for babies would call for outlawing all abortions.

This analysis should not be taken to imply that the lawyers and women involved don’t care primarily for the slaughtered, dismembered babies! Of course that is their primary concern! But I marvel that they don’t say so in their brief, citing the overwhelming, irrefutable evidence of unborn personhood by the consensus of every court-recognized finder of fact that has taken a position on “when life begins”.

4. The States of Texas Alabama Alaska Arizona Arkansas Georgia Idaho Indiana Kansas Kentucky Louisiana Missouri Nebraska Ohio Oklahoma South Carolina Tennessee West Virginia

Filed July 20, 2021

Summary: Changed circumstances require the Court to reevaluate its viability precedent.

5. Illinois Right to Life

Filed July 20, 2021 Our Declaration of Independence guarantees the “right to life.” This Court is the guardian of the Constitution and thus should take cognizance of the changes in culture, science, and law since Roe. The Court should revise its abortion jurisprudence to allow Mississippi and other states to enact laws to protect and further the inalienable and constitutional rights of preborn human beings. A consensus of biologists now acknowledges that a human fetus is, biologically speaking, a human being.

Footnote 10 a. The scientific literature has established that fertilization initiates a new human being. . An overwhelming majority of biologists recognize that a human’s life begins at fertilization . . . . . . . . . .

Footnote 13 c. Legislative hearings on when life begins marshalled scientific evidence that life begins at fertilization . Even doctors who perform abortions and proponents of abortion rights admit fetuses are human beings Views opposing the position that human life starts at fertilization are unscientific and ideological . Changes in the law have further e r o de d t he u nde r pi n n i ng s Roe. Those changes recognize the human fetus as a human being . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Footnote 17 a. Enactment of fetal homicide laws in almost 80% of states demonstrates that, outside of the abortion context, a human fetus is legally recognized as a human being St at es a re i ncrea si ngly proposing and enacting laws protective of unborn human beings even when abortion is curtailed as a result . . . . . . . . . .

Footnote 18 4. P r ot e c t i ve le g i s l at ion h a s ameliorated many detriments associated with pregnancy The Court should not continue to follow Roe’s viability standard since it ignores the fact that a human fetus is a biological human being and legal person at all stages of the human life cycle . . . . . . . . . . . . . . . . . . . . . . 20 II. SINCE A HU M A N FET US IS A HUMAN BEING, H.B. 1510 SHOULD BE SUSTAINED AS A REASONABLE PRO T EC T ION OF A PR EBOR N PERSON UNDER THE FOURTEENTH AMENDMENT The Fourteenth Amendment covers all human beings, including preborn humans, and guarantees the due process right to life and equal protection . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1. The Fourteenth Amendment was intended to protect every human being within the jurisdiction of the U.S. Over whelming evidence now exists that human fetuses are human beings and therefore protected by the Fourteenth Amendment The Court has a constitutional duty to recognize the right of human fetuses to legal protections as persons, and to begin to build a consensus favoring protection of fetuses under law . . . . . . . . . . . .

23 B. Mississippi is entitled to pass legislation that protects prenatal humans from abortion

The question of when a human’s life begins is now recognized to be biologically determinable, and an overwhelming scientific consensus confirms the view that a human’s life begins at fertilization. (See infra at Argument I.C.2.a-c). This growing scientific consensus has prompted 38 states to enact changes in fetal homicide laws that recognize the humanity of preborn humans in non-abortive contexts, and other laws are being passed to protect preborn humans even though abortion restrictions are a consequence ...RECENT DEVELOPMENTS ESTABLISH PREVIABLE FETUSES ARE HUMAN PERSONS, RENDERING ROE AND ITS PROGENY OBSOLETE. A. State interest in protecting life is the most fundamental and important government duty.

In Roe, the Court based its “viability” standard on: (a) lack of a scientific consensus on when human life begins, (b) absence of uniform legal protection of fetuses, and (c) maternal burdens of pregnancy and child-rearing.

....” Roe, 410 U.S. at 153. The Court rejected that argument. Id. It recognized that if a human fetus is a “person” under the Fourteenth Amendment, the case for unrestricted abortion would be untenable “for the fetus’ right to life would then be guaranteed specifically by the Amendment.” Id. at 157.

The Court acknowledged that the state may assert a “legitimate interest in protecting the potentiality of human life.” Id. at 154, 162. But the Court ultimately determined that the evidentiary record was insufficient to establish in science or in law when a human’s life begins. ...Thus, in Roe, the Court’s decision was based on its stated inability to locate in the record a scientific or legal basis for the humanity or personhood of the fetus, and the detriments posed by pregnancy and child-rearing. However, these conditions no longer prevail,12 so the Court is obliged to reconsider Roe in light of these changed circumstances. C. Scientific, legal, and social developments have robbed Roe’s viability standard of its original justification p. 8 ...Casey: “[I]n constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations.” Id. at 864

...Roe’s recognition of a right to abort a previable pregnancy rests on the belief that the termination would not extinguish the life of a human person. That belief is no longer factually tenable given the current state of scientific knowledge concerning the origin and development of the human fetus. Roe also rests on a determination that the humanity and personhood of a human fetus was not generally recognized in law. That legal context has changed as well. Among other changes in the law, fetuses are now protected as human beings under laws prohibiting fetal homicide. Other laws, such as “heartbeat” laws and laws protecting against fetal pain, which are increasingly being enacted by the states, demonstrate their interest in protecting the youngest and most vulnerable humans. Finally, changes in the laws and the availability of social services that support and protect pregnant women have ameliorated the plight of pregnancy and lessened the burden of child-rearing. All of these changes rob Roe of its factual and legal underpinnings and require the Court to revisit and overrule it or, at a minimum, to recalibrate the viability standard in Roe and Casey, to reflect the current state of scientific understanding and the legal realities of today. 2. A consensus of biologists now acknowledges that a human fetus is, biologically speaking, a human being. a. T he scienti f ic lit er atu re ha s established that fertilization initiates a new human being.

A review of recent discoveries13 and the development of scientific literature since Roe reveal a strong consensus that sperm-egg plasma membrane fusion (fertilization) is the starting point of the life of a human organism (a human being).14 Dr. Maureen Condic, who is a member

Footnote 13. The Virtual Human Embryo (VHE), a 14,250-page illustrated atlas of human embryology, describes the stages of human development called the Carnegie Stages of Embryonic Development. Mark A. Hill, Embryology Carnegie Stages, University of New South Wales, Dec. 24, 2019, https://perma. cc/QX4R-UZXM; see also: Conception to birth -- visualized | Alexander Tsiaras TED Talk, YouTube, https://perma.cc/VL9ZRQB5, and 9 Months In The Womb: A Remarkable Look At Fetal Development Through Ultrasound By PregnancyChat.com, YouTube, https://perma.cc/ZNJ3-T4GU.

Footnote 14. Maureen L. Condic, When Does Human Life Begin? The Scientific Evidence and Terminology Revisited, 8 U. St. Thomas J.L. & Pub. Pol’y, 2013, https://perma.cc/JP33-Y8BH; Rita L. Gitchell, Should Legal Precedent Based on Old, Flawed, Scientific Analysis Regarding When Life Begins, Continue To Apply to Parental Disputes over the Fate of Frozen Embryos, When There Are Now Scientifically Known and Observed Facts Proving Life Begins at Fertilization?, 20 DePaul J. Health Care L. 1, at 8-9. (2018).

Footnote 18. Dr. Alfred Bongiovanni, University of Pennsylvania School of Medicine, in his testimony in connection with the 1981 hearing on Senate Bill 158, the “Human Life Bill, see infra at 15-16, concluded, “I am no more prepared to say that these early stages [of development in the womb] represent an incomplete human being than I would be to say that the child prior to the dramatic effects of puberty . . . is not a human being. This is human life at every stage.” Cited in House Resolution No. 214, https://perma. cc/6XRG-L2C8.

b. An overwhelming majority of biologists recognize that a human’s life begins at fertilization. A recent international study involving 5,577 biologists from 86 countries who work at 1,061 top-ranked academic institutions22 confirmed the scientific consensus on when life begins.23 The study asked biologists to confirm or reject five statements that represent the view that a human’s life begins at fertilization. The majority of the biologists in the study identified as liberal (89%), prochoice (85%), and non-religious (63%). 5,337 biologists (96%) affirmed at least one of the statements and only 240 participants declined to affirm any statements (4%). The study participants were also asked to answer an essay question: “From a biological perspective, how would you answer the question, ‘When does a human’s life begin?’” Most biologists (68%) indicated fertilization. Thus, while in Roe, the Court found that experts could not arrive at any consensus at that point in the development of man’s knowledge, that is no longer the case.

c. Legislative hearings on when life begins marshalled scientific evidence that life begins at fertilization. During hearings conducted by the Senate Judiciary Subcommittee on Senate Bill 158, the “Human Life Bill”, numerous scientific experts testified regarding when life begins. The Official Senate Report concluded that: “Physicians, biologists, and other scientists agree that conception marks the beginning of the life of a human being - a being that is alive and is a member of the human species. There is overwhelming agreement on this point in countless medical, biological, and scientific writings.”24 In the hearings, Dr. Jerome Lejeune testified that “[l]ife has a very, very long history, but each individual has a very neat beginning – the moment of its conception” because “[t]o accept the fact that after fertilization has taken place a new human has come into being is no longer a matter of taste or opinion ... it is plain experimental evidence.” S-158 Hearings, April 23, 1981 transcript, 18.25

Experts from leading institutions have testified that there are no alternative theories on when a human’s life...

Footnote 24. Report, Subcommittee on Separation of Powers to Senate JudFootnote iciary Committee S-158, 97th Congress, 1st Session 1981, 7; similarly, in 2006, the legislature in South Dakota heard expert medical testimony on when human life begins and concluded that “abortion terminates the life of a unique, whole, living human being”. Report of The South Dakota Task Force to Study Abortion, Submitted to the Governor and Legislature of South Dakota, Dec. 2005, https://perma.cc/4WF8-TNM3.

Footnote 25. S-158 Hearings, April 23, 1981 Transcript, https://perma. cc/6DCT-UT4P.

begins in the scientific literature. Dr. Hymie Gordon, Professor of Medical Genetics and physician at the Mayo Clinic, testified: “I have never ever seen in my own scientific reading, long before I became concerned with issues of life of this nature, that anyone has ever argued that life did not begin at the moment of conception and that it was a human conception if it resulted from the fertilization of the human egg by a human sperm. As far as I know, these have never been argued against.” Id. at 52. This lack of any published, let alone generally accepted, alternative scientific theories was also attested to by Dr. Micheline Matthew-Roth, a principal research associate in the Department of Medicine at the Harvard Medical School. Id. at 41-42.

d. Even doctors who perform abortions and proponents of abortion rights admit fetuses are human beings.

Many practitioners of abortion and supporters of abortion rights acknowledge human life begins at conception.26 For example, when abortion doctor Dr. Curtis Boyd was interviewed, he acknowledged with respect to abortion: “Am I killing? Yes, I am. I know that.”27 Abortion rights supporter and ethicist Peter Singer has written that being “a member of a given species is something that

Footnote 26. Derek Smith, Pro-Choice Concedes: Prominent Abortion Proponents Concede The Barbarity Of Abortion, Human Defense Initiative, Nov. 7, 2018, https://perma.cc/GXH8-MAUU. See also, A New Ethic for Medicine and Society, California Medicine, Sep. 1970.

Footnote 27. KVUE Austin Interview of Dr. Curtis Boyd, at 0:23, YouTube, Nov. 6, 2009, https://perma.cc/GYB2-3YFY.

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can be determined scientifically, by an examination of the nature of the chromosomes in the cells of living organisms. In this sense there is no doubt that from the first moments of its existence an embryo conceived from human sperm and eggs is a human being.”28

e. Views opposing the position that human life starts at fertilization are unscientific and ideological.

While some oppose the consensus view that human life begins at fertilization, the few counter-arguments made are philosophical or ideological, rather than scientific or fact-driven. In point of fact, no viable alternative to the consensus view has been propounded.29

One opposing argument is that biological principles are incapable of classifying humans30 despite the fact that scientists have done so for countless other animal species on Earth. Other opponents suggest that a human zygote cannot be considered a human individual because it is physiologically dependent on another human. Setting aside the fact that infants are also wholly dependent on other humans for survival, this ableist distinction rejects the humanity of conjoined twins who are physiologically dependent on each other’s bodies for survival. It is also sometimes claimed that a human zygote is not yet a human

Footnote 28. Peter Singer, Practical Ethics, 2nd ed., Cambridge University Press, 85-86, 1993.

Footnote 29. See supra, p. 15.

Footnote 30. Richard J. Paulson, The unscientific nature of the concept that “human life begins at fertilization,” and why it matters, Fertility and Sterility, Volume 107, Issue 3, Mar. 2017, https:// perma.cc/QDE5-C5C4.

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being because many fetuses fail to survive pregnancy and childbirth. But this view is fallacious because whether a human being is able to continue in life is not a condition of his or her status as a human being. A human life is always a life with potential, which may or may not be realized.

Ultimately, opposing arguments to the scientific consensus that a human’s life begins at fertilization are fallacious or focus on aspects of biology that are not relevant to the biological classification of human beings.

3. Changes in the law have further eroded the underpinnings Roe. Those changes recognize the human fetus as a human being.

a. Enactment of fetal homicide laws in almost 80% of states demonstrates that, outside of the abortion context, a human fetus is legally recognized as a human being.

In its 1973 Roe decision, the Court stated, “the unborn have never been recognized in the law as persons in the whole sense.” Roe, 410 U.S. at 162. This has changed markedly since that time. Legislators in 38 of 50 states have enacted laws that criminalize the intentional killing of a human fetus. These “fetal homicide” laws, which only apply to non-abortive killings, recognize that preborn human fetuses are human beings entitled to protection under the law. In this context, a majority of states today recognize a human fetus as a human person from the moment of fertilization.31

Footnote 31. A listing of the states with fetal homicide laws can be found at: State Laws on Fetal Homicide and Penalty-enhancement

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Fetuses are recognized as human persons in numerous contexts: (1) laws that restrict abortion at some point in fetal development, (2) fetal homicide laws, (3) prohibitions against capital punishment imposed upon pregnant women, (4) recovery for fetal deaths under wrongful death statutes, (5) the rights of preborn children under property law, (6) legal guardianship of prenatal humans,32 (7) the rights of preborn children to a deceased parent’s Social Security and Disability benefits33, and (8) the rights of inheritance of posthumously born children.34 Despite the plethora of contexts in which fetuses are recognized as persons under the law, this Court has yet to recognize the personhood of preborn humans.

b. States are increasingly proposing and enacting laws protective of unborn human beings even when abortion is curtailed as a result.

Today, 43 states have enacted laws protecting prenatal humans although abortion is thereby restricted. All but one restrict abortion access at the earliest point

for Crimes Against Pregnant Women, National Conference of State Legislatures, May 1, 2018, https://perma.cc/3XTG-WDLB.

Footnote 32. See Paul Benjamin Linton, The Legal Status of the Unborn Child Under State Law, 6 U. St. Thomas J.L. & Pub. Pol’y, 2011, https://perma.cc/XB8E-G375.

Footnote 33. SSR 68-22: SECTION 216(h)(3)(C). – Relationship – Status of Illegitimate Posthumous Child, Social Security Administration, https://perma.cc/W3TR-89L9.

Footnote 34. Alea Roberts, Where’s My Share?: Inheritance Rights of Posthumous Children, American Bar Association, Jun. 13, 2019, https://perma.cc/36VN-HZZ8

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permissible by Roe (viability), and states have recently more emphatically asserted a state interest in the lives of previable human beings by seeking to protect them: (1) after the sixth week since that is known to be the point at which a fetus’ heart first beats (AL HB314; IA SF359) and (2) after the twentieth week since that has been found to be the point at which a fetus can first feel pain (OH SB 127).

Altogether, given the Court’s willingness to permit states to protect prenatal humans from harm and states’ desire to do so, it is clear that our nation prizes the protection of humans over the right to abortion. However, in the present case, the District and Circuit courts enjoined Mississippi’s law because this Court has yet to recognize that previable human fetuses are humans.

4. Protective legislation has ameliorated many detriments associated with pregnancy.

In deciding Roe in 1973, the Court considered the burdens upon women associated with child-rearing such as “a distressful life and future,” “[m]ental and physical health may be taxed by child care,” and “additional difficulties and continuing stigma of unwed motherhood may be involved.” Roe, 410 U.S. at 153. These considerations have since been significantly ameliorated through legislation including: Title IX of the Education Amendments of 1972,35 the Pregnancy Discrimination Act,36 the Family

Footnote 35. 20 U.S.C. §1681 et seq.

Footnote 36. The Pregnancy Discrimination Act of 1978, U.S. Equal Employment Opportunity Commission, https://perma.cc/MH3SMLFE

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and Medical Leave Act (“FMLA”),37 the Women, Infants, and Children program (“WIC”),38 and the Pregnancy Assistance Fund (“PAF”).39

D. The Court should not continue to follow Roe’s viability standard since it ignores the fact that a human fetus is a biological human being and legal person at all stages of the human life cycle.

Roe’s recognition of a right to abort a previable pregnancy rested on the belief that termination would not extinguish the life of a human being. Developments in science and law since Roe reveal that belief to be erroneous. An abortion does take a human’s life. Given these changes, the Court should reassess Roe. ....

6. American Association of Pro-Life Obstetricians & Gynecologists

Filed July 20, 2021

THE FOURTEENTH AMENDMENT DOES NOT INCLUDE A LIBERTY INTEREST TO ABORT ALL PRE-VIABILITY UNBORN CHILDREN . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Historical Evidence Demonstrates that the Constitution Does Not Require a Ban Against All State Regulation of Previability Abortion.

Mississippi’s law is partially based on legislative findings pertaining to the advanced development and humanity of pre-born children at the gestational age of fifteen to twenty weeks. Pet. at 7-9. At twenty two days, the child’s heart begins to beat. https://www.ehd.org/your-life-before-birth-video/ (last visited July 15, 2020). At six weeks, the child begins moving. Id. At seven weeks, scientists can detect a child’s brainwaves, and the child can move his or her head and hands. Id. The child displays leg movements and the startle response. Id. At eight weeks, the child’s brain exhibits complex development. Id (Page 18)

7. Inner Life Fund and Institute for Faith and Family

Amici Brief Inner Life Fund.pdf Filed July 20, 2021

SCOTUS should grant Missippi's petition. The time has come to expose the “social equality fallacy” that demeans the ability and contributions of women by presupposing they can only achieve equality through the “right” to abortion. Great progress has been made toward the goal of gender equality in the decades since Roe and Casey — independent of access to abortion or contraception.

8. Robin Pierucci, M.D., and Life Legal Defense Foundation

Dobbs v. JWHO petition AC LLDF.pdf Filed July 20, 2021

“viability threshold for a compelling state interest in preserving human life, created by this Court in 1973, should be abandoned in favor of the medically updated and philosophically consistent standard of an “unqualified” interest in protecting life...”

In Roe, this Court determined that the state’s interest in the protection of human life became compelling at viability, relying on the fetus’ “capability of meaningful life outside the mother's womb.” Id. at 163.

By contrast, in Cruzan this Court rejected the idea of “meaningful life,” holding that “a State may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.” Cruzan, 497 U.S. at 282; Washington v. Glucksberg, 521 U.S. 702, 729 (1997) (quoting Cruzan and holding that the state “has an unqualified interest in the preservation of human life”) (emphasis added). See also Britell v. United States, 372 F.3d 1370, 1383 (Fed. Cir. 2004) (“It is not the role of the courts to draw lines as to which fetal abnormalities or birth defects are so severe as to negate the state's otherwise legitimate interest in the fetus' potential life.”); State v. Final Exit Network, Inc., 889 N.W.2d 296, 305-06 (Minn. Ct. App. 2016) (“The state has a compelling interest in the preservation of D.D.’s life, and the prevention of her suicide, regardless of her incurable [non-viable] condition.”)

Limiting a state’s ability to protect human lives directly to only those lives deemed “meaningful” because the arbitrary benchmark of viability has been reached is in direct conflict with this Court’s 1990 holding in Cruzan, that a state need not qualify its interest in the preservation of human life before acting. This Court should grant the petition to resolve the conflict between its abortion jurisprudence and its decisions in Cruzan and Glucksberg allowing states to protect human life regardless of the meaningfulness” of that life as measured by the uncertain yardstick of viability.

9. Cleveland Lawyers for Life

TSAC Cleveland Lawyers for Life.pdf filed July 19, 2021

The viability standard should be jettisoned in favor of the point at which the physical humanity of the fetus has become biologically manifest. Mississippi has met that burden of proof.” (15 week development is described. The cutoff for legal abortion should be when there are “biological markers” rather than when babies can survive outside wombs.)

10. David Boyle

Filed July 20, 2021

This is an attempt at a “neutral” plea for compromise. It promises respect for both sides. The index doesn’t indicate that the humanity of the unborn is remotely addressed.

11. Jewish Pro-life Foundation

Filed July 21, 2021

The Coalition for Jewish Values, Rabbi Yacov David Cohen, Rabbi Chananya Weissman, and Bonnie Chernin (President, Jewish Life League)

Glory to God! This is largely a Bible study that addresses Deuteronomy 30:19, Exodus 21:22-25, Exodus 23:7, Genesis 9:6-7, Isaiah 49:1, Jeremiah 1:5, Jeremiah 22:3, Jeremiah 29:6, Jeremiah 29:11, Leviticus 18:21, Leviticus 19:16, Proverbs 24:11-12, Proverbs 31:8, Psalm 139:13-16, Psalm 106:35-38.

This brief doesn’t say so, but Roe “opened the door” to the relevance of a Bible study by saying the alleged failure of doctors and preachers “to arrive at any consensus” about “when life begins” was Roe’s principal reason why “the judiciary, at this point in the development of man’s knowledge, is unable to speculate” about whether babies are people. Roe thus treated theology as highly relevant, and yet Roe analyzed no Scripture. This cries out for correction and updating.

This pleading to the Court is Amici’s attempt to rescue innocent children in the womb from execution, as commanded in our Bible, Proverbs 24:11-12: “Rescue those being led away to death; hold back those staggering toward slaughter. If you say, ‘But we knew nothing about this’, does not He who weighs the heart perceive it? Does not He who guards your life know it? Will He not repay everyone for what they have done?”

This brief begins by asking for more than just to outlaw abortions after 15 weeks: “The Mississippi law in this case seeks to protect the God-given right to life for babies of 15 weeks gestation and beyond. Yet, most significant developmental milestones occur during the first eight weeks following conception. A baby’s heart beats at 22 days, and her brainwaves can be measured at 6 weeks. At 9 weeks all internal organs are present and the baby is sensitive to touch. As early as 8 weeks, the ‘infant’ feels real physical pain during an abortion.”

“.... Jeremiah 22:3 admonishes us to avoid causing pain and death to the powerless: Do what is right and just; rescue the wronged from their oppressors; do nothing wrong or violent to the stranger, orphan or widow; don’t shed innocent blood in this place.’”

The brief asks nothing less than overturning of Roe, Doe, and Casey. Not explicitly asked for but strongly implied is also protection of the unborn, meaning not allowing any state to keep abortion legal: “Amici implore the Court to study our arguments in this filing and thereby find the moral authority and conviction to overturn Roe, Doe and Casey. Indeed, to apply the protective elements of the 14th Amendment of the Constitution to all children.”

The brief makes a claim for Judiasm which is even more so a claim for its Bible, which of course is shared with Christians. It is a claim about what the Bible did first. But stating what the Bible pioneered actually understates its uniqueness, because to this day no other religion, except to the extent it was influenced by the Bible, supports these rights and freedoms:

“Judaism Is The Original Pro-Life Religion. It Was The First Religion In Human History To Sanctify Human Life From Conception To Natural Death And To Prohibit Child Sacrifice.

“Judaism has a strong legal tradition of protecting human life and prohibiting the murder of innocents. Jewish law and tradition emphasize and support the moral right to life for all human beings at every stage of development based on the understanding that all people are created in the image of God; therefore, each of us has intrinsic value and worth with a destiny to fulfill God’s vision for humanity on Earth.

“Psalm 139:13-16 reveals this: ‘For you created my inmost being: you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made . . .My frame was not hidden from you when I was made in the secret place. When I was woven together in the depths of the earth, your eyes saw my unformed body. All the days ordained for me were written in your book before one of them came to me.’”

…. “All of us who are able to do so have the duty to enforce this right of the child in the womb: Leviticus 19:16: ‘Do not stand idly by when your neighbor’s life is at stake.’”

…. “The Almighty gives clear instructions on the life issue in Deuteronomy 30:19: ‘This day I call the heavens and the earth as witnesses against you that I have set before you life and death, blessings and curses. Now choose life, so that you and your children may live.’”

…. “Maimonides, declared in his compilation of Jewish law, the Mishneh Torah: ‘The definition of murder according to the Noahide Laws includes a person “who kills even one unborn in the womb of its mother,” and adds that such a person is liable for the death penalty.’”

“The Talmud (Sanhedrin 57b) says that an unborn child is included in the Noahide prohibition of bloodshed that is learned from Genesis 9:6-7: (from a direct translation of the original text), ‘He who spills the blood of man within man shall have his blood spilt for in the image of God made He man. And you, be fruitful, and multiply; swarm in the earth, and multiply therein.’ The Talmud interprets ‘the blood of man in man” to include a fetus, which is the blood of man in man.’”

…. “Clearly, the Jewish religion prohibits child sacrifice, the modern day version being abortion, as stated in the Torah: Leviticus 18:21: ‘Do not give any of your children to be sacrificed to Molek, for you must not profane the name of your God. I am the Lord.’ Psalm 106:35-38: ‘They mingled with the nations and adopted their customs. They worshiped their idols, which became a snare to them. They sacrificed their sons and their daughters to false gods. They shed innocent blood, the blood of their sons and daughters, whom they sacrificed to the idols of Canaan, and the land was desecrated by their blood.’”

Rabbinical opinion prohibits even helping non-Jews abort – even for “physical abnormalities”.

Rabbi Chananya Weissman: “It should not need to be debated that unborn children have the right to be born, and the lives of the elderly and infirm are no less precious than the lives of society’s most fortunate. The rich and powerful do not have the right to decide the value of anyone’s life, nor when someone has ‘already lived their life’ and it’s time for them to go. That is strictly the purview of God, who forbids us to make such distinctions or calculations, even for the alleged ‘greater good.’ It is always for the greater evil. It is always to displace God. The Torah teaches that every life is a unique world, and every moment of every life is infused with the potential to achieve great spiritual heights.”

Rabbi Pinchas Teitz: (Commenting on Deuteronomy 21:7): “Shedding innocent blood in Jewish life is so reprehensible that at times even those not responsible for the act of murder who hear of such an incident must dissociate themselves from it. This is expressed by the recitation of the elders of the city in whose proximity a dead man is found. In the eglo arufo ceremony that the Torah mandates, they must wash their hands, saying: ‘Our hands did not shed this blood,’ even though there is no reason to assume that they were directly involved in the death. How, then, are we to respond with less than shock to the killing of 100,000 fetuses through abortion in Israel, year after year? This is certainly a sin against Torah . . . It is a crime against Jewry, against mankind, and even against the Land itself—for the Torah clearly warns that the Land, in its sensitivity to corruption, can tolerate no bloodshed.”

In Jewish law the only time abortion is permitted is to save the life of the mother. The brief doesn’t give a reference from the Bible, but a footnote explains, “One who is ‘pursuing’ another to murder him or her. According to Jewish law, such a person must be killed by any bystander after being warned to stop and refusing.” This describes a kind of self defense or defense of others. Scriptures I think of are: 2 Samuel 2:18-23, where Abner begged Asahel not to attack him, but Asahel refused so Abner killed him. Or Exodus 22:2 which excuses a homeowner for killing a thief who breaks in at night.

I particularly appreciate the brief’s analysis of Exodus 21:22-25, the ONLY citation of the Bible included in Roe v. Wade, in a footnote. The brief says: “A note about Exodus 21:22-25, the mistranslation of which has led many to conclude that Judaism condones the mass slaughter of infant life.

“This conclusion is entirely false. The verse describes a case in which fighting men in close proximity to a pregnant woman inadvertently cause a miscarriage. The Torah specifies that the guilty party would be prosecuted for involuntary manslaughter only if the pregnant woman herself dies. If the infant in the womb dies, they must pay only a monetary fine.

“Long used by abortion advocates to reframe abortion as legal in Judaism, this text is not a license to abort infant life; rather, it is a reference to involuntary manslaughter requiring an adjudicated fine. It is not a capital crime.

“...This verse must be carefully understood. Many translations read ‘and a miscarriage occurs’ rather than as ‘a premature birth results’ as I have it here. The passage, in my opinion, is to ‘a premature birth’ when the context is considered. The text actually says that if the child ‘departs’ [“yasa”] the womb and no other damage ensues from the event. In other words, if because of the struggle the baby is born early but is otherwise fine, then the men may be required to pay damages for their carelessness but no more. ‘But if other damage ensues,’ i.e. the baby is born with some deformity or born dead, then the standard penalties will apply, ‘an eye for eye, tooth for tooth’. If the child dies as a result, the men are guilty of the murder, a life for a life. The text makes no sense any other way. The Hebrew term shachol references an abortion or miscarriage. That word is not used here. There is conclusive evidence that both Torah and Rabbinic halacha regarding the pre-birth child as fully human and subject to the same protections and respect as all other people.”

(I will further note that the penalty is to be decided by a jury. I take this as so the jury can take into account eyewitness testimony about how deliberately the woman was struck. Did a man deliberately aim his fist at her? Did she insert herself into the dispute so much as to make her injury unavoidable?)

More Scripture: “Our tradition teaches us to advocate for vulnerable and victimized targets of abuse and murder. Proverbs 31:8 demands, ‘Speak up for those who cannot speak for themselves.’ We acknowledge the harms done by abortion and speak out to prevent them.”

The brief is the only one to note fornication as another deadly (spiritually and physically) consequence of abortion: “Abortion has become an accepted means of birth control, encouraging irresponsible, dangerous sexual activity leading to an explosion of sexually transmitted disease. Women die from legal abortion.”

Scripture is cited in sympathy for the loss to men of abortion: “It is now confirmed that men grieve lost fatherhood, resulting in broken relationships and dysfunctional family life. We heed Jeremiah 29:6, emphasizing the importance of the family even in difficult times: ‘Marry and have sons and daughters; find wives for your sons and give your daughters in marriage, so that they too may have sons and daughters. Increase in number there; do not decrease.’”

“Judaism’s biblical tradition identifies the child in the womb as precious, valuable and unique. Isaiah 49:1: ‘Before I was born the Lord called me; from my mother’s womb he has spoken my name.’ And Jeremiah 1:5: ‘Before I formed you in the womb I knew you, before you were born I set you apart, I appointed you as a prophet of nations.’”

Evidence of the regard for unborn human life in Jewish law: “when human life is endangered, a Jew is required to violate any Sabbath law that stands in the way of saving that person. The concept of life being in danger is interpreted broadly; for example, it is mandated that one violate the Sabbath to take a woman in active labor to a hospital. Jewish law also not merely permits, but demands, that the Sabbath be violated in order to save infant life in the womb. As lifesaving activity is the only situation in which a Sabbath violation is permitted, were the infant child not deemed alive by the Torah, this behavior would be entirely prohibited.”

“Abortion industry practices dramatically contrast with Jewish ethics and moral guidelines in business, cleanliness, sexual propriety, responsibility to protect friends and neighbors from harm, honesty, and women’s safety.

“Exodus 23:7 admonishes us: ‘Keep away from fraud, and do not cause the death of the innocent and righteous; for I will not justify the wicked.’

“Abortion providers have long been exempted from standard medical practices and regulatory oversight. They perpetuate sex crimes by routinely failing to report evidence of sexual assault and sex trafficking. They fail to provide informed consent to patients and fail to counsel patients on alternatives to the abortion procedure or possible immediate and long-term negative consequences of the procedure.”

…. “Judaism prohibits desecrating the human body, but abortion destroys a human body, and the harvesting of baby parts for profit defies Jewish respect for the dead.”

“Today, the Justices have all the information needed to fully understand and acknowledge the status of the infant life, and have done so in Gonzales, at 159, 160. From conception onward, children in their mother’s womb manifest humanity to such an extent that only a decision that protects their lives and futures is humane and just.”

The rest of the brief reports striking parallels between the Jew-dehumanizing rhetoric of Nazi Germany and the baby-dehumanizing rhetoric of American abortionists. Except that “only” 6 million Jews were slaughtered in Germany, compared with 60 million babies in America.

I didn’t know the abortion pill, RU486, is actually the same chemical Hitler used to gas Jews, when it was called Zyklon B! “The Population Council brought the abortion pill to the United States in 1994. Originally called Zyklon B, Nazi scientists developed it in gaseous form to kill Jews in concentration camp ‘showers.’62 RU 486 is now used in 40% of all abortions due to inflated pricing and low overhead costs.” https://www.lifenews.com/2014/02/23/company-that-madezyklon-b-for-nazi-holocaust-made-ru-486-for-abortions/

“In a 1999 speech in Washington, D.C., Mr. Ellie Wiesel stressed our obligation to defend the defenseless. ‘We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.’”

The conclusion is the most magnificent I have read, which it would not have been without quoting God: “We must end abortion, an appalling crime against humanity. To begin the process of reconciliation with our Creator, to restore the dignity of those who have perished, and to return our country to a life affirming nation. Amici ask the Court to rise above political concerns and to contemplate the Divine promise bestowed upon every human being as pledged in Jeremiah 29:11: ‘For I know the plans I have for you, declares the LORD, plans to prosper you and not to harm you, plans to give you hope and a future.’”

---

(My online account is out of red ink, but the entire section from here to the end is included in Statement of Fact #4, Footnote #2)

     Jewish Prolife Foundation [1]

This tragic human rights violation must be remedied. The Mississippi law in this case seeks to protect the God-given right to life for babies of 15 weeks gestation and beyond. Yet, most significant developmental milestones occur during the first eight weeks following conception. A baby’s heart beats at 22 days, and her brainwaves can be measured at 6 weeks. At 9 weeks all internal organs are present and the baby is sensitive to touch.4 As early as 8 weeks, the “infant”5 feels real physical pain during an abortion.6 This is much sooner than the 15-week issue before the Court, a gestational age when the pain felt by the baby must surely be considered. Jeremiah 22:3 admonishes us to avoid causing pain and death to the powerless: “Do what is right and just; rescue the wronged from their oppressors; do nothing wrong or violent to the stranger, orphan or widow; don’t shed innocent blood in this place.”

     Footnotes:
     4 Endowment for Human Development. Prenatal Summary. https://www.ehd.org/prenatal-summary.php
     5 Gonzales 159, 160
     6 5 Gonzales 159, 160.
     6 Expert Tells Congress Unborn Babies Can Feel Pain Starting at 8 Weeks. Ertelt, Steven. May 23, 2013. LifeNews. https://www.lifenews.com/2013/05/23/expert-tells-congress-unborn-babies#can-feel-pain-starting-at-8-weeks/
     Center for Medical Progress and David Daleide www.supremecourt.gov /DocketPDF/19/19-1392/185155/20210728163153060_Amici%20Brief%20of%20CMP-Daleiden.pdf]

1. By 15 weeks’ gestation, the human infant in the womb unmistakably manifests “the human form” identical to any other member of our community. Gonzales v. Carhart, 550 U.S. 124, 160 (2007). Ironically, it is precisely from this point when the fetus becomes most recognizably a fellow human being, that the fetuses vulnerable to abortion become most useful as an experimental biologic “resource.” Even though four-month-old infants in the womb move, kick, suck their thumbs, hiccup, and demonstrate a readily discernable heartbeat and brainwaves, App. 65a,4 and even though the Constitution guarantees that “neither slavery nor involuntary servitude” shall exist in America nor that any person be deprived of life without due process of law, U.S. Const., amends. XIII § 1, XIV § 1, these same children can be routinely killed through livedismemberment abortions or trafficked and sold for experimental use. (Page 3)

     Footnote: 4 Katrina Furth, Fetal EEGs: Signals from the Dawn of Life, ON POINT SERIES 28 (Nov. 2018), https://lozierinstitute.org/fetal#eegs-signals-from-the-dawn-of-life/; Winslow J. Borkowski & Richard L. Bernstine, Electroencephalography of the Fetus, 5(5) NEUROLOGY 362–65 (May 1, 1955)
     National Catholic Bioethics Center, et al. [www.supremecourt.gov/ DocketPDF/19/19-1392/185239/20210729121001402_19-1392%20tsac%20National%20Catholic%20Bioethics%20Center.pdf]

Mississippi’s law is partially based on legislative findings pertaining to the advanced development and obvious humanity of pre-born children at the gestational age of fifteen to twenty weeks. Pet. at 7-9. At twenty-two days, the child’s heart begins to beat. https://www.ehd.org/your-life-before-birth-video/ (last visited July 15, 2020). At six weeks, the child begins moving. Id. At seven weeks, scientists can detect a child’s brainwaves, and the child can move his or her own head and hands. Id. The child also displays leg movements and the startle response by that time. Id. At eight weeks, the child’s brain exhibits complex development. Id. (p. 14)

12. Alabama Center for Law and Liberty

Filed July 23, 2021

“ACLL believes that life begins at the moment of fertilization and that unborn children are people entitled to equal protection of the law.” This statement falls short of claiming unborn “personhood” is an objective fact. It also falls short of proving it is an objective fact. This phrasing treats it as ACLL’s subjective “belief”.

Supposing ACLL’ “belief” to be true, then murdering the unborn violates the 14th Amendment: “The Framers of the Fourteenth Amendment believed that God gave every person the natural right to life and that unborn children were ‘people’ entitled to the Amendment’s protection. Consequently, laws that protect everyone from murder except unborn children violate the Equal Protection Clause.”

ACLL asks that abortions after 15 weeks be outlawed. That requires the Court to overturn Roe’s claim that a state can’t protect babies before “viability”.

ACLL therefore points out something illogical about the “viability” standard: “if a person’s right to life is dependent on his ability to survive without the help of others, then most people would not have a right to life. Most of us wake up each day in a dwelling that was built by someone else, eat food that was grown by someone else, drink water that was sent to our house by someone else, go to work in a car that was built by someone else, and provide goods or services to someone else in exchange for payment...”

ACLL notes “we know far more about prenatal life now than we did when Roe and Casey were decided”, but none of what we now know is offered as evidence proving the veracity of ACLL’s “belief” that “life begins at the moment of fertilization and that unborn children are people entitled to equal protection of the law.”

Inconsistency in law through abortion precedents is given as a reason to overturn Roe: “criminal law, tort law, guardianship law, health care law, property law, and family law often treat the unborn as persons, leaving abortion as an outlier.”

ACLL asks more than any other brief: not just that Roe be overturned, but that all unborn babies be protected, which means no state could keep abortion legal: “C. The Court Should Not Only Overrule Roe but Also Hold That the Constitution Protects the Child’s Right to Life.”

Why should the Court do that? ACLL offers another “if...then” argument: “Roe itself conceded that if an unborn child is a person, the case for abortion collapses, because the child’s right to life would be specifically guaranteed by the Amendment. Roe, 410 U.S. at 156-57. The Court was correct in that regard.”

Well, yes, Roe was right, but Roe didn’t, 50 years ago, think an unborn child being a “person” was “established”. Is it established now? Surely it is now that every court-recognized fact-finder that has taken a position has ruled unanimously, but ACLL didn’t mention that evidence, or any other evidence over the past 50 years.

ACLL continues: “The Fourteenth Amendment states, in relevant part: “nor shall any State 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.” U.S. Const., amend. XIV, § 1 (emphasis added).”

But ACLL offers no evidence because “other amicus briefs are developing this point in more detail” so ACLL will only observe that the question has “gained considerable attention” and “has also been debated in conservative academic circles.” Well, that’s news, isn’t it? Many cites are given, but no quotes or conclusions.

One cite that I appreciate is “Charles I. Lugosi, Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence, 4 Geo. J. L. & Pub. Pol’y 360 (2007).”

My book, “How States can Outlaw Abortion in a Way that Survives Courts”, points out that one definition of “persons” in Roe itself is “recognizably human”. No case law supports the strange notion that there are human beings who are not “persons”.

An appeal is made to the beliefs about the unborn of our ancestors: “Blackstone said, ‘Natural persons are such as the God of nature formed us.’ 1 Blackstone, Commentaries *123. ‘The principle of Blackstone’s rule was that “where life can be shown to exist, legal personhood exists.’” Craddock, supra, at 554-55.12 Given that the dominant view at the Fourteenth Amendment’s passage was that life begins at conception, there is a strong case that the Fourteenth Amendment applies to unborn children.”

This is a strong attack on Roe’s logic that “the unborn have never been treated by our laws as persons in the whole sense”, and this approach invokes the legal principle that what the Constitution meant when it was enacted is what we should follow now until Americans choose to change it.

Of course, whatever any culture of any past century thought about it, unborn babies are, and always have been, in fact, fully human beings. But this evidence of court-recognize fact finders from past centuries merits inclusion with the consensus of court-recognized fact finders over Roe's 49 bloody years, including juries, expert witnesses, state legislatures, Congress, and individual judges who took a position on "when life begins".

After its history lesson, ACLL concludes with another “if...then” argument: “Thus, if all people are endowed with their Creator with the unalienable gift of life, and if unborn children are people, then the States may not deny equal protection of the laws to them.”

“If”? “If”?

“Therefore, this Court should not only overrule Roe and its progeny but also hold that the Fourteenth Amendment protects unborn children from abortion. If this is too far for the Court to go in the present case, then it should at the very least refrain from foreclosing that question from being presented in the future.”

ACLL deserves credit for its strong, clear request for protection of the unborn: It is a “fact that Americans viewed unborn children as people when they ratified the Fourteenth Amendment. As Roe itself conceded, establishing the suggestion of personhood would make the case for abortion collapse. Roe, 410 U.S. at 156-57.”

13. National Right to Life Committee and Louisiana Right to Life Federation

Filed July 23, 2021

“b. States may assert an interest in protecting preborn, individual human life, including against pain, during all periods of pregnancy.” That was a subheading. The subject was given 152 more words which did not say babies are “human life”, or present supporting evidence, or point out that legal abortion must end when that is acknowledged.

14. Jewish Coalition For Religious Liberty

Filed July 26, 2021

“Given the arguments made in prior cases, JCRL is concerned that proponents of a constitutional right to abortion will assert a novel “religious-veto” view of religious liberty that, if accepted, would make it more difficult for sincere religious adherents to obtain accommodations in future cases.”

Religious proponents of a constitutional right to abortion have previously offered a novel view under which their religious views would dictate what laws may govern every American, even those with different faiths or no faith at all. This Court should reject that novel “religious-veto” view as it would ultimately diminish religious liberty for everyone.

2 Letter From George Washington to the Hebrew Congregation in Newport, Rhode Island, 18 August 1790, FOUNDERS ONLINE, (https://founders.archives.gov/documents/Washington/05-06-02-0135) (last visited July 13, 2020) (“[T]he Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.” In this country, “every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”). 3 Zorach v. Clauson, 343 U.S. 306, 313 (1952) (“We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.”). from targeting religious activity,4 require state actors to treat religious conduct as favorably as comparable secular conduct,5 or prevent the government from substantially burdening religious activity unless doing so is necessary to further a compelling government interest.6 These traditional Free Exercise protections require that the state accommodate religious exercise, but they do not prevent government entities from enforcing laws against Americans who lack religious objections.7

4 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

5 Tandon v. Newsom, 141 S. Ct. 1294 (2021).

6 Holt v. Hobbs, 574 U.S. 352 (2015).

7 Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (creating a religious accommodation to exempt Amish parents from having to send their children to formal high-school while confirming that, “[n]othing we hold is intended to undermine the general applicability of the State's compulsory school-attendance statutes … .”).

Such protections help ensure that religious adherents can fully participate in civil society without having to abandon their faith.8 Importantly, they protect religious adherents without requiring that the rest of society follow their faith.9

8 Sherbert v. Verner, 374 U.S. 398, 404 (1963) (finding it unconstitutional for the government to force a religious adherent to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”); Braunfeld v. Brown, 366 U.S. 599, 616 (1961) (Stewart, J. dissenting) (“Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand.”)

9 Fulton v. City of Philadelphia, Pa., No. 19-123, 2021 WL 2459253, at *9 (U.S. June 17, 2021) (“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else”); id. at *20 (Alito, J. concurring) (“the text of the Free Exercise Clause gives a specific group of people (those who wish to engage in the ‘exercise of religion’) the right to do so without hindrance”). 10 See e.g., Brief for American Jewish Congress, et. al., as Amici Curiae at 4, Webster v. Reprod. Health Servs., No. 88-605, 492 U.S. 490 (1989) (“given the dramatically contrasting religious views about whether and when abortion is permitted or required, state statutes drastically curtailing access to abortion

In the past, religious supporters of a right to abortion have advocated for a novel conception of religious liberty that is incompatible with this traditional understanding. In their view, the fact that some religions may allow or even require women to obtain abortions should cause this Court to recognize a general constitutional right to abortion. See Brief for 178 Organizations as Amici Curiae in Support of Respondents at app. a, Planned Parenthood of Se. Pa. v. Casey, Nos. 91-744, 91-902, 505 U.S. 833 (1992) (“in the face of the great moral and religious diversity in American society over abortion and in the light of Jewish traditions which in some cases command abortion, and in many others permit it, the existing constitutional rules, set down by Roe v. Wade, should be maintained ... .”) (citation omitted). The “right” that such advocates propose would not be limited to protecting the religious exercise of objectors. Instead, it would prohibit states from pursuing their interest in protecting the lives of unborn children, even in instances that would not impact adherents’ exercise of their faith.10 The proponents of such a right thus do not seek to ensure that they can fully participate in society without compromising their religious exercise; they seek to yoke the rest of society to their theological preferences.

This novel “religious-veto” view of religious liberty is inconsistent with this Court’s precedents and, if given credence, would make it more difficult to protect religious liberty in the future.

At first glance, a doctrine that would allow religious adherents to entirely block the state from pursuing goals with which they disagree—extending beyond protecting their own free exercise—might seem appealing to religious liberty advocates. However, such a novel and imperious regime would quickly prove untenable, especially in a large and religiously diverse country.

Under the religious-veto view of the Free Exercise Clause, every decision in favor of a religious adherent would entirely foreclose the state from pursuing its chosen interests. Such paralysis is not desirable, nor should it be the goal of those who seek to foster a religiously free and diverse nation.

In the long term, the novel “religious-veto” view would diminish protections for religious exercise.

[In other words, PP was not just demanding “free exercise of religion” for believers, but “free exercise of religion” to murder unbelieving babies, undercutting the value of any “compelling government interest” in saving lives, and the fundamental right to life of human babies.]

In Employment Division, Department of Human Resources of Oregon v. Smith, this Court worried that applying the then existing system of religious accommodations might be “courting anarchy.” 494 U.S. 872, 888 (1990). Amicus vigorously disagrees that granting religious accommodations poses such a risk and believes the Court should overrule Smith. In fact, this Court has recently loosened Smith’s strictures, and has signaled that it may reconsider them entirely. However, the novel religious-veto rule proposed by supporters of a right to abortion would legitimize Smith’s concerns.

Granting every religious person in America an absolute veto over any law that burdens his faith might in fact be “courting anarchy.” In order to avoid the negative consequences that would predictably follow from accepting a religious-veto theory of religious liberty, courts would likely either double-down on Smith’s restrictive reading of the First Amendment or adopt a new and even less favorable framework for granting relief to religious adherents. Fortunately, religious vetoes are not what the First Amendment or this Court’s precedents require.

Even if courts continued to apply something resembling the current standards, religious liberty proponents would be less likely to prevail under the religious-veto approach than they are under the existing religious-accommodation approach.

Currently, the government can only burden an adherent’s religious exercise if it can show that “the asserted harm of granting specific exemptions to particular religious claimants” is of the highest magnitude.11 That analysis, which is favorable to religious objectors, only makes sense so long as the remedy is an individual exemption. Under the religious-veto approach, courts would have to analyze the harm of completely negating a law because exemptions would no longer be limited to the specific objectors. In other words, courts would have to determine whether the government has a compelling interest in enforcing a law at a societal rather than to any one person at an individual level. Such an analysis is far less favorable to religious adherents than the current test.

15. Catholic Medical Association, National Association of Catholic Nurses-USA, Idaho Chooses Life and Texas Alliance for Life

Filed July 26, 2021

This entire brief attacks the subjectivity of Roe’s “viability” standard. The lower courts had overruled Mississippi’s 15 week abortion ban on the ground that 15 weeks is before “viability”, and states have no legitimate interest in regulating abortion before viability.

The CMA conclusion: “...It is an illusory distinction without legal or practical significance. Roe has pretended to be what it is not for long enough. It should be overturned so that states once again may provide legal protection for unborn human life.”

No evidence is offered to prove the unborn are human to judges who profess not to be able to “speculate” about such deep subjects.

One point I found interesting: “The Court [in Roe] provided no explanation as to why the state’s interest in protecting human life should grow substantially as the unborn child grows and develops during the pregnancy. Nor did the Court attempt to explain why the state’s interest in protecting unborn human life just prior to viability should be nonexistent and then suddenly appear just after viability.” Respect for human life of course accords all human life “equal protection of the laws”. Without that uniquely American, uniquely Biblical respect, prejudice, dehumanization, and slavery face no restraint.

16. African-American, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations and Leaders

Filed July 26, 2021 by Mathew D. Staver, Liberty Counsel

This brief associates abortion, abortionists, and abortion-supporting courts, with the Eugenics movement “THAT ELIMINATES “LESS DESIRABLE” RACES AND CERTAIN CLASSES OF PEOPLE TO EVOLVE A SUPERIOR HUMAN POPULATION.” It starts off with a shot at the district judge who insulted Mississippi’s motives as part of a long string of racist denials of rights; this Liberty Counsel brief accuses the whole abortion movement, including Roe, Doe, Casey, etc. as the gold standard of racism.

“The sinister goal of the eugenics movement was to eliminate ‘unfit’ and ‘undesirable’ people—those with mental and physical disabilities as well as certain races.”

LC points out the rest of the title of Darwin’s racist “Origin of Species” which today’s atheists normally leave out of their proud citations: “or, the Preservation of Favoured Races in the Struggle for Life”! Many quotes are given from Darwin’s 1871 book, “The Descent of Man”, which must be terribly embarrassing for any atheist or evolutionist. He makes a Ku Klux Klan Grand Wizard look like a paragon of intelligence and tolerance.

You’ve just got to go to this link and read it. This guy’s tirades are a sight to behold!

Then it’s Margaret Sanger’s turn. Wow! The district judge had derided Mississippi which “sterilized six out of ten black women” at a local county hospital “against their will.” Well, LC points out that was the doings of Margaret Sanger, the heroine of that district judge.

Then it was the Supreme Court’s turn!

“In Buck, the Court approved the compulsory sterilization of an allegedly ‘feeble minded’ woman who had been falsely adjudged ‘the probable potential parent of socially inadequate offspring.’ Buck, 274 U.S. at 205, 207. In a short opinion, Justice Oliver Wendell Holmes, Jr., joined by seven other Justices, ‘offered a full-throated defense of forced sterilization...as a means to ‘prevent’ society from being ‘swamped with incompetence’”

6 out of 10 sterilized at one hospital, the district judge says? That’s nothing: “between 1907 and 1983, more than 60,000 people were involuntarily sterilized” with a boost from the Supreme Court’s 1927 ruling!

What an admission from Justice Ginsberg: “And as the late Justice Ginsburg once observed: ‘[A]t the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding of abortion.’”

Now the tie-in to abortion today: The racism, the extermination of blacks especially, is not just in the past. It’s now. “In Mississippi, 3,005 abortions were reported in 2018. Of those abortions, 72% were performed on black women, compared to just 24% on White women and 4% on women of other races.” There are pages of stats like that. “The racial disparity in abortions is largely intentional: A study based on 2010 Census data shows that nearly eight out of ten Planned Parenthood abortion clinics are within walking distance of predominantly Black or Hispanic neighborhoods. More specifically, Planned Parenthood intentionally located 86 percent of its abortion facilities in or near minority neighborhoods in the 25 U.S. counties with the most abortions. These 25 counties contain 19 percent of the U.S. population, including 28 percent of the Black population and 37 percent of the Hispanic/Latino population.”

The relevance to the case before us: “states have a compelling interesting in ‘preventing abortion from becoming a tool of modern-day eugenics.’ Id. at 1783. And that interest far outweighs this Court’s judicially fashioned distortion of the Constitution.”

So LC concludes, “The Court should condemn the district court’s disparaging rhetoric, reverse the decision below, and finally overrule Roe v. Wade and its progeny.”

17. Senators Josh Hawley, Mike Lee, and Ted Cruz

Filed July 26, 2021

Roe should be overturned, not because it legalizes murder of baby human beings, but because it is “unworkable”. That is, states have no idea what to expect of courts before they pass a law.

No evidence is offered that babies of people are people. No medical evidence, no mention of the unanimous establishment that “life begins” at the beginning, by every court-recognized fact-finder that has taken a position: juries, expert witnesses, state legislatures, congress, individual judges. The protection of babies, by legal recognition that they are fully human so no state can keep abortion legal, is not requested or, apparently, even thought of.

However, it may be that this brief, more than any other, strummed the heart-strings of the Dobbs justices to overturn Roe, because its focus was not on the cruelty towards unseen, unheard babies, but to the inconvenience for lawyers, lawmakers, and judges.

The reversal of Roe is sought. Of course if that is all that happens, without court recognition that babies are people, then abortion will still remain legal in many states.

Some excerpts:

“Justice Scalia called the undue burden standard ‘ultimately standardless’ and ‘inherently manipulable,’ with the result that it ‘will prove hopelessly unworkable in practice.’”

“Asking whether a state interest in protecting fetal life or ensuring informed decisions about abortion outweighs any burdens on the abortion decision is like asking ‘whether a particular line is longer than a particular rock is heavy.’”

“When the lower courts cannot consistently apply—or even understand—a standard after nearly thirty years of development, something is wrong.”

“Casey’s failure to provide adequate guidance for state legislatures has led national abortion rights organizations to immediately file for an injunction any time a law protecting prenatal life is enacted—if only to ‘give it a try.’ See, e.g., Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 218–19 (6th Cir. 1997) (Boggs, J., dissenting) (“The post-Casey history of abortion litigation in the lower courts is reminiscent of the classic recurring football drama of Charlie Brown and Lucy in the Peanuts comic strip.”

18. Trinity Legal Center

Filed July 26, 2021

TLC clearly states that babies are “human life”, which is clear from ultrasound, and is affirmed by Justice Scalia. Instead of offering evidence, an appeal is made to common knowledge. TLC’s affirmation does not affect what it asks of the Court: that is, an end to all legal abortion, since they are all murder, is not requested. Not even an end to Roe is asked. Only that Mississippi’s 15 week ban be allowed to stand.

Here is TLC’s affirmation of unborn life: “At the time these opinions were announced, the Justices repeatedly referred to the unborn child as ‘potential life.’ Because of advancement in medical science and technology, it is [now] known that life begins at conception. Thus, Justices O’Connor, White, and Scalia’s argument that the State has a compelling interest throughout pregnancy becomes more profound because the baby is not just a potential life, but it is the life of a whole, separate human being.

“Furthermore, from a medical perspective, the unborn child is treated as a separate patient.

“Justice Scalia further emphasized that the unborn child is not just potential life but human life. Thus, the State is protecting the human life of the unborn child and not just potential life. He stated: But ‘reasoned judgment’ does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere ‘potentiality of human life.’ The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life.”

Unfortunately, even Scalia’s statement falls short of a position. He reports it only as an “argument” which courts ought to address.

TLC says “The fourth factor focuses on changes in the facts. Since Roe, there have been many scientific and medical developments. Probably the most significant developments have been in ultrasound technology and fetal surgery. Ultrasound technology demonstrates that the unborn child is human life that is actually alive and shows the development of the baby.

"This undermines Roe’s claim that the unborn child is only potential life.”

The following statement seems to walk back an implication that all unborn babies are fully “human life”, but rather only those who survive to birth: “The presence of a heartbeat is a strong indicator that the child will survive to birth, therefore, debunking the idea that the unborn child is merely potential life.”

19. Thomas More Society

Filed July 26, 2021

This brief makes the argument that abortion is not a right “deeply rooted in the nation’s history, legal tradition, and practices” so it does not merit “special protection”. Therefore Roe should be overruled.

The Thomas Moore brief documents the regard for unborn human life over the centuries, but not to prove that the unborn are fully human so their lives must be protected by every state. The point of its history is rather to prove that Roe should be overruled because it was largely based on claims that unborn babies were never treated by our laws as “persons in the whole sense”.

It is a history of abortion law going back to the common law of England. It also reviews the laws of 30 states to show that in Unborn Victims of Violence Laws, where killing a pregnant woman is counted as a double murder, there is no distinction based on “viability”, so therefore the reliance of Roe and Casey on viability is unsupported in American law.

There were “scores of cases” between 1850 and 1870 where courts treated abortion as against laws “enacted with an intent to protect unborn human life.”

Since I am from Iowa, it is cool to see a holding from an Iowa court from that time: “In 1868, the Iowa Supreme Court, interpreting an 1858 statute, condemned abortion as ‘an act highly dangerous to the mother, and generally fatal, and frequently designed to be fatal, to the child.’ State v. Moore, 25 Iowa 128, 136 (1868).” A 1934 Idaho Supreme Court said its law was “to discourage abortions because thereby the life of a human being, the unborn child, is taken.”

To summarize, “more than sixty decisions from forty-two states have recognized that their nineteenth-century abortion statutes were enacted with an intent to protect unborn human life. Given this wealth of case authority, the Court’s conclusion in Roe that state court decisions ‘focused on the State’s interest in protecting the woman’s health rather than in preserving the embryo and fetus’...is unsupportable.”

Also, contrary to Roe’s claim, there was not an exemption for mothers from prosecution: “at least nineteen states criminalized the woman’s participation in her own abortion.” In the remaining states, women were not prosecuted either because they were considered co-victims, or because the woman’s testimony against the abortionist was needed but could not be compelled if she were treated as an accomplice, and because “in most states a criminal conviction cannot be based on the uncorroborated testimony of an accomplice.”

The Moore brief spends its final section attacking Roe’s “viability” rule. The brief concludes, “The court in Casey stated that ‘a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.’...If so, Amicus submits that there are more than 60 million special reasons to do so. Roe v. Wade should be overruled.”

Not asked for is a ruling that babies of people are people, making abortion murder, whose legality no state may permit.

20. Melinda Thybault Moral Outcry

Filed July 26

An interesting way to establish “standing” for a petition (defined not as a legal “petition”, or brief, before a court, but the popular sense of a short statement signed by a multitude) before the Supreme Court:

“Melinda Thybault and The Signers, as do all citizens, have the right to petition the United States government for redress of grievances. U.S. Constitution Amendment I. With all due respect, Amici believe the Supreme Court is the specific branch of their government which has committed this crime against humanity by forcing all states to legalize abortion. Therefore, Amici must bring their arguments to this Court, not Congress or the States.”

View the petition at https://themoraloutcry.com/wp-content/uploads/2017/05/the-moral-outcry-petition.pdf

Quoting a law school and a U.N. document, she summarizes: “A crime against humanity occurs when the government withdraws legal protection from a class of human beings resulting in severe deprivation of rights, up to and including death.” (See Crime Against Humanity at https://www.law.cornell.edu/wex/crime_against_humanity and see U.N. Office, Genocide Prevention, Crimes Against Humanity https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml; Treaty of Rome (1957). See also Convention on the Non-Applicability of Statutory Limitations to War )

She “adopted” children at the frozen embryo stage, and had them conceived through vitro fertilization, not just proving but demonstrating “living evidence that, with today’s science, viability begins at fertilization.” Unborn children literally are “viable” even from the embryo stage!!! Their sex can be determined six days after fertilization!

Her ground for reversing Roe? She cites a “Law of Judicial Precedent” authored by Justices Garner, Gorsuch, Kavanaugh, and Breyer, which says one ground for reversing precedent is “The decision has been met with general dissatisfaction, protest or severe criticism.” So she got a petition signed by over half a million citizens calling abortion a “crime against humanity”, and points out:

“Through The Moral Outcry Petition, over 500,000 Americans have correctly identified legalized abortion as ‘a crime against humanity’ which is very, very ‘severe criticism.’ With due respect to the Court, every single signature on the Moral Outcry Petition is, by itself, evidence under The Law of Judicial Precedent12 because each person calling abortion a crime against humanity is “severely” criticizing this Court’s abortion jurisprudence.”

This only adds to “continued ‘severe criticism’ for 48 years. Most reasonable observers would agree that Roe has been met with general dissatisfaction and major protest since its inception. The Court has an ethical and moral duty to never forget past crimes against humanity, to never stand by silently while one is occurring today, and to rescue the perishing.”

She updates Casey’s premise that abortion prevents “unwanted children” by pointing out that today’s “safe haven” laws have eliminated “unwanted children”. She makes the point without conceding that Casey’s excuse was ever justified: “Because of Safe Haven laws in all fifty states, [which permit mothers to easily give away their babies without being charged for neglect or abandonment] women can now have the “freedom” of Roe, and make their own decision about the ultimate direction of their life, without the crime against humanity of killing the child and injuring themselves.”

Under Safe Haven laws, a mother “can transfer responsibility to the state with no questions asked, no legal procedure, and unlike abortion, at no cost.”

The evidence that babies are people? She quotes a phrase from Gonzales: “Infant life” to prove “that this Court has already recognized exists in the womb when it is aborted.”

(The Gonzales context of the “infant life” quote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child....Whether to have an abortion requires a difficult and painful moral decision. ...it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”)

More evidence that babies are people: “new science, including but not limited to DNA testing, in vitro fertilization (IVF) and sonograms, which were not available to this Court in 1973, now show what the Roe Court did not know, or even the Casey Court, that life begins at conception.” But she doesn’t populate this claim with any details or evidence, thinking the Supreme Court already concedes that babies are people: “But the Court has now correctly found in Gonzales that abortion terminates an “infant life,” at 159 at the moment of the abortion.”

Roe v. Wade isn’t the Supreme Court’s first “crime against humanity”. “Abortion is a crime against humanity. Like Dred Scott v. Sanford, 60 U.S. 393 (1857), which purported to enshrine slavery in the Constitution forever. It is unjust. Dred Scott also decided unjustly that African Americans ‘had no rights which the white man was bound to respect’, at 400. The Dred Scott decision prevented national compromise from occurring and many commentators feel it eventually led to the Civil War. A crime against humanity occurs when the government withdraws legal protection from a class of human beings, as this Court did in Scott.

“...the Court has not yet fully reversed Roe, Doe, and Casey. No American citizen should have to live under, nor as history tragically demonstrates, should they stand by silently, while their government sanctions and even promotes crimes against humanity.” Another low point in the Supreme Court’s grasp of 14th Amendment equal rights, she mentions, was Plessy v. Ferguson, 163 U.S. 537 (1896) which, like Roe and Dred Scott, “denied legal protection to a class of human beings” and “ignored the plain language of the Fourteenth Amendment”. “Plessy accepted the gloss that ‘separate but equal’ was ‘equal’.”

She repeats, “When the government withdraws legal protection from a class of human beings, it is the classic definition of a crime against humanity.”

All nine justices know better, she demonstrates, by quoting them all calling the decision to abort “painful” and “difficult”. Five of the nine added “moral”. What could make such an allegedly “safe” “procedure”, which isn’t even expensive compared with most surgeries, either “painful” or “difficult”? Nothing can account for it, if babies are mere tumors or animals. Take it out! It doesn’t belong there! The only thing that can make the decision “painful” or “difficult” is that it is a decision to murder a healthy beautiful baby. That also makes it a “moral” decision. Removing a tumor or an animal is not a “moral” decision. By these words, all nine justices prove they know unborn babies of people are people.

And yet before this year, no state has asked the Court to outlaw abortion because it murders people.

“The Supreme Court in Gonzales unanimously came to the conclusion that abortion is a ‘difficult and painful decision,’ at 159. Gonzales stated, ‘Whether or not to have an abortion is a difficult and painful moral decision.’ The five-person majority consisted of Justices Kennedy, Roberts, Thomas, Alito and Scalia. The four Justices in dissent, Justices Ginsburg, Stevens, Souter, and Breyer, also said: ‘The Court is surely correct that, for most women, abortion is a painfully difficult decision.’ The dissent left out the word ‘moral’ as part of the difficulty. Gonzales, FN 7, at 183, per Ginsburg, dissenting. Thus, all nine justices agreed that abortion is ‘difficult’ and ‘painful.’ Why? Because at some level, most people ‘know’ or ‘sense’ that abortion kills a human life.”

Even abortionists admit they know better: “Planned Parenthood has recently admitted through its chief physician in Missouri, that: “Sometimes the choice to end a pregnancy, even when it is a highly desired one, is a really difficult one for people”, Dr. Eisenberg, Planned Parenthood St. Louis Clinic Director.23 Abortionist Lisa Harris states: “I know that for every woman whose abortion I perform, I stop a developing human from being born . . . Abortion feels morally complicated because it stops a developing human being from being born, which, of course, it does.”24 (23 NBC News, nbcnews.com by Ericka Edwards and Ali Galarte, May 28, 2019. 24 “My Day as An Abortion Care Provider,” Oct. 22, 2019, New York Times OP/ED.)

Mothers know better, although not necessarily in time. What “devastating psychological consequences” for mothers could follow successful removal of cancer?!! But Casey acknowledges they often follow an abortion, Melinda points out. “Many, many women are morally conflicted as this Court has recognized. Many women feel they have murdered their own child, with devastating consequences.” (The full sentence from Casey: “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”)

Even the “Roe” of “Roe v. Wade” came to know better: “The affidavit of Norma McCorvey, the ‘Roe’ of Roe v. Wade describing her experience working in the abortion industry, which changed her mind about abortion and caused her to seek reversal of her case, is still on file in McCorvey v. Hill, 385 F. 3d 846 (5th Cir. 2004) (cert. denied) (Supreme Court Docket No. 04-967).” (“Cert. denied” is the Supreme Court’s way of saying they were too busy to deal with her.)

“Safe Haven” laws let a mother give her baby, no cost, no guilt, to any medical facility or fire station. Even small towns have fire stations. In Mississippi a mother has three days to do that. Rules vary with the states; in North Dakota, mothers have up to a year after birth. Mothers have nine months to decide. Mississippi Medicaid covers all prenatal costs for low income mothers. Contrasted with the high pressure abortion decisions, the high cost of abortion, the limited availability of killing centers, and the guilt.

Safe Haven babies don’t languish in foster care for years. A footnote to a news article: “Thousands line up to adopt Safe Haven baby”.

Why are Safe Haven laws a reason to reverse Roe?

“The burden of an ‘unwanted’ child was a large factor in the Court’s analysis in Roe itself and Casey. ‘Maternity or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.’ Roe, 410 U.S. 113 at 153.”

Viola, these needs are now met by Safe Haven laws, without cost, the inconvenience of long distance travel, guilt, or murder. There are no unwanted children. “This is a major, substantial change in circumstances that has never existed before in American history.”

“As a fourth major ‘change in circumstances,’ at least two million Americans every year are now waiting to adopt newborn children. Far more people are waiting to adopt newborns than the number of aborted children per year.37 This development satisfies Casey’s stare decisis reliance test because there is no longer a need for abortion to give freedom from unwanted children to women.”

(37 www.AmericanAdoptions.com/pregnant/waiting_adoptive_families)

“Fifth, Today Science Clearly Demonstrates That Life Begins At Conception. New Scientific Advances Justify Changing Prior Precedent Under Stare Decisis.”

“Supreme Court opinions [that are based on old science] should change when science advances. No society or court should be stuck in 1970’s science. One simple example is that DNA testing was not even used in the courts until the mid-1980’s. Anonymous DNA testing of the “infant life” in the womb and a DNA sample from the mother now shows that two separate humans exist. Sonograms, another example which started after Roe, convinced Dr. Bernard Nathanson, the founder of NARAL, as it should this Court, that he was wrong to kill innocent human life.”

Court recognition of Life: “The Eighth Circuit Court of Appeals has already upheld South Dakota’s law requiring abortionists (against their will and financial self-interest) to tell a woman that ‘abortion will terminate the life of a whole, separate, unique, living human being,’ defined as a member of the human species (Homo sapiens). Planned Parenthood v. Rounds, 530 F. 3d 724 (8th Cir. 2008) (en banc). The Eighth Circuit reviewed the voluminous evidence and determined there was adequate scientific evidence to uphold the law, which was “act based, not opinion or ideology, just as this Court has courageously done in recognizing the child in the womb as ‘infant life’ in Gonzales.

Several quotes from federal appeals courts about the need to reconsider Roe concluded with this zinger: “In sum, if courts were to delve into the facts underlying Roe’s balancing scheme with present day knowledge, they might conclude that the woman’s ‘choice’ is far more risky and less beneficial, and the child’s sentience far more advanced than the Roe Court knew.’ McCorvey v. Hill 385 F.3d 846 page 11 (5th Cir. 2004) (cert. denied)”

What an understatement: “In the case of a crime against humanity, it is the duty of the Court to correct its own error. All judges should be open in appropriate cases, to considering evidence that killing ‘infant life’ in the womb is wrong, and that changes in circumstances have produced sound and necessary reasons for reversal.”

Although Melinda’s evidence and argument supports asking the Court to outlaw all abortion across America, her conclusion only asks that Mississippi be allowed to keep its 15 week ban, and that Roe be overruled (leaving individual states to decide whether to keep abortion legal).

21. The Becket Fund for Religious Liberty

Filed July 27, 2021

Becket's question for SCOTUS: "Whether the Roe/Casey framework should be replaced in order to reduce the number and intensity of religious liberty conflicts".

Examples of "religious liberty conflicts": "Surely the federal government has many ways to distribute contraceptives to American women without dragooning the Little Sisters of the Poor [an adoption agency] or other religious nonprofits....And surely state governments have many ways to ensure access to abortion without involving churches. But the shadow of Roe and Casey prompted these governments to deny exemptions to religious groups, or to eliminate religious exemptions that had existed for decades.

"Another area where abortion proponents have attacked religious exercise is pharmacy regulations. In some states, government officials have sought to force pharmacists to dispense Plan B and Ella despite—or even because of—their religious objections. For example, Washington State, acting at the behest of abortion advocates, required religious objectors to dispense Plan B and Ella despite the fact that the State allowed pharmacies not to stock or dispense these drugs for “‘an almost unlimited variety of secular reasons[.]’”

After reviewing these conflicts, Becket said these conflicts would go away if SCOTUS would simply pull back its nose out of America's consciences: "But it does not have to be this way. It is possible to address abortion through ordinary politics, free from the systemic deformations and misincentives generated by the Roe/Casey regime. This is the American experience related to abortion before the Court departed from the Constitution’s text, structure, history and tradition in Roe/Casey. And it is the American experience with a variety of other contested issues related to human life and religious liberty, and the experience of many European countries today."

22. U.S. Conference of Catholic Bishops and Other Religious Organization

Filed July 27, 2021

Neither Constitutional Text Nor History Supports a Right to Take the Life of an Unborn Child at Any Stage of Pregnancy. Neither Constitutional Text Nor History Supports a Right to Take the Life of an Unborn Child at Any Stage of Pregnancy

Conclusion: Ultimately these cases, with all the problems they entail for lower courts, land on this Court’s doorstep. And under the current jurisprudence, it will never stop. This should not be. The way to prevent it is to return the issue to the states, where it properly belongs. (paragraph preceding “conclusion”)

Circuit judges have been skeptical that preenforcement challenges should be allowed at all in the abortion context because such challenges do not allow the plaintiff’s predictions about the challenged law’s effect to be tested. Some appellate courts have concluded outright that it is an abuse of discretion for a trial judge to issue a pre-enforcement injunction since the effect of such an abortion law is open to debate.27 This Court too has indicated that as-applied challenges are to be favored over facial challenges in abortion cases. Gonzales, 550 U.S. at 167 (stating that a facial challenge in that case “should not have been entertained in the first instance”). And yet, the practice of bringing pre-enforcement facial challenges to abortion legislation continues, leading inevitably to (a) judgments based on speculative evidence, (b) a blurring of the distinction between facial and as applied challenges, and (c) court decisions based often on factors for which the government itself is not even responsible (such as the number and location of abortion clinics in a given state). This impossible state of affairs would correct itself if the Court were to follow Justice Scalia’s suggestion to, in his words, “get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” Casey, 505 U.S. at 1002 (Scalia, J., concurring in the judgment in part, dissenting in part).

Roe also attempted, based on prior decisions of this Court that had declared protection under the Due Process Clause for rights deeply rooted in the Nation’s 6 history and tradition, to locate an abortion right in history. The attempt was seriously flawed. “[S]ubsequent scholarship has demonstrated conclusively that acceptance of abortion is not in any sense deeply rooted in the Nation’s history and traditions. The opposite is true: it is the prohibition of abortion that has deep roots in English and American history.” Institutional Integrity and Respect for Precedent, supra at 553-54. An exhaustive study of the issue concludes that “[t]he tradition of treating abortion as a crime was unbroken through nearly 800 years of English and American history until the ‘reform’ movement of the later twentieth century.” Joseph W. Dellapenna, DISPELLING THE MYTHS OF ABORTION HISTORY xii (2006).2

See Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1007 (2003) (“I know of no serious scholar, judge, or lawyer who attempts to defend Roe’s analysis on textual or historical grounds.”); Richard S. Myers, Lower Court “Dissent” from Roe and Casey, 18 AVE MARIA L. REV. 1, 6 (2020) (noting that “no one defends the Court’s opinion in Roe”). ...

D. Multiple State Interests Justify Prohibitions on Abortion Before Viability. There is an unfortunate tendency in abortion cases to become lost in minutiae. The factual record in individual cases can be lengthy and complex, the case law complicated and difficult to apply. But these case-specific features cannot disguise the tragedy that is the common denominator in these cases: the intentional destruction, on an unprecedented scale, of the most innocent and defenseless of the human family. In the truest sense, they are our family, our brothers and sisters. Like all members of the human family, they should be treasured and loved. Nothing in the Constitution requires states to stand idly by while their lives are deliberately taken.

21 The Declaration of Independence places the right to life first in the list of inalienable rights. The Fifth and Fourteenth Amendments list the right to life first among those rights of which the government cannot deprive a person without due process of law. Thomas Jefferson’s March 31, 1809 letter to the Republican Citizens of Washington County, Maryland, stated: “The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government.” 8 THE WRITINGS OF THOMAS JEFFERSON 165 (H.A. Washington, ed.) (1871).

...“The States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as a serious crime.” Id. The same can be said for state prohibitions on assisted suicide,

23. LONANG Institute

Filed July 27, 2021

74. American College of Pediatricians

(This entire excerpt is copied into Footnote #2 of Statement #4)

Filed in Dobbs

2. What we know today—as uncontroverted scientific fact—is that the child develops much more quickly than the Court in Roe presumed. The Court then was told that “in early pregnancy . . . embryonic development has scarcely begun.” Brief for Appellant at 20, Roe, 410 U.S. 113 (No. 70-18), 1971 WL 128054. But that is wrong. From conception, the unborn child is a unique human being who rapidly develops the functions and form of a child long before viability. (page 2-3)

At five weeks’ gestation (just three weeks after conception),1 the unborn child’s heart starts beating. By six weeks, brain waves are detectable, and the nervous system is steadily developing. By seven weeks, the child can move and starts to develop sensory receptors. By nine weeks, the child’s eyes, ears, and teeth are visible. By ten weeks, multiple organs begin to function, and the child has the neural circuitry for spinal reflex, an early response to pain. By twelve weeks, the child can open and close fingers and sense stimulation from the outside world. By fifteen weeks—when Mississippi’s law limits abortions—the child can smile and is likely sensitive to pain. Medical interventions after this stage (other than abortion) use analgesia to prevent suffering. And by eighteen weeks, pain induces hormonal responses in the child. All this happens long before viability. Reflecting these advances in medical knowledge, ultrasound imagery available at the time of Roe looks much different from the imagery available today: (Image not shown here)

Page 11-12: During the fifth week, “[t]he cardiovascular system is the first major system to function in the embryo,” with the heart and vascular system appearing in the middle of the week.33 By the end of the fifth week, “blood is circulating and the heart begins to beat on the 21st or 22nd day” after conception.34

By six weeks, “[t]he embryonic heartbeat can be detected.”35 Technological advances permit not only imaging detection at this early stage, but also videography of the unborn child, including footage of the child’s heartbeat.36

After detection of a fetal heartbeat—and absent an abortion—the overwhelming majority of unborn children will now survive to birth.37 “[O]nce a fetus possesses cardiac activity, its chances of surviving to full term are between 95%–98%.”38

Also during the sixth week, the child’s nervous system is developing, with the brain already “patterned” at this early stage.39 The earliest neurons are generated in the region of the brain responsible for thinking, memory, and other higher functions.40 And

     Footnotes for Page 12:
     34 Id. at 2662.
     35 Id. at 2755.
     36 See, e.g., Endowment for Hum. Dev., The Heart in Action: 4 Weeks, 4 Days, available athttps://www.ehd.org/movies/21/The#Heart-in-Action [2] (last visited July 28, 2021) (showing footage of a heartbeat at six weeks); see also, e.g., Endowment for Hum. Dev., Your Life Before Birth (Mar. 18, 2019), available at https://vimeo.com/325006095 [3] (last visited July 28, 2021) (displaying video footage of a child’s development).
     37 Joe Leigh Simpson, Low Fetal Loss Rates After Ultrasound Proved-Viability in First Trimester, 258 J. Am. Med. Ass’n 2555, 2555–57 (1987).
     38 Forte, supra note 11, at 140 & nn.121–22 (footnote omitted) (collecting post-Casey medical research).
     39 Thomas W. Sadler, Langman’s Medical Embryology 72 (14th ed. 2019); see generally id. at 59–95.
     40 See, e.g., Irina Bystron et al., Tangential Networks of Precocious Neurons and Early Axonal Outgrowth in the Embryonic Human Forebrain, 25 J. Neuroscience 2781, 2788 (2005).

(Page 13) the child’s face is developing, with cheeks, chin, and jaw starting to form.41 At seven weeks, cutaneous sensory receptors, which permit prenatal pain perception, begin to develop.42 The unborn child also starts to move.43 During the seventh week, “the growth of the head exceeds that of other regions” largely because of “the rapid development of the brain” and facial features.44 At eight weeks, essential organs and systems have started to form, including the child’s kidneys, liver, and lungs.45 The upper lip and nose can be seen.46 At nine weeks, the child’s ears, eyes, teeth, and external genitalia are forming.47

     Footnotes for page 13:
     41 See Sadler, supra note 39, at 72–95.
     42 Kanwaljeet S. Anand & Paul R. Hickey, Special Article, Pain and Its Effects in the Human Neonate and Fetus, 317 New Eng. J. Med. 1321, 1322 (1987).
     43 Alessandra Pionetelli, Development of Normal Fetal Movements: The First 25 Weeks of Gestation 98, 110 (2010).
     44 Keith L. Moore et al., The Developing Human: Clinically Oriented Embryology 65–84.e1 (11th ed. 2020).
     45 See Sadler, supra note 39, at 72–95.
     46 Moore et al., supra note 44, 1–9.e1.
     47 See Sadler, supra note 39, at 72–95; see also App. 66a.
     48 Pionetelli, supra note 43, at 65 (2010).

Page 14: At ten weeks, vital organs begin to function, and the child’s hair and nails begin to form.49 By this point, the neural circuitry has formed for spinal reflex, or “nociception,” which is the fetus’s early response to pain.50 Starting around ten weeks, the earliest connections between neurons constituting the subcortical-frontal pathways—the circuitry of the brain that is involved in a wide range of psychological and emotional experiences, including pain perception—are established.51 At the time of Roe, “the medical consensus was that babies do not feel pain.”52 Only during the late 1980s and early 1990s did any of the initial scientific evidence for prenatal pain begin to emerge.53 Today, the “evidence for the subconscious incorporation of pain into neurological development and plasticity is incontrovertible.”54 Every modern review of prenatal

     Footnotes for page 14:
     49 See Sadler, supra note 39, at 106–127; Moore et al., supra note 44, at 65–84.e1; Johns Hopkins Med., The First Trimester, available at https://www.hopkinsmedicine.org/health/wellness#and-prevention/the-first-trimester[4] (last visited July 28, 2021); see also App. 66a.
     50 See, e.g., Int’l Ass’n for the Study of Pain, IASP Terminology (last updated Dec. 14, 2017), available at https://www.iasp#pain.org/Education/Content.aspx?ItemNumber=1698#Nociception [5] (last visited July 28, 2021); see also App. 80a.
     51 Lana Vasung et al., Development of Axonal Pathways in the Human Fetal Fronto-Limbic Brain: Histochemical Characterization and Diffusion Tensor Imaging, 217 J. Anatomy 400, 400–03 (2010).
     52 Am. Coll. of Pediatricians, Fetal Pain: What is the Scientific Evidence? (Jan. 2021), available at https://acpeds.org/position#statements/fetal-pain [6] (last visited July 28, 2021).
     53 Ibid.
     54 Curtis L. Lowery et al., Neurodevelopmental Changes of Fetal Pain, 31 Seminars Perinatology 275, 275 (2007).

Page 15: pain consistently issues the same interpretation of the data: by ten to twelve weeks, a fetus develops neural circuitry capable of detecting and responding to pain.55 Even more sophisticated reactions occur as the unborn child develops further.56 And new developments have provided still more evidence strengthening the conclusion that fetuses are capable of experiencing pain in the womb.57

     Footnotes for page 15:
     55 See, e.g., Carlo V. Bellieni & Giuseppe Buonocore, Is Fetal Pain a Real Evidence?, 25 J. Maternal-Fetal & Neonatal Med. 1203, 1203–08 (2012); Richard Rokyta, Fetal Pain, 29 Neuroendocrinology Letters 807, 807–14 (2008).
     56 See Royal Coll. of Obstetricians & Gynaecologists, Fetal Awareness: Review of Research and Recommendations for Practice 5, 7 (Mar. 2010), available at https://www.rcog.org.uk/globalassets/documents/guidelines/rcogfetalawarenesswpr0610.pdf [7] (last visited July 28, 2021); Susan J. Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 J. Am. Med. Ass’n 947, 948–49 (2005); see also App. 76a, 84a–85a.
     57 See Lisandra Stein Bernardes et al., Acute Pain Facial Expressions in 23-Week Fetus, Ultrasound Obstetrics & Gynecology (June 2021), available at https://obgyn.onlinelibrary.wiley.com/doi/10.1002/uog.23709?af=R [8] (last visited July 28, 2021)

Page 17: Moreover, by twelve weeks, the parts of the central nervous system leading from peripheral nerves to the brain are sufficiently connected to permit the peripheral pain receptors to detect painful stimuli.68 Thus, the unborn “baby develops sensitivity to external stimuli and to pain much earlier than was believed” when Roe and Casey were decided. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774 (8th Cir. 2015) (cleaned up).

     Footnote for page 17:
     68 Sekulic et al., supra note 65, at 1034–35.

Page 21: By eighteen weeks, the child can hear his or her mother’s voice, and the child can yawn.87 The nervous system in the brain is also developing the circuitry for all the senses: taste, touch, smell, sight, and hearing.

     Footnote for page 21:
     87 Ibid.; see also Cleveland Clinic, Fetal Development: Stages of Growth (last updated Apr. 16, 2020), available at https://my.clevelandclinic.org/health/articles/7247-fetal#development-stages-of-growth [9] (last visited July 28, 2021).

Page 25: Around twenty-six weeks, the child’s eyes open, and he or she can fully see what is going on around him or her.106 Brain wave activity increases throughout this period.

     Footnote:
     106 Johns Hopkins All Children’s Hosp., A Week-by-Week Pregnancy Calendar: Week 26, available at https://www.hopkinsallchildrens.org/Patients-Families/Health-Library/HealthDocNew/Week-26?id=13484 [10] (last visited July 28, 2021).

79. World Faith Foundation and Institute for Faith and Family

(This entire excerpt is copied into Footnote #2 of Statement #4)

Filed in Dobbs

The viability line is arbitrary, lacks constitutional support, and conflicts with legal principles in other contexts. Developments in medical technology expose the reality of a child in the womb worthy of legal protection. “Emerging science never shows the unborn to be less than human; rather, each advancement further reveals the humanity of the developing child in all its wonder”—even at 15 weeks, the developing child has “fully formed eyebrows, noses, and lips,” and “the baby’s fully formed heart pumps about 26 quarts of blood per day.”3

Yet this Court has stubbornly maintained the viability line, reaffirming Roe’s “recognition of the right of the woman” to choose abortion “before viability . . . without undue interference from the State.” Casey, 505 U.S. at 846. Gonzales began by presuming the same principle and timeline (Gonzales, 550 U.S. at 146)—but on the next page described the unborn child as “a living organism within the womb, whether or not it is viable outside the womb” (id. at 147, emphasis added).

      Footnote:
      https://lozierinstitute.org/cli-experts-urge-scotus-to-catch-up-to#science-in-mississippi-abortion-case/; https://lozierinstitute.org/new-paper-coauthored-by-cli-scholars-examines-treating-the-patient#within-the-patient/. These articles described in further detail the baby’s fetal development at 15 weeks.

Page 13: Another critical development is the ability to detect a child’s heartbeat in the womb. Several years ago, the Eighth Circuit considered whether the state could prohibit abortions of “unborn children who possess detectable heartbeats.” MKB, 795 F.3d at 770. Experts testified that “fetal cardiac activity is detectable by about 6 weeks” although viability does not occur “until about 24 weeks.” Id. at 771. Sadly, the court concluded that Roe dictated the outcome but suggested that “good reasons exist for [this] Court to reevaluate its jurisprudence.” Id. at 774.

     Ironically, no discussion or evidence of infant heartbeats is given in the amicus by Heartbeat International. /DocketPDF/19/19-1392/185354/20210729164709878_Dobbs%20Amicus%20Brief%20-%20FINAL.pdf. The word “heart” comes up 39 times, but only to state the organization’s name.

conclusion doesn’t ask that acknowledgment that babies are people,