The 140 Amicus Briefs filed in Dobbs v. Jackson

“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

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

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

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

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

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

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

[Every word in this section is from Lonang's brief, except what is in these brackets, and colored blue. They are blue, because even though I have copied so much of their brief because I see in it potential for getting baby murder outlawed in every state, Lonang argues at one point that courts should NOT do that, but should remain "neutral" about whether states can support murder.]

The Declaration Of Independence Affirms That The States Enjoy Police Power Which Carries With It The Power To Prohibit Abortion ... The Fourteenth Amendment Requires Only Procedural Due Process, not Substantive Due Process ...Courts Are The Mere Instruments Of The Law, And Can Will Nothing ...... According to The Law Of Nature, Judicial Power Extends To Issuing Orders In Cases And Controversies, Not To Making Rules Of General Applicability..... Judicial Decisions Articulating Substantive Due Process Rights Are Without Constitutional Textual Support ..... ONLY THE STATES AND THE PEOPLE ENJOY THE LAWFUL AUTHORITY, TO CONSTITUTIONALIZE FUNDAMENTAL RIGHTS “IMPLICIT IN LIBERTY”, OR “DEEPLY ROOTED”, OR “INHERENT IN INDIVIDUAL AUTONOMY.” ..... [CONTINUED IN FIRST SECTION]

The Federal Courts Possess No Article III Power To Discover Or Constitutionalize Textually Unsupported Rights Or Impose A Duty To Enforce Those Rights On The States........ the law of nature provides that a government’s judicial branches are limited to declaring what is the law, not its codification. The concept of judicial review affirms that the province of a judge is to declare the law, not to make it

The Supreme Court is routinely presented with the legal arguments that certain statutory or constitutional words or phrases have no fixed meaning. The Court is then called upon to supply a new meaning other than the one stated in the text. This process adjusts the words or phrases chosen by the lawgiver, to establish as precedent the Court’s desired meaning.

Denying the textual meaning of legal words is not a novel invention of the Court. Instead, it has historical precedent going back to the first recorded case in human history. At issue in that case, In Re: Adam, Eve & the Devil, 3 Genesis 1 (0001), was the intent and meaning of a statute prohibiting consumption of fruit from a specific tree in a Garden in Eden. A statute prohibiting such consumption was at issue. Two of the parties violated the statute and entered a guilty plea. A second statute prohibited various forms of fraud and deception. A third party was charged under this statute alleging he used deception to induce co-defendants to consume the prohibited fruit.

At trial, he argued that he was not liable on the theory that the first statute did not actually prohibit consumption—that the words in the statute did not mean what the text declared. [Plausible but not recorded interaction between God and Satan.] As such he argued that he did not engage in deceit in his statements to the other parties. The Court was unpersuaded. It rejected the argument, finding that the prohibition was clear and unambiguous, reflected the drafter’s original intent and was, therefore, enforceable as written.3

This Court’s fourteenth amendment substantive due process jurisprudence is based on the same argument first made in Eden—the words of the law do not mean what they say. The Court has maintained the amendment itself contains a substantive due process clause into which the Court is empowered to pour un-enumerated fundamental rights of its own divination. The Court’s atextual adjustments, purportedly limited by the outcomeflexible concept of “judicial restraint,” have been internally justified by its moral appeals to novel high-sounding phrases such as “implicit in the concept of ordered liberty,”4 or the “concept of personal liberty,”5 or “deeply rooted in this nation’s history and tradition,”6 or “inherent in the concept of individual autonomy.”7 Alas, none of these phrases have textual support in the amendment itself. Nor has the Court been granted any state legislative power in Article III to define ordered or personal liberty, individual []) 4 Judicial decisions finding that a state statute violates fundamental values discovered as “implicit in the concept of ordered liberty” are without textual support. See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan. J., concurring) (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) (Cardozo, J.) overruled on other grounds, Benton v. Maryland, 395 U.S. 784 (1969)).

5 Judicial decisions finding that a state statute violates a woman’s right to abortion discovered in the “concept of personal liberty” are without textual support. See Roe v. Wade, 410 U.S. 113, 153 (1973).

6 Judicial decisions finding that a state statute violates rights discovered as “deeply rooted in this nation’s history and tradition” are without textual support. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) “The Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition.” Palko, 302 U.S. 325. The Court looks to principles of justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental’) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)).

7 Judicial decisions finding that a state statute violates a fundamental right which is “inherent in the concept of individual autonomy” without regard to history or tradition is without textual support. See Obergefell v. Hodges, 576 US 644; 135 S. Ct. at 2629 (2015)

autonomy, or traipse through history and tradition to discover and append any un-enumerated substantive individual rights into the amendment’s textually non-existent “substantive” due process clause. Nor does the law of nature of judicial review empower this Court to write new Constitutional text. The authority of a judge is to declare what written law already exists. The standard legal maxim is, Jus dicere, et non jus dare, also known as judicis est jus dicere non dare. The province of a judge is to declare the law, not to make it.8 At what point in time and on whose authority did that rule, binding on judges in England and America for centuries, become nonbinding? Even if fundamental rights are so demonstrably “implicit, inherent and rooted” as the Court maintains, the power of judicial review, nevertheless, does not carry with it the power to insert those rights into the fourteenth amendment. Amending the Constitution is governed by Article V in which the Court plays no part.

8 “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” United States v. Butler, 297 U.S. 1, 62-63 (1936).

Even assuming arguendo that the Court’s “implicit, inherent and rooted” approach to discovering un-enumerated fundamental rights is superior to legislative debate and enactment, or preferable to the Constitution’s chosen method of amendment, or that the Court’s wisdom and judgment in divining such rights is the manifestation of jurisprudential perfection, the fact remains that such an approach is without textual Constitutional support. Whether or not un-enumerated fundamental rights are or are not “implicit, inherent and rooted” in the Constitution’s fourteenth amendment, they are not found in the text itself. As such their discovery and incorporation into the law of the land is for the States and the People to decide.9

The case now before the Court provides an opportunity to restore judicial review to declaring what the text says. It provides an opportunity to resist anew the temptation first argued at Eden to opine to the contrary. The restoration will leave the State of Mississippi free to adopt laws protecting a pregnant woman by prohibiting conduct inducing a miscarriage or procuring an abortion. Such a determination would not merely return the law of abortion to its pre-1973 status. It would return judicial review itself to pre-substantive due process status

9 See U.S. Const. amend. IX, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” See also U.S. Const. amend. X, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

A. The Declaration Of Independence Affirms That The States Enjoy Police Power Which Carries With It The Power To Prohibit Abortion.

The question posed by the Court pertains to the power of a state, in this case Mississippi. The Declaration of Independence not only declared the States to be free and independent, but also declared the legal basis and extent of their power. No understanding of state power is complete without consideration of the Declaration. The Declaration grounded civil power itself on the “laws of nature and of nature’s God.”

That is what it says. It further declared this law of nature affirmed that every person may lawfully enjoy those rights which God has given. The laws of nature and its God pledges to guarantee to each person:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among 8 these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . .

Remember that under the Declaration, the “governments instituted among men,” whose job it is to secure the rights of the people, exclusively referred to the several state governments, as no federal or national government then existed. Accordingly, the duty to declare and secure the rights of the people belongs to the States themselves, not to any branch, department or agency of the federal government later created.

Even if this Court’s search for new fundamental un-enumerated substantive due process rights was constitutionally legitimate, it has neglected to look carefully at the “laws of nature and of nature’s God” as a source of those rights. Any legitimate search even for rights “deeply rooted” in American history and tradition would consider unalienable rights granted by the Creator as asserted in such a quintessential founding American document. In other words, the first place to look for any rights of the people would be to examine those rights granted by the Creator, not any purported rights invented by people. And if the Creator has not deemed it necessary or advisable to confer a particular right, then the logical conclusion would be that such a right does not exist.

Nevertheless the state governments’ purpose is to secure these natural and unalienable rights and 9 as we have seen, any un-enumerated rights are reserved to the People (not the judicial branch) to find, identify, and assert, and their States to enact. The People created their state governments for this purpose and their national government for a much more limited purpose. The People did not establish a national government with a judicial branch given any power to make law or discover un-enumerated rights.

As to the power of the States, the Declaration declared:

That these United Colonies are, and of Right ought to be, Free and Independent States; . . . and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. (emphasis added).

The States in the union have all power to do all “Acts and Things which Independent States may of right do.” The Constitution of a state may further limit this power. The United States Constitution including the fourteenth amendment also limits the power of States. But neither the framers nor text of that amendment contain any substantive due process limitation on a state’s police power.

...Mississippi is such a state. It stands on equal footing with the original States. It enjoys the police power to adopt laws prohibiting abortion because the Declaration of Independence recognizes it may do such acts according to the law of nature. Nothing in the text of the Fourteenth amendment legitimately articulates a substantive due process limitation on that power.

Even if a right to privacy implicit in the concept of ordered liberty translates into a right to abortion, nothing in the text of Article III, or the power of judicial review, extends to this Court a power to interlineate that right into the

B. The Fourteenth Amendment Requires Only Procedural Due Process, not Substantive Due Process. The fourteenth amendment states in part: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; . . . (emphasis added). U.S. Const., amend XIV. Due process pertains entirely to matters of procedure. “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976) (emphasis added). The core of these requirements is notice and an opportunity to be heard (often a hearing) before an impartial tribunal. Due process may also require 13 an opportunity for confrontation and crossexamination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

A review of the text of the fourteenth amendment reflects no textual support for any “substantive due process” clause. Even the term is an oxymoron. If we took the words in their ordinary meaning, “due process” merely signifies a proper procedure. The word “substantive,” on the other hand, means rights and duties as opposed to the procedural rules by which such things are established or enforced. Thus, the term “substantive due process,” in plain English, means non-procedural proper procedure. Logically, “substantive due process” is a type of “A = Not A” statement, where something is procedural and not procedural simultaneously. But unlike philosophy or mathematics, An “A = Not A” statement in a legal context is just plain illogical. Either the Court, when invoking substantive due process, is talking about procedure or it is not. If yes, then due process as a legal doctrine stands on its own and there is no need to resort to substantive due process. If no, then due process does not affect the matter, for it does not relate to procedure. This brings us back to Eden where the argument was first made that the words of the law do not mean what they say. While we acknowledge the argument has the weight of time behind it, originating in great antiquity, we respectfully urge the Court not to follow that ancient precedent.

C. Courts Are The Mere Instruments Of The Law, And Can Will Nothing. Applying a dialectical interpretation to words is not an element of judicial power. Nothing in the case or controversy jurisdiction of the Supreme Court in Article III, sec. 2, extends any power to the Court to identify un-enumerated fundamental rights “implicit in the concept of ordered liberty,” or in the “concept of personal liberty,” or “deeply rooted in this nation’s history and tradition,” or “inherent in the concept of individual autonomy.”13

Alexander Hamilton affirmed this view, writing in Federalist No. 78, that the judicial branch of government is the least dangerous because it has neither force nor will, only judgment. Chief Justice Marshall agreed, noting that: Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall).14 In other words, the Court

14 See also United States v. Butler, 297 U.S. 1, 78-79 (1936) (“The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts, but to the ballot and to the processes of democratic government.”) The instant case calls for self-restraint.

cannot will un-enumerated fundamental rights into Constitutional existence. It has no judicial power to will rights “implicit in the concept of ordered liberty,” or in the “concept of personal liberty,” or “deeply rooted in this nation’s history and tradition,” or “inherent in the concept of individual autonomy” into textual existence.

The high watermark of the Supreme Court misuse of judicial review came in Cooper v. Aaron, 358 U.S. 1 (1958). In its opinion, the court remarked that Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” So far, so good. In 1803, Chief Justice Marshall, speaking for a unanimous Court, calling the Constitution “the fundamental and paramount law of the nation,” declared in Marbury v. Madison, 1 Cranch 137 (1803) that “It is emphatically the province and duty of the judicial department to say what the law is.” This is a description of the legitimate power of judicial review found in Article III, Section 2.

From this legitimate recognition of the power of judicial review, the Cooper v. Aaron Court stepped back to Eden. The Court first expanded its own opinion in Marbury asserting that Marbury actually “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” 358 U.S. at 18 (emphasis added). Recall that Chief Justice Marshall said the judiciary has a duty to say what the law is. He said nothing, however, about the Court’s opinions as supreme. Cooper added the “supreme” element.

In its ruling, the Court in Cooper made the egregious error of misconstruing the Supremacy Clause of Art VI that “This constitution and the laws of the United States which shall be made in pursuance thereof” shall be “the supreme law of the land.” The Court, without either textual or historical support, construed “the laws of the United States” to include judicial opinions of the Court, when clearly, historically and textually, it only referred to acts of Congress which became law when made in pursuance of the Constitution.

Further, the Constitution grants no “supreme” expository power to the Court. It is not found in Articles III or VI. It is not there. What is found in Article VI is that the Constitution, laws and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law, let alone being law at all. The Constitution extends no power to the Court to claim that even its legitimate constitutionally based opinions, are the sole and exclusive meaning of the Constitution itself.

The judicial power to review cases arising under the constitution, laws and treaties is stated in Article III, section 2, but that power is not the power to rewrite the Constitution itself. It is not the power to authorize the court to sit as a perpetual constitutional convention. It is not the power for the court to write into the Constitution whatever it wants, or the power to strike from the Constitution has a duty to say what the law is. He said nothing, however, about the Court’s opinions as supreme. Cooper added the “supreme” element. In its ruling, the Court in Cooper made the egregious error of misconstruing the Supremacy Clause of Art VI that “This constitution and the laws of the United States which shall be made in pursuance thereof” shall be “the supreme law of the land.” The Court, without either textual or historical support, construed “the laws of the United States” to include judicial opinions of the Court, when clearly, historically and textually, it only referred to acts of Congress which became law when made in pursuance of the Constitution.

Further, the Constitution grants no “supreme” expository power to the Court. It is not found in Articles III or VI. It is not there. What is found in Article VI is that the Constitution, laws and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law, let alone being law at all. The Constitution extends no power to the Court to claim that even its legitimate constitutionally based opinions, are the sole and exclusive meaning of the Constitution itself.

The judicial power to review cases arising under the constitution, laws and treaties is stated in Article III, section 2, but that power is not the power to rewrite the Constitution itself. It is not the power to authorize the court to sit as a perpetual constitutional convention. It is not the power for the court to write into the Constitution whatever it wants, or the power to strike from the Constitution whatever it does not want. Constitutional insertions and deletions are a power retained by the People. This textual judicial power renders the Court’s opinion in Roe without support in the fourteenth amendment.

D. According to The Law Of Nature, Judicial Power Extends To Issuing Orders In Cases And Controversies, Not To Making Rules Of General Applicability. This exercise of judicial power is reflected in the difference between a “rule” and an “order.” A court cannot issue a rule under the law of nature, because the nature of any rule is that it is an action of general application. Rules apply not only to parties in a case, but to everyone. The court’s judgment on the other hand must be confined to an order for its contempt power to be exercised lawfully. Otherwise, a court could hold anyone in contempt for simply disagreeing with its opinion. This distinguishes judicial power from legislative power. Only the legislative power can make laws; the judiciary can merely apply pre-existing laws to the facts in a given case.

Not only is the law of nature of judicial power responsive rather than initiative, and limited to giving orders to parties rather than rules to all persons, the law of nature of judicial power is restricted to judgment, not will. All the judge has is judgment to make known the statute or Constitution’s text. This distinguishes judicial power from executive power.

It follows that if judges do not make law, which by definition is a “rule,” then judges cannot issue “rules,” and may only issue orders. A rule binds the people generally, and is by nature legislative, whereas an order binds only the person to whom it is directed. Thus, Article III extends the judicial power of the courts of the United States only to “cases” and “controversies.” If a judge could issue a rule which governed such disputes, the judicial power would not be limited to actual cases and controversies. [I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers....15 15 Abraham Lincoln, First Inaugural Address, March 4, 1861.

This Court’s substantive due process jurisprudence is an example of rulemaking simply because it purports to add new text to the Constitution itself. For this reason, it is contrary to the law of nature of judicial power. The opinion in Roe v. Wade can also be examined to determine whether it was in the nature of an order or a rule. Remarkably, the Court did not issue an instruction to Texas declaring its statute unconstitutional and unenforceable. Rather, it specified a trimester formula was essentially a legislative rule purporting to bind all future statute governing abortion in every state. Yet only Texas was a party to the case. Hence, the Court’s opinion again lacked an essential element of the exercise of judicial power, that is, the issuance of an order, not a rule.16 [16 For a more extensive review of the law of nature regarding judicial power and judicial review, see Herbert W. Titus & Gerald R. Thompson, America’s Heritage: Constitutional Liberty, Judicial Power And Judicial Review, The LONANG Institute (2006).]

Besides the lack of concrete, textual constitutional language, the limited nature of judicial power and its lack of authority to make rules, the Court has felt constrained to adjust rather than abandon its substantive due process practice of atextual fundamental rights rulemaking. These cases reflect its “go to” linguistic justifications, all of which neither have textual support nor are found enumerated among the judicial powers in Article III. Judicial decisions finding that a state statute violates fundamental values “implicit in the concept of ordered liberty” are without textual support. See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan. J., concurring) (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) (Cardozo, J.) overruled on other grounds, Benton v. Maryland, 395 U.S. 784 (1969)). A judicial decision finding that a state statute violates a woman’s right to abortion discovered in the “concept of personal liberty” is without textual support. See Roe v. Wade, 410 U.S. 113, 153 (1973).

Likewise, judicial decisions finding that a state statute violates rights “deeply rooted in this nation’s history and tradition” are without textual support. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997). “The Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition.” Palko, 302 U.S. at 325. The Court looks to principles of justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental”) (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)). So too, a judicial decision finding that a state statute violates a fundamental right which is “inherent in the concept of individual autonomy” without regard to history or tradition, is equally without textual support. See Obergefell v. Hodges, 576 U.S. 644; 135 S. Ct. at 2629 (2015).17

[17 Chief Justice Roberts, with whom Justice Scalia and Justice Thomas joined in dissent, further underscored the lack of any textual support for the court’s decision.

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking] that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

The same reasoning applies with equal force and effect to Griswold v. Connecticut, 381 U.S. 479, 500 (1965); Palko v. Connecticut, 302 U. S. 319, 325 (1937) (overruled on other grounds, Benton v. Maryland, 395 U.S. 784 (1969)); Roe v. Wade, 410 U.S. 113, 153 (1973), Washington v. Glucksberg, 521 U.S. 702, 721 (1997) and Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964))

Let us be clear here. What we mean when we say the Court is utilizing doctrines or rules of interpretation which have no textual support, is that the Court is just declaring its own majoritarian judicial will as the Supreme Law of the Land without regard to the Constitution’s text, form of government, separation of powers, or any known legal doctrine except the arbitrary will of a Despot. Rather than celebrating and continuing this “long train of abuses and usurpations pursuing invariably the same object, a design to reduce” the People “under absolute Despotism,” there is still a window of time in which to quash this judicial abuse and usurpation.

Finally, Amicus would be remiss in failing to address a future judicial decision which would discover a fundamental “right to life” “implicit in the Concept of ordered liberty”, or in the “concept of personal liberty,” or “deeply rooted in this nation’s history and tradition” or “inherent in the concept of individual autonomy,” or existing in any other linguistic contrivance yet to be animated from the spirit of the original argument in Eden (that the words do not mean what they say). Such a decision would also lack textual support in the non-existent substantive due process clause. Its advocates would perpetuate judicial Despotism and continue to wrongly nationalize, state jurisdiction.

[Wait a minute. I have copied so much of Lonang's brief because I perceive its usefulness towards the goal of outlawing abortion in EVERY state, as required by the Constitution, especially the 14th Amendment. Yet in this unfortunate paragraph, Lonang argues that courts should NOT outlaw genocide universally! It is this kind of argument that elevates the "scrupulous neutrality" about whether murder is good, of which Justice Kavanaugh brags!

[The error of Lonang and Kavanaugh, as I perceive it, is to miss the points raised by Justice Thomas about basing the definition of Constitutional Rights on what is specifically listed in the Constitution, which is the original meaning of "privileges and immunities" in the 14th Amendment. By that measure, "Life" is specifically protected by the Constitution, while "Murder" is not. This demands of courts that they outlaw baby murder in every state.]

A right to life needs no between-the-lines authorization. The Amendment plainly identifies what makes a state law unconstitutional.]

...Objecting to the Court’s holding in Obergefell v. Hodges, 576 U.S. 644; 135 S. Ct. at 2629 (2015) Justice Scalia, with whom Justice Thomas joined in dissenting observed: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” ....

...” The power and process of amending the national Constitution is well provided for in Article V. That Article assigns no place for the federal judiciary in its text.1

The powers reserved to the States and people include the power to decide if they shall constitutionalize or not, fundamental rights “implicit in the concept of ordered liberty,” or within the “concept of personal liberty,” or “deeply rooted in this nation’s history and tradition,” or “inherent in the concept of individual autonomy.”

[But not to the destruction of enumerated rights like Life.]

...., the Court trampled down the separation of powers. It also exceeded the law of nature of judicial power, because it does not declare the written law, but rather says what the law should be. That goes beyond judicial review. ....

Justice Curtis provided insight into the phenomenon when he observed: Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean.” [ Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (J. Curtis, dissenting).

He concluded that: “When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or, what in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.” Id]

24 Claremont Institute's Center for Constitutional Jurisprudence

The Due Process Clause of the Fourteenth Amendment protects against deprivation “life, liberty, or property.” In the abortion rights cases, this Court has focused on “liberty.” [of moms.] The real issue, however, is life. [of babes.] Life is a natural right endowed by our Creator and is the first unalienable right recognized in the Declaration of Independence. ...The duty of government to protect life is at the center of the nation’s first legal document.

25 22 State Policy Organizations

22 State Policy Organizations

The positivistic [materialistic – only physical things are real] reduction of persons represented by the Court’s abortion decisions has leavened the law in a way that curtails historic State policies grounded in deference to a given human nature and the common law rights that correspond to that nature.

By purporting to leave the question of the meaning of persons in the Fourteenth Amendment unanswered, this Court’s holdings requiring States to abandon common and natural law commitments have effectively ratified a diminished view of the human person in law. These holdings have foisted upon the States a denatured anthropological model that prohibits them from ascribing objective meaning, dignity, and value to vulnerable persons.

The severe distortion of the human person in constitutional caselaw invites systemic effects well beyond the troubled context of abortion. If constitutional precept commands States to treat nascent human life as vacant of meaning and value apart from subjective individual determination or Court authorization, concurrently placed in doubt is the historic understanding of law as constrained by a reality prior to and beyond its coercive impositions.

A national abortion-enablement policy is mournful in itself, but does not keep to itself. It corrodes the law altogether. Amici brief_FPC_ 7.23.21.pdf

26 Connie Weiskopf and Kristine L. Brown

The sophistry at the heart of Roe is that the beginning of human life was ever a subject for speculation ...There was no doubt at the time of the Fourteenth Amendment as to whether the common definition of “person” included preborn persons. One-hundred and fifty years since, medical science has overwhelmingly confirmed this commonly understood inclusion of preborn persons in legal personhood. ...no other so-called constitutional right involves the “the purposeful termination of a potential life.” Yet even in Harris, we see the poison of Roe in the qualifier “potential.” ...By choosing Levy v. Louisiana, 391 U.S. 68 (1968) as the test for legal personhood, this Court can reach a new milestone in the advancement of human rights. ...The Court started from the premise that “illegitimate children are not ‘nonpersons,’” insofar as they are “humans, live, and have their being.” Levy 391 U.S. at 70 (emphasis added). Thus all children who 1)are human, 2) are living, and 3) are in being, are “clearly” persons under the Equal Protection Clause.

As Justice Gorsuch wrote in his Ramos concurrence, “stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.” Ramos v. Louisiana, 590 U.S. __, __ (2020) (slip op. at 23). [2]

27 Professor Kurt T. Lash

Filed July 27, 2021 ZZZZZZZZZZZZZ

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court ruled that...“We feel...This right of privacy...[is] founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action [while] the District Court determined [it is founded] in the Ninth Amendment’s reservation of rights to the people....” . In Planned Parenthood v. Casey, 505 U.S. 883 (1992), a plurality...once again cit[ed] the Fourteenth Amendment and the Ninth Amendment...s. The Ninth Amendment, both at the time of its adoption and now, preserves the people’s retained right to local self-government. It cannot properly be read as a source of authority to deny the rights of local self-government. The Fourteenth Amendment protects substantive rights against the states, but only those previously enumerated, thus leaving all unenumerated rights under the authority of the people of the several states as a matter of constitutional right. This includes the non-enumerated subject of abortion.

[Substantive definition: it exists independently, not subordinate to anything; for example not owing its existence to any law or constitution. Enumerated definition: rights named in the Constitution, like freedom of speech and religion.]

....In sum, at the threshold of the Civil War, moderate Republicans (who, according to Foner, “held the balance of power within the Republican Party,” Foner, FREE SOIL, at 205) had no intention of abandoning constitutional federalism or reinterpreting the Ninth and Tenth Amendments. These Republicans believed that the slave holding southern states had fallen away from the original federalist principles of the Constitution and had continuously violated the personal rights enumerated in the Bill of Rights. See Michael Kent Curtis, FREE SPEECH, “THE PEOPLE’S DARLING PRIVILEGE”: STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 266-70 (2000). The Republicans who framed and advanced the Fourteenth Amendment sought only to enforce those original rights while maintaining the basic principles of constitutional federalism announced in provisions like the Ninth and Tenth Amendments.

...II. The Fourteenth Amendment neither enforces unenumerated substantive rights against the states nor alters the federalist meaning of the Ninth Amendment. A. John Bingham, primary draftsman of Section One of the Fourteenth Amendment, sought to apply enumerated constitutional rights against the states while preserving the structural principles of constitutional federalism declared in the Ninth and Tenth Amendments.

...Consistent with his continued belief in the reserved rights of the states over all unenumerated subjects, Bingham proposed a constitutional amendment that would enforce the first eight amendments in the Bill of Rights against the states but leave the substance of all unenumerated rights under the control of the people in the States.

....None of Bingham’s Republican colleagues in the Thirty-Ninth Congress objected to the idea of enforcing the Bill of Rights against the states. Some members, however, worried that the wording in Bingham’s initial draft might empower Congress to define what counted as federally enforceable “privileges and immunities.”

Republican Giles Hotchkiss suggested he would support an amendment that clearly announced “a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation. But this amendment proposes to leave it to the caprice of Congress.”

....As Bingham explained three years after the ratification of the Fourteenth Amendment: Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

...John Bingham’s fellow member on Joint Committee on Reconstruction, Michigan Senator Jacob Howard, also described Bingham’s Privileges or Immunities Clause in terms that involve only constitutionally enumerated rights. See Speech of Jacob Howard, May 23, 1866, in 2 Reconstruction Amendments, at 187-88.

In his speech introducing the Fourteenth Amendment to the Senate, Howard explained that the privileges or immunities of citizens of the United States included the right of traveling citizens to receive equal treatment enumerated in Article IV’s Comity Clause (and described in antebellum cases like Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823)) as well as those rights “secured by the first eight amendments of the Constitution.” Id. at 188. Every single privilege or immunity listed by Howard in his extended speech involved a guarantee enumerated in the original Constitution. Howard’s speech is important: It was so widely read and republished that during the ratification debates speakers often referred to the proposed Fourteenth Amendment as “the Howard Amendment.” See, e.g., North Carolina House of Representatives, July 2, 1868 (“Mr. Seymour introduced the following resolution, ratifying the fourteenth article of the Constitution of the United States, the article known as the Howard Amendment.”),

....C. The ratifying public was well informed of the speeches of John Bingham and Jacob Howard.

Unlike the secret proceedings of Philadelphia Constitutional Convention, the proceedings of the Thirty-Ninth Congress were public. Newspapers reported on the speeches and debates, often with verbatim transcripts, on a daily basis. See Introduction to the Collection, 1 Reconstruction Amendments, at ix. Bingham’s speeches of February 1866 were published in the New York Times,11 The New York Herald,12 The Vermont Watchman and State Journal,13 The Philadelphia Inquirer,14 and Philadelphia’s Illustrated New Age.15 Bingham himself published his February 28, 1866 speech separately and distributed it as a campaign document.

....In the Thirty-Ninth Congress, Pennsylvania Democrat Benjamin M. Boyer quoted the Ninth and Tenth Amendments as evidence that Congress had no right to “disfranchise the majority of the citizens of any State on account of their past participation in the rebellion.”17 One finds similar Democrat references to the Ninth and Tenth Amendments throughout the Reconstruction debates. See, e.g., CONG. GLOBE, 41st Cong., 2d Sess. app. at 354 (1870) (remarks of Sen. William T. Hamilton) (quoting the Ninth and Tenth Amendments in support of a narrow reading of federal power).

....As noted above, both John Bingham and Jacob Howard omitted the Ninth and Tenth Amendments from their list of constitutional rights protected by the Privileges or Immunities Clause, and instead expressly named the rights enumerated in the first eight amendments. As Bingham explained, “these eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.”

....in the common Reconstruction-era understanding that the last two amendments in the Bill of Rights were distinguishable from the personal rights protected in the first eight. ....y, there is no historical evidence that between the time of the

18 Nor does it mean that states are not bound to respect the federalism principles of the Ninth and Tenth Amendments. See, e.g., New York v. United States, 488 U.S. 1041 (1992) (rejecting the idea that states can waive the Constitution’s federalist separation of powers represented by the Tenth Amendment). 24 Founding and Reconstruction a new consensus understanding of the Ninth Amendment had emerged which viewed the provision as a font of unenumerated personal rights that could be applied against the states.

....McDonald v. Chicago, 561 U.S. 742, 811, (2010) (Thomas, J., concurring in part and concurring in judgment) (“the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g., Lochner v. New York; Roe v. Wade.”) (cleaned up).

Nor could it. At the time of the Fourteenth Amendment, the term “due process of law” was “universally understood to guarantee individual rights of legal process that only courts could provide.”

....In 1859, for example, John Bingham “invit[ed] attention to the significant fact that natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guaranteed by the broad and comprehensive word ‘person,’ as contradistinguished from the limited term citizen— as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that ‘no person shall be deprived of life, liberty, or property but by due process of law.’” Bingham, 1 Reconstruction Amendments, at 153-54.

This made slavery the ultimate denial of Due Process as it deprived persons of life, liberty and property without any procedural protections whatsoever. .... McDonald v. Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in judgment) (This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process.”). The Due Process Clause requires states to provide all persons critically important procedural rights [equal rights in court], but nothing more. ....In The Slaughterhouse Cases, 83 U.S. 36 (1873), the Supreme Court rejected a claim by Louisiana butchers that a state-enacted monopoly violated, among other things, the Privileges or Immunities Clause of the Fourteenth Amendment....Since the right to pursue a local trade was neither an enumerated federal responsibility or enumerated federal right, the subject remained under the regulatory control of the people in the several states.

In support of his reading of the Fourteenth Amendment, Justice Miller relied on the basic principles of constitutional federalism. According to Miller, interpreting the Privileges or Immunities Clause as somehow nationalizing the unenumerated subjects of municipal regulation, especially when combined with the congressional enforcement powers granted by Section Five of the Fourteenth Amendment, would obliterate the federalist structure of the Constitution. Miller was unwilling to accept an interpretation that “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people . . . in the absence of language which expresses such a purpose too clearly to admit of doubt.” Slaughterhouse, 83 U.S. at 78.

In his 1871 Speech on the Enforcement Act, in words that anticipate Miller’s later opinion in Slaughterhouse, Bingham explained: Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision 30 of the fourteenth article, that no state shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations? Bingham, March 31, 1871, in 2 Reconstruction Amendments at 626.

Justice Miller also was correct to insist that the Fourteenth Amendment be interpreted in a manner consistent with the traditional understanding of constitutional federalism. Bingham himself had no intention to obliterate constitutional federalism and he insisted that his proposal imposed no rights upon states which they were not already constitutionally oath-bound to protect. Like other moderate Republicans in the Reconstruction Congress, Bingham valued constitutional federalism, describing it as “our dual system of Government by which our own American nationality and liberty have been established and maintained. I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe.” Bingham, March 9, 1866, in 2 Reconstruction Amendments at 140.

Finally, Miller was right to limit the privileges or immunities of citizens of the United States to those rights actually enumerated in one form or another in the federal Constitution. It had long been settled law that no state was permitted to make or enforce any law that conflicted or interfered with a proper exercise of enumerated federal power. See McCulloch v. Maryland, 31

17 U.S. 316 (1819). The problem in the 1860s was the lack of federal power to enforce enumerated federal rights. As Bingham explained early in the debates of the Thirty-Ninth Congress, “it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution.” Bingham, February 26, 1866, in 2 Reconstruction Amendments at 100. Although Miller does not expressly declare that the Privileges or Immunities Clause applied the first eight amendments against the states, Miller does name enumerated First Amendment rights as protected “privileges or immunities.” Nothing in his opinion closes the door on incorporation of the Bill of Rights. See, Lash, THE FOURTEENTH AMENDMENT, at 252-65.

That door was erroneously closed in a later case, Cruikshank v. United States, 92 U.S. 542 (1876). Id. at 265; see also McDonald v. Chicago, 561 U.S. 742, 808 (2010) (Thomas, J. concurring).

United States, by the consent of the people of the United States, with the power to enforce the bill of 32 rights as it stands in the Constitution today.” Bingham, in 2 Reconstruction Amendments at 109. No moderate Republican in or out of Congress in the 1860s would have approved of a constitutional amendment that bound the states to enforce an undefined set of substantive rights and gave Congress the power the nationalize the same. This includes the otherwise unenumerated “right to abortion.”

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

A very different “logical and biological” conclusion about constitutional rights could be drawn from the definition of viability: After viability, when a human being is capable of meaningful life outside the mother’s womb, the State must, consistent with its obligations under the Fourteenth Amendment, protect this human from being deliberately killed to the same extent it protects older human beings.

Such a conclusion is at least as, and likely more, plausible than Roe’s declaration that only after the unborn child could survive outside the womb, a state may, or may not, prohibit his or her deliberate destruction, subject to broad exceptions effectively gutting even this limited permission.

....These scholars recognize that establishing the principle of Fourteenth Amendment personhood for the unborn does not dictate a single, judicially#imposed result for all states, all statutes, or all pregnancies. Paulsen, at 70 (“That the word ‘person,’ as used in the Constitution in the Fifth and Fourteenth Amendments, is broad enough to embrace living but unborn humans does not itself say anything specific about what the precise legal regime must be with respect to abortion”); Finnis, Born and Unborn: Answering Objections to Constitutional Personhood, First Things, April 9,

....Whatever abortion restrictions may (or may not) exist on paper, because of the flexibility of this Court’s jurisprudence, abortion providers across the country advertise their services for later abortions: beyond 20 weeks, beyond 24 weeks, beyond 28 weeks, beyond 32 weeks. See Appendix. The audience for these advertisements and websites is not doctors who have unexpectedly diagnosed a dangerous condition in a pregnant woman. These advertisements are direct-to-consumer marketing of Roe- and Casey-sanctioned abortions indistinguishable from infanticide.

e. Additionally, the 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 that this Court upheld in the 1990 case of Cruzan

29 Priests for Life

Indeed, Priests for Life urges the Court to use this opportunity to end the charade that Roe v. Wade was correctly decided. This fateful decision has no legitimate foundation in law, it continues to tear at the fabric of our nation, and it has corrupted our judicial system. It is time for it to go ....

In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. See id., at 175, n.1.

It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2142, 2151 (2020) (Thomas, J., dissenting).

When deciding Roe v. Wade, this Court infamously stated:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. 5

Roe v. Wade, 410 U.S. 113, 159 (1973). Consistent with this veiled philosophical pronouncement—a pronouncement grounded in secular positivism—a majority of the justices concluded that the U.S. Constitution “does not define ‘person,’” leading the Court to ultimately conclude that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Id. at 158.

Remarkably, the Court dismissed the life of the unborn based on its conclusion that there is no direct textual support to conclude that this “person” is protected by the Fourteenth Amendment. Yet, this same Court created a right to abortion “out of whole cloth, without a shred of support from the Constitution’s text.”

The Court’s ruling in Roe v. Wade is similar to how the Court had previously concluded in the infamous Dred Scott decision (Dred Scott v. Sandford, 60 US 393 (1857)) that people of color were not legal “persons” as a matter of federal constitutional law. Unfortunately, it took a civil war to correct this injustice.

[Actually Dred Scott called slaves a “class of persons”, but persons without rights. And although they are persons, they are not “people of the United States”: “The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not,”

...6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.

...8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

...It is very true that, in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence, and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race, but because it was discovered from experience that slave labor was unsuited to the climate and productions of these States, for some of the States where it had ceased or nearly ceased to exist were actively engaged in the slave trade, procuring cargoes on the coast of Africa and transporting them for sale to those parts of the Union where their labor was found to be profitable and suited to the climate and productions.]

30 Hannah S., John S. and Marlene S

The story of this “adoption” and this Amici Curiae Brief will reveal that Roe’s measuring line for viability has now been moved all the way back to fertilization by the modern scientific advancement called in vitro fertilization. Roe, at 160, has this viability definition: “ ‘viable,’ . . . potentially able to live outside the mother’s womb, albeit with artificial aid.”

Advances in science have eliminated the distinction between previability and viability. Previability prohibitions on elective abortions should be constitutional because viability occurs at fertilization, as proven through in vitro fertilization techniques.

31 Center for Medical Progress and David Daleide

8162714090_European%20Legal%20Scholars%20Amici%20Brief.pdf Filed July 28, 2021

Federal law recognizes human infants in utero, and premature infants born alive, as persons under the law at any gestational age. The federal Unborn Victims of Violence Act recognizes the “child in utero” as “a member of the species homo sapiens, at any stage of development, who is carried in the womb” whose death or injury in the course of a federal crime is subject to prosecution the same as that of any born child or adult individual. 18 U.S.C. § 1841(d), (a)(1).

The federal Born Alive Infants Protection Act establishes even more broadly that, for purposes of “any Act of Congress” and “any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States,” “the words ‘person’, ‘human being’, ‘child’, and ‘individual’, shall include every infant member of the species homo sapiens who is born alive at any stage of development.” 1 U.S.C. § 8 (a).

Even prior to the ratification of the Fourteenth Amendment, this Court acknowledged that the word “person” in law was a term designed to include all of humanity. In United States v. Palmer, 16 U.S. 610 (1818), Chief Justice Marshall explained that “every human being” and “the whole human race” was included in the words “person or persons” in federal law. Id. at 631–32. And in Levy v. Louisiana, 391 U.S. 68 (1968), this Court articulated a simple test for ensuring equal protection for marginalized persons, reasoning that so-called “illegitimate” children were not “non-persons” as they were “humans, live, and have their being,” and therefore, “clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Id. at 70.

32 European Legal Scholars in support of neither party

The European Court allows States a wide margin of appreciation to determine the starting point of the right to life in their domestic law and to formulate their laws on abortion. Consistent with this, the European Court has held that the Convention does not confer a right to abortion and has recognized as compatible with a Member State’s obligations under the Convention even very restrictive abortion laws. However, in several cases the European Court has found violations of the Convention in respect of individual applicants as a result of procedural deficiencies in the way national abortion laws have been given effect.

.....The Court previously has considered European law when interpreting the Constitution. See, e.g., Roper v. Simmons, 543 U.S. 551, 575 (2005) (considering certain foreign law “instructive” when interpreting the Eighth Amendment); Lawrence v. Texas, 539 U.S. 558, 560 (2003) (discussing the European Court’s reasoning when interpreting the Due Process Clause of the Fourteenth Amendment); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (resorting to other countries’ views on capital punishment for the mentally ill). To be sure, the propriety of doing so is disputed. See, e.g., Roper, 543 U.S. at 627–28 (Scalia, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting); Atkins, 536 U.S. at 322–28 (Rehnquist, C.J., dissenting). But the fact that the very same source of European law this Court previously invoked also allows prohibitions on abortion admits of no serious dispute. Roper, 543 U.S. at 563; Atkins, 536 U.S. at 313–14.

....Amici, accordingly, wish to highlight relevant abortion jurisprudence from the European Court that may prove helpful to this Court. Specifically, the European Court has a body of case law weighing abortion laws against human rights standards. This case law addresses issues comparable to those faced by the Court, including the scope of the right to privacy and the interests and rights that may legitimately be balanced against such a right by the state when regulating or restricting abortion.

1.Member States may protect human life before birth through national law. The European Court has identified several rights and interests justifying such laws. These include protecting the right to life of the unborn, the legitimate interest of society in limiting the number of abortions, and the interests of society to protect morals. 2.The European Court has held that the Convention does not confer a right to abortion. 3.The compatibility with the Convention of Member States’ laws on abortion is primarily assessed by reference to Article 2 (“Right to life”) and Article 8 (“Right to respect for private and family life”) of the Convention. 4.The European Court has not determined whether the unborn child is a person for the purposes of Article 2 of the Convention. The European Court has not interpreted Article 2 as prohibiting States from making abortion legal; it instead interprets Article 2 as allowing States a margin of appreciation to determine the starting point of the right to life in their domestic law. 5.Legislation regulating the termination of pregnancy touches upon the sphere of a woman’s private life and thus may come within the scope of Article 8. But the European Court has also consistently recognized that Member States have a wide margin of appreciation under the Convention with respect to the regulation of abortion.

6.Consistent with the foregoing, the European Court has recognized as compatible with a Member State’s obligations under the Convention even very restrictive abortion laws, including a national law prohibiting abortion at all stages of pregnancy and for any reason other than where there was a risk to the life (including by way of suicide) of the expectant mother.

7.While acknowledging that it is the task of an individual Member State to frame its own abortion law, the European Court has found that it follows from its responsibility under Article 19 of the Convention to supervise whether any such law constitutes a proportionate balancing of the competing interests involved.

8.The European Court has not relied upon any concept of the viability of the “foetus”3 as a basis for assessing the compatibility of Member States’ abortion laws with the Convention. 9.In several cases, the European Court has found that Member States have violated the Article 8 rights of claimants seeking to access abortion services permitted under national law as a result of deficiencies in the way the national law has been given effect. These have included deficiencies in the arrangements for conscientious objection by healthcare providers or deficiencies in the processes for establishing whether the conditions under national 3 The European Court uses the terms “foetus” and “unborn child” interchangeably. See Vo v. France, 2004-VIII Eur. Ct. H.R. 67, 109; A, B & C v. Ireland, 2010-VI Eur. Ct. H.R. 185, 261. (“ABC”). 6 law for a lawful abortion have been satisfied by a claimant in a particular case.

33 396 State Legislators from 41 States

[This brief tackles 2 issues: power of Congress to correct state slights to the people’s rights. Second, the power of states to protect rights. It addresses a Problem, when an unenumerated [not specified in the Constitution] right, abortion, is at the expense of an enumerated right, Life.

[This brief shows Section 5 authority embedded in natural law way before 1868. Not just Congress but states. Courts have zero jurisdiction to enforce unenumerated rights like abortion, but full authority and inescapable responsibility to enforce enumerated rights like Life. Couldn’t a red state sue a blue state for slaughtering its people?]

9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[7] Wikipedia: addresses rights, retained by the people, that are not specifically enumerated in the Constitution.

10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[6]

[Even if Section 5 of the 14th Amendment DIDN'T give Congress authority to define and enforce rights:]

State legislators have the constitutional duty, and therefore the power, to protect the fundamental, civil rights of persons. The fundamental law in which those fundamental rights are found is the common law, which consists of both natural duties and those ancient, customary rights and immunities that are foundational to ordered liberty. Thus, a state legislature must declare and secure to all persons within the protection of its laws the rights that those persons have by natural and customary law. Cf. Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997) (upholding state legislation that prohibited assisted suicide and reasoning that the Fourteenth Amendment’s “Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition’.” (quoting Moore v. E. Cleveland, 431 U. S. 494, 503 (1977)).

William Blackstone, Commentaries on the Laws of England (1765): “Hence,” he said, “it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.” Id. Blackstone taught that the legislative power is to declare existing common-law rights and duties and to remedy any defects in the legal security for those rights. Id. at *42-43, 52-58, 86-87

The Founders echoed this view in the Declaration of Independence, declaring that governments are instituted among men in order to secure the inalienable rights with which human beings are endowed by nature and nature’s God. They also accused the crown and Parliament of infringing the rights of “our constitution,” which in 1776 could only have been a reference to the common-law constitution of British North America. This view predicated the Constitution of the United States, which expressly secures natural rights, such as life and religious liberty, and common-law rights, such as jury trials and freedom from the quartering of soldiers in one’s home, and expressly disclaims any intent to disparage the other rights of the fundamental law.

Indeed, the point of having legislatures, executives, and courts is to secure the rights that Americans already have. Neither state legislatures nor the Constitution of the United States create those rights. See District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (stating that “it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a preexisting right,” that it “is not a right granted by the Constitution,” and is not “in any manner dependent upon that instrument for its existence.”).

Some, but not all, of the rights of natural persons are enumerated [listed] in the Constitution of the United States and its amendments. U.S. Const. art. I, § 8, cl. 8.; art. IV, §2; amends. I-VIII. Others are enumerated in state constitutions. See e.g., Soc’y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 766 (No. 13,156) (C.C.D.N.H. 1814). Still others are declared in American constitutions but not enumerated. U.S. Const. amend. IX (“The enumeration of certain rights herein shall not be construed to deny or disparage other rights retained by the people.”) (emphasis added). State legislatures have a duty to declare and secure all fundamental rights, both enumerated and unenumerated.

Fundamental rights are those that persons enjoy by fundamental law—natural law and common law— with or without any written constitution. Because the common law includes natural rights, to understand the fundamental rights declared and secured by the Constitution, it is sufficient to look to the common law, especially as explained by William Blackstone. Established common-law doctrines constitute the best evidence of the existence and meaning of both enumerated and unenumerated, fundamental rights. Jeffrey D. Jackson, Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 Okla. L. Rev. 167 (2010) (explaining why the unenumerated rights referred to in the Ninth Amendment should be understood with reference to a common law baseline, especially as specified in Blackstone’s Commentaries); Adam J. MacLeod, Our Universal and Particular Constitution, Public Discourse, https://www.thepublicdiscourse.com/2018/10/43788/ (October 4, 2018). “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama, 124 U.S. 465, 478 (1888). The terms and concepts of the common law provided the “the nomenclature of which the framers of the Constitution were familiar.” Minor v. Happersett, 88 U.S. (21 Wall) 162, 167 (1875). Accord James R. Stoner, Jr., Common-Law Liberty: Rethinking American Constitutionalism 9-29 (2003).

American constitutional rights are not philosophical abstractions. They are described in detail in common law treatises, such as those by Coke and Hale, and especially Blackstone’s Commentaries. The framers crafted American constitutions—state and federal—in common law terms. And Blackstone was their teacher and lexicographer.

Morris L. Cohen, Thomas Jefferson Recommends a Course of Law Study, 1119 U. Pa. L. Rev. 823 (1971); Robert A. Ferguson, Law and Letters in American Culture 11 (1984); Albert W. Alschuler, Rediscovering Blackstone, 145 U. Pa. L. Rev. 1 (1996); R.H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 131–41 (2015).

As this Court has rightly acknowledged, Blackstone’s “works constituted the preeminent authority on English law for the founding generation.” Alden v. Maine, 527 U.S. 706, 715 (1999). Blackstone retained his influence through the adoption of the Civil War Amendments. James M. Ogden, Lincoln’s Early Impressions of the Law in Indiana, 7 Notre Dame L. Rev. 325, 328 (1932). And this Court continues to turn to Blackstone today.

[2 A few examples from recent years include Gamble v. United States, __ U.S. __, 139 S. Ct. 1960 (2019) (the Court’s opinion, the concurrence, and one dissent citing Blackstone multiple times to determine the meaning of the phrase “the same offense” in the Fifth Amendment’s double jeopardy clause); Department of Homeland Security v. Thuraissigiam, __ U.S. __, 140 S. Ct. 1959, 1969 (2020) (calling Blackstone’s Commentaries a “satisfactory exposition of the common law of England”); Ramos v. Louisiana, __ U.S. __, 140 S. Ct. 1390, 1395 (2020) (citing Blackstone in explanation of the holding that the requirement of juror unanimity is “a vital right protected by the common law” and therefore the Constitution’s jury trial guarantee); Torres v. Madrid, __ U.S. __, 141 S. Ct. 989, 996, 997, 998, 1000 (2021) (citing Blackstone multiple times to determine meaning of Fourth Amendment “seizure”). ]

...emphasis added). The legislature’s particular duty to declare and secure the natural and customary rights of America’s fundamental common law can be seen clearly by reading together the Ninth, Tenth, and Fourteenth Amendments to the Constitution of the United States. The Bill of Rights marks off certain rights as beyond the competence of Congress (and now, by incorporation, the states) to alter or abolish. It immunizes those rights by enumerating them and by stating in particular terms the official duties with which they correlate.

But as the Ninth Amendment makes clear, the enumeration of certain common-law rights does not deny or disparage all the other rights that the American people enjoy by virtue of natural law and their ancient customs. The Ninth Amendment expressly reserves to the people those civil and fundamental rights that they enjoyed prior to ratification, which are their natural rights, other common-law rights and liberties, and some privileges enumerated in state constitutions.

Because many states refused to remedy infringements of fundamental rights [for blacks] prior to the Civil War, the Fourteenth Amendment was necessary to ensure to all persons due process of law and the equal protection of the laws, and to empower Congress to remedy infringements of those rights. It bears emphasis that the Fourteenth Amendment was necessary to recall state legislatures to their original task. Far from repealing the people’s retention of fundamental rights declared by the Ninth Amendment, the Fourteenth Amendment strengthened it. And far from abrogating the duty of state legislatures to declare and secure unenumerated rights, the Fourteenth Amendment reinforced that duty.

[That is, the rights retained by the people but not protected by their state, such as the right of Blacks to liberty, was strengthened – at the expense of the freedom of the legislature to torpedo those rights. And the 14th Amendment did not supplant the duty of legislatures to protect rights, by courts, but rather that duty became enforceable by Congress.]

Legislatures are equipped to deliberate about and secure the rights of all persons as they identify and specify the boundaries between rights.

See Grégoire Webber et al, Legislated Rights: Securing Human Rights through Legislation (2018). Many of the great civil rights achievements in American history have been legislative achievements. See, e.g., the Civil Rights Act of 1866, Civil Rights Act of 1875, and the Civil Rights Act of 1964. And these include state statutes that declare and secure common law rights against unreasonable discrimination. ....

This Court has never denied that state legislatures have the power and duty to declare and specify the boundaries of fundamental rights in the abortion context. To the contrary, this Court has ratified the legislative province to identify, specify, and secure the rights of our fundamental law. Often using the term “interests” or “state interests,” ....

In many respects, legislatures are better equipped for this task than courts, whose job is to secure the rights of the litigants who happen to appear in any case or controversy. The job of a court is to specify a right in a legal judgment resolving a dispute between two parties. To generalize that particular judgment, to make that right universal and absolute for all persons, carries the risk that the tribunal will unintentionally invite infringement of the rights of persons who are not parties to the litigation. Significantly, most constitutional abortion cases proceed without any involvement of the persons who are most interested in, and affected by, the outcome: expectant mothers, fathers, grandparents, physicians and other health care professionals who are called to deal with the fallout of abortions, and, critically, unborn human beings. By contrast, legislatures hear evidence and find facts about the rights of all interested persons

Furthermore, a lawmaker must fashion remedies and sanctions for rights infringements that are commensurate and responsive to the particular wrong. Because not all persons who contribute to a person’s death are equally culpable, legislatures justly distinguish between them. The sanction for reckless acts that cause death need not be as severe as the sanction for intentional homicide. Legislatures also reasonably take into account the circumstances of the person whose life is lost. For example, remedies for wrongful death may take into account a person’s stage of development and relationship to any dependents.

....For example, the right to life remains inviolable and absolute though a legislature may choose to sanction those who are most culpable for its deprivation and not others

Similarly, state legislatures have long recognized that abortionists are the true, culpable parties in an abortion. Mothers are often victims of coercion. And mothers suffer the consequences of the abortion procedure itself. For these and other reasons, legislatures may choose not to impose legal sanctions on them, notwithstanding that their unborn children have a right to live.

The Roe Court failed to understand this. The Court looked to state laws that impose criminal sanctions on abortionists, rather than on the mothers themselves, and then erroneously inferred that the law is indifferent to the lives of the unborn. Roe, 410 U.S. at 157 n.54. ...

[Many prolifers similarly misunderstood]

That a right is absolute means simply that it is vested—in jurisprudential terms, that it has built into it an immunity from retrospective or retroactive abrogation—so that governments are powerless to deprive any person of the right unless and until the person has been proven to have forfeited the right by committing some wrong, and that the wrong has been established in some proceeding that satisfies the requirements of due process, or until the person dies a natural death. Id. at *125, 128-30.

,,,,the right to life is a right not to be intentionally killed. It is not a guarantee against death ‘

34 141 International Legal Scholars

Not even foreign legal authorities support any right to abortion. 141 International Legal Scholars submitted an amicus brief in the Dobbs v. Jackson case declaring that “Whatever role international law plays in evaluating abortion regulations in the United States, it offers no basis for the existence of a human right to abortion.” (http://www.supremecourt.gov/DocketPDF/19/19-1392/185170/20210729071535904_19-1392%20Amicus%20Brief%20of%20141%20International%20Legal%20Scholars.pdf) “The minority of States that choose to allow elective abortion impose a standard gestational limit of twelve weeks, which is more restrictive than Mississippi’s Gestational Age Act.”

“If the Court chooses to consult international law in this case, it will find there is no treaty that recognizes a so-called human right to abortion, nor has such a right been established through customary law. To the contrary, the practice across all regions demonstrates a consistent State prerogative to protect unborn life. Nor has any international court declared the existence of an international right to abortion, even in regions with the most permissive abortion regimes. Thirdparty actors seeking to invent a new right to abortion err when interpreting key international instruments, such as the Convention on the Elimination of Discrimination against Women, the Rome Statute, and the International Conference on Population and Development. The clear language in those documents defies any attempt to repurpose them to create an international human right to abortion.

“On the other hand, provisions recognizing the unborn child as a rights-holder can be found in many international human rights instruments, including the American Convention on Human Rights, the United Nations Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. Most States choose to exercise the prerogative to protect unborn life by regulating abortion much more strictly than in the United States. Even in the minority of States that permit elective abortions, most specify a gestational limit of twelve weeks. That limit is more restrictive than Mississippi’s Gestational Age Act, which allows elective abortion until fifteen weeks’ gestation, and then permits abortion only for medical emergencies or severe fetal abnormality.”

35 Prolife Center at the University of St. Thomas

The Court should make clear that the States are not required to permit abortions for reasons relating to the mental or psychological health of the pregnant woman, or for undefined reasons of health, either of which would lead the Court, and the country, back to a regime of abortion–on–demand.

36 Mary Kay Bacallao Advocating for Unborn Children

It is time to extend to unborn children the equal protection and due process rights they enjoyed in Mississippi until the Roe Court made an elementary grammar error, using a phrase that conferred citizenship in one clause to define personhood for other clauses. It is time to correct the Roe Court’s error in refusing to determine when life began and in the same stroke of the pen stripping the unborn of their personhood, citing the very amendment that codified the right of all persons, born and unborn, to equal protection and due process.

THE ROE COURT MISINTERPRETED THE MEANING OF THE WORD “PERSON” AS FOUND IN THE FOURTEENTH AMENDMENT. The Fourteenth Amendment to the U.S. Constitution3 includes the following three references to persons:

[1.] “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

[2.] “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;”

[3.] “nor deny to any person within its jurisdiction the equal protection of the laws.”

Here, in looking at statutory construction cannons such as noscitur a sociis, which means, “it is known by its companions,” the meaning of the word “persons” can only be ascertained by its associates. In the first instance, “persons” is being modified by “born or naturalized in the United States, and subject to the

3 U.S. Const. amend. XIV (adopted July 9, 1868) Text: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

jurisdiction thereof…” Here, “persons” is a general term that is being limited at least by two conditions, either “born” or “naturalized.” In this instance, the Fourteenth Amendment limits the type of persons who can be citizens to those either born or naturalized in the United States and subject to the jurisdiction thereof.

In the second instance, no “person” shall be deprived of life, liberty, or property, without due process of law, where “person” is used generally, unmodified by “born” or “naturalized, etc.” Here “citizens” as defined in the first instance is separate and distinct from “person” found in the second part of the sentence. The second use of “person” is unmodified. These persons are not necessarily citizens, nor does it follow that they must necessarily be “born.”

In the third instance, “any person” is also unmodified by either “born” or “naturalized, etc.” In other words, “person” is not limited to a person “born” or “naturalized in the United States,” rather, the term “person” is again unmodified and used in the general sense. Thus, where the second use of the term “person” prohibits a State from depriving a person of life, liberty, or property, without due process of law, “person” is used generally rather than in the context of being “born.” Additionally, where the third use of the term “person” does not allow a State to deny to any person within its jurisdiction the equal protection of the laws, again, “person” is unmodified. This does not limit protection to “persons born or naturalized in the United States…”

To assert that one word, such as “born,” that is used in a single line to limit a general term, such as “person,” in one provision also limits that same general term, in this case “person,” each time it occurs 5 is linguistically incorrect. It is the same as saying that because one line refers to a black cat, all other times the word cat appears it can only refer to cats that are black. This is not the way language works.

There is no evidence that the original meaning of person was limited to those who were born. Rather, the corpus evidence found in COHA, the Hansard Corpus, and the Corpus of U.S. Supreme Opinions point to the unborn as persons, legally able to inherit property and in need of protection.

The Roe court did not resolve the question of when life begins, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”4 However, the Roe Court maintained that “… the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”5 The Roe Court used faulty linguistics in determining that someone unborn was not a ‘person’ as used in second and third parts of the Fourteenth Amendment. In the first use of person, ‘born’ modifies or limits the meaning of ‘person,’ not the other way around. The Roe Court did not use proper linguistic interpretation of the text of the Fourteenth Amendment when limiting its interpretation of the second and third references to persons as those who were born.

The second reference to person in the Fourteenth Amendment, stating that a State may not deprive any person of life, liberty, or property, without due process of law applies to persons both born and unborn. The third reference to person in the Fourteenth Amendment, where a State may not deny to any person within its jurisdiction the equal protection of the laws also applies to persons both born and unborn. Simple linguistics, applied to these provisions in the U.S. Constitution, where the word person is unmodified by the word “born” confirms that a person is a person no matter how small.

In the 1850’s, there is “love of an unborn child.”18 There is also mention of the absurdity of a “price for an unborn infant”19 and making “slaves of the unborn”20 in an argument against slavery in the New England Yale Review. In the “other” category there is a reference to the divine “I AM” as unborn21 in Rational Cosmology. In the 1860’s, a popular magazine called The Atlantic deals with the “crime, so common among church going ladies and others, of murdering their unborn offspring!”22 The same magazine asks a question about, “those who provide women with [th’] means of killing their unborn children, - a double crime, murder and suicide?”23 The Atlantic also mentions the “murder of unborn offspring” in the context of a “Church powerful enough to guard the issues of life.”24 In the 1870’s, the English Constitution mentions unborn children in the context of persons: “An Act of Parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. There is an advocate for every interest, and every interest clamours for every advantage.”25

37 Professor Randy Beck

Professor Tribe’s Justification Falls Short Because a Pregnant Woman Cannot Transfer a Viable Fetus to Other Caretakers ... 20 V. Viability Is an Arbitrary Line for Measuring Abortion Rights ...................... 22 VI. Stare Decisis Should Not Preserve an Arbitrary Rule Without Constitutional Warrant ..

38 Christian Legal Society and Robertson Center for Constitutional Law