Supreme Court of the United States...Respondent–Cross-Petitioner. _____ On Writs of Certiorari to the United States ... like abortion, infanticide, euthanasia, and physician-assisted

Nos. 18-1323, 18-1460

In the Supreme Court of the United States__________________

JUNE MEDICAL SERVICES L.L.C., ET AL.,Petitioners–Cross-Respondents,

v.

REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENTOF HEALTH AND HOSPITALS,

Respondent–Cross-Petitioner.__________________

On Writs of Certiorari to the United States Court of Appeals for the Fifth Circuit

__________________

BRIEF FOR AMICUS CURIAE RIGHT TO LIFEOF MICHIGAN SUPPORTING RESPONDENT-

CROSS-PETITIONER__________________

WILLIAM WAGNER Counsel of RecordERIN ELIZABETH MERSINOJOHN S. KANEKATHERINE L. HENRYGREAT LAKES JUSTICE CENTER5600 W. Mount Hope HwyLansing, MI 48917(517) [email protected]

Counsel for Amicus CuriaeJanuary 2, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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QUESTION PRESENTED

Amicus curiae focuses on the following issue:

Whether the Fifth Circuit’s decision upholdingLouisiana’s law requiring physicians who performabortions to have admitting privileges at a localhospital conflicts with this Court’s binding precedent inWhole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292(2016)?

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv

STATEMENT OF IDENTITY AND INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE LOUISIANA LAW DOES NOTINTERFERE WITH A LIBERTY INTERESTPROTECTED BY THE 14TH AMENDMENT. . . . 5

A. An Honest Understanding of the TrueMeaning of the 14th Amendment Does NotInclude a Liberty Intertest Protecting a Rightto Abort an Unborn Child . . . . . . . . . . . . . . . . 6

B. Stare Decisis Does Not Control this CourtWhere Resolution of the Issue, as Here, Presupposes and Relies upon WronglyDecided Precedent . . . . . . . . . . . . . . . . . . . . . . 9

C. Stare Decisis Does Not Control This Court Where Underlying Precedent is Extra-C o n s t i t u t i o n a l a n d U n d e r m i n e sRepresentative Constitutional Governanceand the Rule of Law . . . . . . . . . . . . . . . . . . . 10

1) Roe’s Abortion Jurisprudence Exceeds theScope of the Article III Judicial Power . . 11

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2) Roe’s Abortion Jurisprudence BypassesArticle V’s Constitutionally RequiredProcesses for Amending the Constitution . . 15

3) Roe’s Abortion Jurisprudence Threatens theJudiciary’s Institutional Legitimacy. . . . . . . 16

4) Roe and its Progeny Inadequately Addressthe Profound Government Interest inProtecting the Inherent Value of UnbornHuman Life . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. THE LOUISIANA LAW DOES NOT POSE ANUNDUE BURDEN . . . . . . . . . . . . . . . . . . . . . . . 21

A. Whole Woman’s Health Does Not InvalidateAll Laws Requiring Hospital AdmittingPrivileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. This Court’s Current Policy Requires anActual and Undue Burden, not a PotentialBurden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIES

CASES

Dred Scott v Sandford, 60 U.S. 393 (1857). . . . . . . . . . . . . . . . . . . 5, 10, 18

Gibbons v. Ogden, 9 U.S. (1 Wheat.) 1 (1824) . . . . . . . . . . . . . . . . . 13

Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007). . . . . . . . . . . . . . . . . 19, 22, 24

June Medical Services, LLC v. Gee, 905 F.3d 787 (5th Cir. 2018). . . . . . . . . . . . . . . . . 3

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 13

Marsh v. Chambers, 463 U.S. 783 (1983). . . . . . . . . . . . . . . . . . . . . . . . 7

McCulloch v. Maryland, 17 U.S. 316 (1819). . . . . . . . . . . . . . . . . . . . . . . . 13

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). . . . . . . . . . . . . . . . . . . . . 13

O’Neill v. Morse, 385 Mich. 130 (1971). . . . . . . . . . . . . . . . . . . . . . 20

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). . . . . . . . . . . . . . . . . . . . . 2, 23

Roe v. Wade, 410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . passim

Washington v. Glucksberg, 521 U.S. 702 (1997). . . . . . . . . . . . . . . . . . . . . . . 22

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Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). . . . . . . . . . . . . . . . . passim

Womack v. Buchhorn, 384 Mich. 718 (1971). . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTION AND STATUTES

U.S. Const. arts. I. . . . . . . . . . . . . . . . . . . . . . . . 13, 16

U.S. Const. arts. II . . . . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const. art. III . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. art. V . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . passim

LA. ADMIN. CODE § 46:7303 . . . . . . . . . . . . . . . . . . . 23

LA. ADMIN. CODE § 46:7309(A)(2). . . . . . . . . . . . . . . 23

MICH. COMP. LAWS § 333.7404 . . . . . . . . . . . . . . . . . 20

MICH. COMP. LAWS § 600.2045 . . . . . . . . . . . . . . . . . 20

OTHER AUTHORITIES

Alexander M. Bickel, The Original Understandingand the Segregation Decision, 69 Harv. L. Rev. 1(1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Robert Bork, THE TEMPTING OF AMERICA(Touchstone, 1990) . . . . . . . . . . . . . . . . . . . . . . . 12

Brutus, The Power of the Judiciary, The New-YorkJournal, New York City, March 20, 1788,http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/78.htm . . . . . . . . . . 18

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CONG. GLOBE, 39TH CONG., 1ST SESS. (1866). . . . . 7, 8

Ludwig Edelstein, THE HIPPOCRATIC OATH (JohnsHopkins Press 1943) . . . . . . . . . . . . . . . . . . . . . . 20

THE FEDERALIST NO. 78 (Alexander Hamilton). . . . 14

Thomas Jefferson, September 6, 1819 Letter fromThomas Jefferson to Spenser Roane, https://founders.archives.gov/documents/Jefferson/98-01-02-0734. 19

Thomas Jefferson, October 31, 1823, Letter fromThomas Jefferson to Adamantios Coray, https://founders.archives.gov/documents/Jefferson/98-01-02-3837 . . . . . . . . . . . . . . . . . . . . . . . . 15

Richard Kluger, SIMPLE JUSTICE: THE HISTORY OFBROWN V. BOARD OF EDUCATION AND BLACKAMERICA’S STRUGGLE FOR EQUALITY (1sted.1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

George Santayana, THE LIFE OF REASON, Scribner’s,(1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

www.numberofabortions.com . . . . . . . . . . . . . . . . . 20

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STATEMENT OF IDENTITY AND INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, amicus curiae,Right to Life of Michigan (hereinafter RTL) submitsthis brief supporting Respondent, Dr. Rebekah Gee,Secretary, Louisiana Department of Health andHospitals.1

RTL is a nonpartisan, nonsectarian, nonprofitorganization of caring people, united to protect theprecious gift of human life from fertilization to naturaldeath. RTL encourages community participation inprograms that foster respect and protection for humanlife. RTL gives a voice to the voiceless on life issueslike abortion, infanticide, euthanasia, and physician-assisted suicide. RTL educates people on these issuesand motivates them to action.

RTL fights for the defenseless and most vulnerablehuman beings, born and unborn.

Amicus curiae understands the constitutionalmeans for amending the Constitution. Within theseconstitutional parameters, RTL pursues passage andratification of a Human Life Amendment. Amicuscuriae also understands the proper scope of the ArticleIII judicial power and the proper role of the federal

1 All parties have consented to the filing of the amicus curiae briefin this matter. Amicus further state that no counsel for any partyauthored this brief in whole or in part, and no counsel or partymade a monetary contribution intended to fund the preparation orsubmission of this brief. No person other than amicus curiae, itsmembers, or its counsel made a monetary contribution to thepreparation or submission of this amicus brief.

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judiciary in our constitutional republic. From itsexperience, it holds special knowledge helpful to thisCourt about the impact of an unelected judiciarychanging the meaning of constitutional provisions likethe Due Process Clause of the 14th Amendment. Amicus curiae, therefore, files this brief to preserve theconstitutional principle of separation of powers and todefend the dignity of human life.

INTRODUCTION In 1973, the citizens of the vast majority of states,

through their elected representatives, legislativelyproscribed abortion. This Court in Roe v. Wade, 410U.S. 113 (1973) reaffirmed a court-created right ofprivacy/personal autonomy. Roe extended thisjudicially contrived constitutional liberty to include theright to abort an unborn child. In doing so, Roe enactedits now infamous trimester test. Roe’s judge-craftedtrimester policy soon collided with itself. Thishappened when scientific advances made survival ofthe unborn child outside the womb possible earlier andearlier in pregnancy, while advances in abortiontechniques enabled abortionists to kill the child closerand closer to childbirth. This Court, therefore,judicially evolved its policy. Planned Parenthood of Se.Pa. v. Casey, 505 U.S. 833, 869 (1992). Current Courtpolicy now requires state laws protecting the life of themother and her unborn child to meet a court-enactedundue burden test. Id.; Whole Woman’s Health v.Hellerstedt, 136 S. Ct. 2292 (2016) (applying the test tostrike down a Texas statute requiring abortionists tohold local hospital privileges).

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The Fifth Circuit U.S. Court of Appealsdistinguished Whole Woman’s Health in upholding ahospital privileges law enacted by the Louisianalegislature. June Medical Services, LLC v. Gee, 905F.3d 787 (5th Cir. 2018). Petitioners contend theholding in Whole Woman’s Health controls under staredecisis.

SUMMARY OF THE ARGUMENT

Petitioner’s resolution of the question before thisCourt presupposes the existence of a 14th Amendmentliberty interest in abortion. This presupposition iswrong.

This Court in Roe and its progenitor precedentsincorrectly concluded that the meaning of the 14th

Amendment included a liberty interest in the right toabort an unborn child as part of one’s personalautonomy. Not a single word uttered or written in thepromulgation of the 14th Amendment, however, evenremotely suggests that the Amendment includes aright to abortion. Undeniably, it is clear from thehistorical discussion that the authors of theAmendment never contemplated including such adiabolical entitlement. Indeed, judicially contrivingsuch a liberty interest destabilizes representativeconstitutional governance because it: 1) exceeds thescope of the Judicial Power, 2) bypassesconstitutionally required processes for amending theConstitution, 3) undermines the institutionallegitimacy of the judiciary, and 4) fails to adequatelyaddress the profound government interest in protectingunborn human life.

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Petitioner contends that simply because theerroneous decisions in Roe and its progeny occurred,that they must stand. That is wrong. Incorrectlydecided extra-constitutional decisions must not stand. When, as here, the factual and legal grounds for a courtdecision are incorrect, policy arguments supportingstare decisis do not justify perpetuation of those errors. Likewise, when a court decision extra-constitutionallycreates a rule, policy arguments supporting staredecisis lack merit.

Because the 14th Amendment does not include theliberty to kill an unborn child, the Louisiana law atissue cannot violate the 14th Amendment. This Courtshould, therefore, overrule Roe.

Finally, even if this Court does not overrule Roe’sillegitimately created right to abortion now, this Courtshould uphold the Louisiana statute under the “undueburden” standard used in Roe’s progeny, includingWhole Women’s Health.

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ARGUMENT

I. THE LOUISIANA LAW DOES NOTINTERFERE WITH A LIBERTY INTERESTPROTECTED BY THE 14TH AMENDMENT

The 14th Amendment to the United StatesConstitution states: “…nor shall any State deprive anyperson of life, liberty, or property, without due processof law…” U.S. Const. amend. XIV.

The Constitution is not just a set of guidelines. It isthe framework on which we the people constructed ourgovernment and our legal system. The words of theConstitution both create the Supreme Court’s authorityand give it definition. Highly qualified draftsmencrafted those words quite clearly to express a simplemeaning. Faithful adherence to those words serve asthe touchstone for measuring the fulfillment of thisCourt’s solemn duty. Every Justice taking the oath ofoffice swears to uphold the Constitution as written, notas he or she prefers it be written.

Honestly discerning and applying the truthfulmeaning that the Drafters originally embodied in theConstitution’s language should be this Court’s highcalling. Making those words instead mean whatcontemporary judges prefer them to mean, is the firststep on the path to tyranny. For example, in Dred Scottv. Sandford, an unelected Supreme Court deemed somehuman life unworthy of Constitutional protection basedon the color of one’s skin. 60 U.S. 393 (1857). Thatjudicially contrived policy further separated a dividednation, precipitating a bloody civil war.

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After the Civil War, the people of the United Statesformally invalidated Dred Scott’s diabolical decree byratifying the Fourteenth Amendment. U.S. Const.amend. XIV.

Proving that “those who cannot remember the pastare condemned to repeat it,”2 this Court in Roe v.Wade, 410 U.S. 113 (1973), again deemed some humanlife unworthy of constitutional protection. Here theCourt incorrectly declared provisions of the 14th

Amendment to include a liberty interest in aborting anunborn child based upon the child’s age.

A. An Honest Understanding of the TrueMeaning of the 14th Amendment Does NotInclude a Liberty Intertest Protecting aRight to Abort an Unborn Child

Petitioner contends Louisiana’s law interferes witha 14th Amendment liberty interests found to exist bythis Court in Roe and its progenitor precedents.Resolution of the issue before this Court, therefore,presupposes the existence of a 14th Amendment libertyinterest in abortion. Unfortunately for Petitioner, thatpresupposition is incorrect.

Accordingly, to properly resolve the issue here, thisCourt must necessarily revisit its core precedent inRoe. When doing so, this Court must correct any errorthere as to whether the meaning of 14th Amendmentincludes a liberty interest in the right to abort anunborn child. This Court has long sought to honor its

2 George Santayana, THE LIFE OF REASON, at 284, Scribner’s,(1905).

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duty of determining, rather than altering,constitutional meaning by understanding suchmeaning in its historical context. See, e.g., Marsh v.Chambers, 463 U.S. 783, 790 (1983) (explaining howhistorical evidence shows not just what the draftsmenintended a constitutional provision to mean, but alsohow they thought it applied).

The debates of Congress and documents of the statelegislatures, that ratified the 14th Amendment, provide“the most direct and unimpeachable indication oforiginal purpose . . . .” Alexander M. Bickel, TheOriginal Understanding and the Segregation Decision,69 Harv. L. Rev. 1, 7 (1955).

Most of the discussion in the first session of the39th Congress related to the subject matter of the 14th Amendment. CONG. GLOBE, 39TH CONG., 1ST SESS.passim (1866). This discussion included governance ofthe South, readmission of Southern States, Unionloyalty, issues concerning the newly freed black race,and the distribution of powers between the states andthe federal government. Id. The bulk of the session-long debate concerned the following measures: theFreedman’s Bureau Bill (vetoed by the president), theCivil Rights Act of 1866, (enacted over a veto), and the14th Amendment itself. Id. The first two of thesemeasures were statutes, passed in response to theBlack Codes. Id. Their premise was the protection ofthe newly freed black race. Id.; Richard Kluger, SIMPLEJUSTICE: THE HISTORY OF BROWN V. BOARD OFEDUCATION AND BLACK AMERICA’S STRUGGLE FOREQUALITY 46 (1st ed.1976).

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Not a single word uttered or written in thepromulgation of the 14th Amendment even remotelysuggested that the Amendment included a libertyinterest in the right to kill one’s unborn child. CONG.GLOBE, 39TH CONG., 1ST SESS. passim (1866). Indeed,it is clear from the historical discussion that theauthors of the Amendment never contemplatedincluding such a diabolical entitlement. Id.

Moreover, for the Roe Court to reach the result itdid, it “had to find within the scope of the 14th

Amendment a right that was apparently completelyunknown to the drafters of the Amendment.” Roe, 410U.S. at 174 (Rehnquist, C.J., dissenting). To illustrate,Connecticut proscribed abortion as early as 1821. Id. By the time adoption of the 14th Amendment occurredin 1868, state and territorial legislatures had enactedat least 36 laws proscribing abortion. Id. at 174-175.

This Court’s abortion decisions, therefore,incorrectly declare the meaning of the 14th Amendmentto include a right to abortion. This Court shouldcorrect that error by overruling Roe and its progeny. Correctly understood, the 14th Amendment does notinclude a liberty interest to abort an unborn child. TheLouisiana statute at issue, therefore, cannot violate the14th Amendment.

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B. Stare Decisis Does Not Control this CourtWhere Resolution of the Issue, as Here, Presupposes and Relies upon WronglyDecided Precedent

Stare decisis should not control this Court when aprecedent relied upon was, as here, wrongly decided. Roe and its progenitor precedents erroneouslyconcluded, both as matter of fact and law, that themeaning of the 14th Amendment included the right tokill one’s unborn child as part of one’s personalautonomy.3 Because of the error, Roe and its progenydeem abortion a fundamental constitutional liberty.See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016). Desiring to continue this fatal error,Petitioner argues:

Adherence to precedent is ‘a foundation stone ofthe rule of law.’” Kisor v. Wilkie, 139 S. Ct. 2400,2422 (2019) (quoting Michigan v. Bay MillsIndian Cmty., 572 U.S. 782, 798 (2014)). Suchfidelity “‘promotes the evenhanded, predictable,and consistent development of legal principles,fosters reliance on judicial decisions, andcontributes to the actual and perceived integrityof the judicial process.’” Kimble v. MarvelEntm’t, LLC, 135 S. Ct. 2401, 2409 (2015)(quoting Payne v. Tennessee, 501 U.S. 808, 827(1991)). Stare decisis thus functions as “a basicself-governing principle within the JudicialBranch, which is entrusted with the sensitiveand difficult task of fashioning and preserving a

3 See Section I. A. of this amicus brief.

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jurisprudential system that is not based upon‘an arbitrary discretion.’” Patterson v. McLeanCredit Union, 491 U.S. 164, 172 (1989) (quotingThe Federalist No. 78, p. 490 (H. Lodge ed. 1888)(A. Hamilton)). Pet’rs’ Br. at 21.

Policy arguments supporting stare decisis hold nomerit, however, in cases like Dred Scott, Roe, or WholeWomen’s Health, when the Court decision relied uponwas incorrect and extra-constitutional.

Petitioner contends that simply because thedecisions in Roe and its progeny occurred, that theymust stand. But incorrect decisions require correction,not preservation. This Court should not adhere toRoe’s error for the sake of “predictability” or“consistency”. Being consistently and predictablywrong is no virtue. This Court should instead set anew life-affirming precedent in accordance with theConstitution; it should do so now, before its currentprecedent deprives another human life of his or herliberty.

C. Stare Decisis Does Not Control This Court Where Underlying Precedent is Extra-Const i tut ional and UnderminesRepresentative Constitutional Governanceand the Rule of Law

Stare decisis should not bind this Court when aprecedent relied upon was, as here, extra-constitutional.

Proponents of evolving judicial preferences wronglyclaim that by amending the Constitution from thebench, unelected judges can bestow new meanings and

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even new rights and understandings for the people.4 Inthis jurisprudential wonderland, judges wrongly seethe Constitution as an evolving organism, the meaningof which they believe their office empowers them to manipulate. Becoming Platonic philosopher kings,they rule by judicial fiat, unbound by the constraints ofthe Constitution’s actual language. At great risk to ourRepublic, the Court’s abortion decisions embed thistyrannical principle in American constitutionaljurisprudence.

Roe, with its progenitor precedents and progeny,supplants our politically accountable system ofgovernance with an unelected judiciary’s own proteanpreferences. In doing so, this Court’s abortionjurisprudence: 1) exceeds the scope of the JudicialPower, 2) bypasses constitutionally required processesfor amending the Constitution, 3) undermines thejudiciary’s institutional legitimacy, and 4) fails toadequately address the profound government interestin protecting unborn human life.

1) Roe’s Abortion Jurisprudence Exceeds theScope of the Article III Judicial Power

Roe, its progeny, and its progenitor precedents, allacted outside this Court’s constitutional authority byexercising will instead of judgement. These decisionsdangerously undermine constitutional representativegovernance under the Rule of Law.

4 Disturbingly, it stands to reason that a democraticallyunaccountable judiciary capable of giving rights andunderstandings is equally efficient at taking them away.

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The American judiciary holds a special role andduty in the constitutional order. As Judge Robert Borkobserved:

The judiciary’s great office is to preserve theconstitutional design. It does this not only byconfining Congress and the President to thepowers granted them by the Constitution andseeing that the powers granted are not used toinvade the freedoms guaranteed by the Bill ofrights, but also, and equally important, byensuring that the democratic authority of thepeople is maintained in the full scope given bythe Constitution.

Robert Bork, THE TEMPTING OF AMERICA (Touchstone,1990) 65.

The words and structure of the AmericanConstitution contemplate a judicial branch with nopower to make or enforce laws.5 No enumeratedjudicial power exists for the judiciary to amend theConstitution or evolve the meaning of its provisions. Itis undisputed that

5 Article III provides:

The judicial Power of the United States, shall be vested inone supreme Court, and in such inferior Courts as theCongress may from time to time ordain and establish... The judicial Power shall extend to all Cases, in Law andEquity, arising under this Constitution, the Laws of theUnited States, and Treaties made, or which shall be made,under their Authority . . . to Controversies to which theUnited States shall be a Party . . .

U.S. Const, art. III, §§ 1 and 2.

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[t]he Federal Government ‘is acknowledged byall, to be one of enumerated powers.’ That is,rather than granting general authority toperform all the conceivable functions ofgovernment, the Constitution lists, orenumerates, the Federal Government’spowers. . . . The enumeration of powers is alsoa limitation of powers, because ‘[t]heenumeration presupposes something notenumerated.’ The Constitution’s expressconferral of some powers makes clear that itdoes not grant others. And the FederalGovernment ‘can exercise only the powersgranted to it.

Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.2566, 2577 (2012) (internal citations omitted) (quotingMcCulloch v. Maryland, 17 U.S. 316, 404-405 (1819));U.S. Const. art. I, § 8, cls. 5, 7, 12; Gibbons v. Ogden, 9U.S. (1 Wheat.) 1, 194-95 (1824).

The Roe Court exceeded the scope of the Article IIIJudicial Power. In Roe, the 14th Amendment served asthe applicable constitutional Rule of Law. Instead offinding and applying a truthful understanding of themeaning of the 14th Amendment, the Roe Courtconjured a new understanding and meaning intoexistence.

Nothing in Article III empowers the Court to changeor “evolve” the Constitution. Moreover, nothing inMarbury v. Madison’s ubiquitous assertion that it isthe province of the Court to say what the law is,empowers the Court to say instead what it prefers thelaw to be. 5 U.S. (1 Cranch) 137 (1803).

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The Roe Court, venturing far beyond the scope of itsArticle III powers, improperly evolved the trueunderstanding of the 14th Amendment from somethingdesigned to protect the inherent value of human life, toinstead include a fictitious liberty interest in the rightto abortion. In doing so, a politically unaccountableCourt created ex nihilo an entitlement to kill an unbornchild, all because a group of unelected Justicespreferred it so.

Hamilton explains why wilful judicial policymakingimproperly conflicts with the Constitution’s design forrepublican governance:

It can be of no weight to say that the courts, onthe pretense of a repugnancy, may substitutetheir own pleasure to the constitutionalintentions ....The courts must declare the senseof the law; and if they should be disposed toexercise WILL instead of JUDGMENT, theconsequence would equally be the substitution oftheir pleasure to that of the legislative body.

THE FEDERALIST NO. 78 (Alexander Hamilton)

The Constitution, therefore, assumes ajurisprudence obligating the judiciary to honestly applyconstitutional provisions according to their truemeaning.

When, as in Roe, policy preferences of politicallyunaccountable judges instead supplant policies of thepeople’s representatives, government ceases torepresent the people. As early as 1823, ThomasJefferson observed the threat to republican governancefrom the judiciary exercising will instead of judgment:

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Their decisions, seeming to concern individualsuitors only, pass silent and unheeded by thepublic at large; that these decisions neverthelessbecome law by precedent, sapping by little andlittle the foundations of the Constitution, andworking it’s change by construction, before anyone has perceived that this invisible andhelpless worm has been busily employed inconsuming it’s substance.

Thomas Jefferson, October 31, 1823, Letter fromThomas Jefferson to Adamantios Coray, https://founders.archives.gov/documents/Jefferson/98-01-02-3837 (last visited December 29, 2019).

Stare decisis should not bind this Court when aprecedent relied upon extra-constitutionally exceedsthe scope of the Article III Judicial Power. Amicuscuriae, therefore, urge this Court to overrule Roe.

2) Roe’s Abortion Jurisprudence BypassesArticle V’s Constitutionally RequiredProcesses for Amending the Constitution

Judicially evolving the meaning of provisions in theConstitution, as Roe did, bypasses constitutionallyrequired political processes that specifically requireinvolvement of politically accountable statelegislatures. Article V of the Constitution, in pertinentpart, provides:

The Congress, whenever two thirds of bothhouses shall deem it necessary, shall proposeamendments to this Constitution, or, on theapplication of the legislatures of two thirds ofthe several states, shall call a convention for

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proposing amendments, which, in either case,shall be valid to all intents and purposes, as partof this Constitution, when ratified by thelegislatures of three fourths of the severalstates, or by conventions in three fourthsthereof, as the one or the other mode ofratification may be proposed by theCongress. . . .

U.S. Const. art. V.

Thus, although in Roe the judicial branch held thepower to honestly say what the provisions of the 14th

Amendment truthfully meant, that power did notextend to amending or evolving that meaning. TheConstitution delegates and reserves such power toamend only to those politically accountable to thepeople.

Again, stare decisis should not control this Courtwhen a precedent relied upon was, as here, extra-constitutional. Judicially amending the meaning of aconstitutional provision, as Roe did, usurps the people’sauthority contrary to Article V’s explicit processes. Roe, in doing so, undermined republican governanceand the Rule of Law. This Court should, therefore,overrule Roe now.

3) Roe’s Abortion Jurisprudence Threatens theJudiciary’s Institutional Legitimacy

The Constitution expressly delegates specificlawmaking powers to the Congress and specificenforcement powers to the President. U.S. Const. arts.I and II. These enumerated powers provide legitimacywhen Congress or the President act pursuant to such

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powers while carrying out their respectiveconstitutional roles. Unlike these enumeratedlegislative and executive powers, the Constitution’sdelegation of the Judicial Power includes no specificenumerated powers to the judiciary to carry out itsconstitutional role of resolving cases andcontroversaries. Nonetheless, the people entrust thenation’s judiciary to independently resolve disputesarising under the Constitution and laws of the UnitedStates. This trust exists only because the peoplecontinue to perceive the exercise of judicial power aslegitimate. The judiciary’s duty to apply the Rule ofLaw, as understood and expressed by the people’srepresentatives, preserves this legitimacy. To facilitatethis calling, Article III inoculates the judiciary againstpolitical interference from the Congress and Presidentby giving lifetime tenure to Federal Judges. U.S.Const. art. III. Federal Judges hold lifetimeappointments so that they may apply existing law toresolve disputes without fear of political consequences.

With constitutionally instituted independencecomes responsibility. The principle of independenceonly preserves institutional legitimacy of the judiciaryif the judiciary exercises judgment based on what theconstitutional provision says, not based on what thejudiciary, as in Roe, wills it to say.

Under the guise of exercising judicial review, Roetemporally retained an illusion of institutionallegitimacy – while stealthily amending theConstitution from the bench. Corrupting itsconstitutionally approved independence (ironicallydesigned to guard against political influence), Roe’s

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imperious policymaking reigns at the cost of its owninstitutional legitimacy. When politicallyunaccountable judges evolve meaning and amendpolicy promulgated by the people’s representatives, itis not surprising when the masses reject it asillegitimate (as they did in Dred Scott and in Roe).

In opposing ratification of the Constitution, theanti-federalists foresaw the threat to representativegovernance from an unchecked independent judiciary:

…[the authors of the constitution] have madethe judges independent, in the fullest sense ofthe word. There is no power above them, tocontrol any of their decisions. . . . In short, theyare independent of the people, of the legislature,and of every power under heaven. Men placed inthis situation will generally soon feel themselvesindependent of heaven itself.

Brutus, The Power of the Judiciary, The New-YorkJournal, New York City, March 20, 1788,http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/78.htm (last visited Dec. 29, 2019)(italics added).

Thomas Jefferson, although on the other side of thedebate, nonetheless likewise understood how anindependent judiciary could lead to an abuse of power:

The constitution… is a mere thing of wax in thehands of the judiciary, which they may twist,and shape into any form they please. It shouldbe remembered, as an axiom of eternal truth inpolitics, that whatever power in any governmentis independent, is absolute also; in theory only,

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at first, while the spirit of the people is up, butin practice, as fast as that relaxes. Independencecan be trusted nowhere but with the people inmass.

Thomas Jefferson, September 6, 1819 Letter fromThomas Jefferson to Spenser Roane, https://founders.archives.gov/documents/Jefferson/98-01-02-0734 (lastvisited Dec. 29, 2019).

The concern of an independent judiciaryundercutting its own institutional legitimacy, continuesto hold merit. The judiciary’s solemn duty requiresadherence to the Rule of Law, as expressed in theConstitution. This duty requires it to resist thetemptation to use its independence, as it did in Roe, toimpose its will over that of the people. TheConstitution guarantees politically accountablerepresentative governance. Usurpation of thatauthority by the judiciary undermines institutionallegitimacy. This Court should, therefore, overrule Roenow.

4) Roe and its Progeny Inadequately Address theProfound Government Interest in Protectingthe Inherent Value of Unborn Human Life

This Court’s precedents correctly recognize that thegovernment holds a “legitimate and substantialinterest in preserving and promoting fetal life.” See,e.g., Gonzales v. Carhart (Carhart II), 550 U.S. 124, 145(2007); see also Roe v. Wade, 410 U.S. at 150(recognizing government interest in protecting life ofthe mother). Nonetheless, this Court’s abortionjurisprudence enabled the killing of over 60 million

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unborn babies in the United States since Roe. Seewww.numberofabortions.com (last visited Dec. 29,2019).

Roe and its progeny uphold the right to abortion aspart of a judicially-created right to privacy andpersonal autonomy. If freedom over one’s body does notlegitimize the use of illicit drugs, though, it ought notlegitimize the killing of a vulnerable unborn humanbeing. See, e.g., MICH. COMP. LAWS § 333.7404

Likewise, a child in the womb holds property rights,and such rights can even result in appointment of aguardian ad litem to protect the unborn child’s interest. See, e.g., MICH. COMP. LAWS § 600.2045. If we, as amatter of public policy, go to such lengths to protect theunborn child’s property interests, ought we not alsoprotect his or her life? Paradoxically, unless the killingof an unborn child occurs via abortion, causes of actionexist for wrongful death or other tortious injuriescommitted against the unborn child. See, e.g., Womackv. Buchhorn, 384 Mich. 718 (1971); O’Neill v. Morse,385 Mich. 130 (1971)

Moreover, the classic Hippocratic Oath recognizesthe inherent value of human life at all stages,providing in pertinent part: “I will not give to a womanan abortive remedy.” Ludwig Edelstein, THEHIPPOCRATIC OATH (Johns Hopkins Press 1943). Everyphysician knows that abortion stops an unborn child’sbeating heart. If a physician seeks to protect prenataldevelopment now though, they must constrainthemselves – not by science or the Hippocratic Oath,but by the philosophy of an unelected Court.

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Recognizing the inherent value of God-given humanlife, a majority of state legislatures protected life in thewomb prior to Roe. When the people participated,government chose to recognize the inherent value of anunborn child’s life. Whatever rights the judiciallypreferred class protected in Roe has, they end whereanother life begins. At such a point in time, thisCourt’s duty to protect life arises. Roe neglected thatduty and, thus, facilitated one of the greatest tragediesin human history. This Court holds the opportunityand the obligation to right that great wrong. May ithave the integrity and fortitude to do so.

To preserve the dignity of human life, and restorerepresentative constitutional governance, this Courtshould overrule Roe now.

II. THE LOUISIANA LAW DOES NOT POSE ANUNDUE BURDEN

Even if this Court chooses to not overrule itserroneous decision in Roe now, the Court should stilluphold the Fifth Circuit’s decision. The Louisiana Lawis not an undue burden.

A. Whole Woman’s Health Does Not InvalidateAll Laws Requiring Hospital AdmittingPrivileges

Whole Woman’s Health did not hold all lawsrequir ing hospital admitt ing privi legesunconstitutional.6 Instead, the Court’s analysis rested

6 A State can, and should, protect the health and safety of womenobtaining surgical procedures. Indeed, the State holds animportant interest in protecting its citizens and furthering

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exclusively upon the factual record. Whole Woman’sHealth, 136 S. Ct. 2292, 2310. The Court consideredwhether requiring abortionists to hold hospitaladmitting privileges, within a 30-miles radius of anabortion clinic, caused an undue burden. Id. TheCourt ruled that evidence in the record demonstratedthe 30-mile radius caused an undue burden. The Courtbased its decision on the testimony of experts andabortion information obtained within the State ofTexas. This Court enumerated its purely factual basisfor the decision in a bullet-pointed list. Id. at 2311. Additionally, the Court noted that the attorneyrepresenting Texas admitted, during oral argument,that the State had no specific evidence to show the 30-mile radius requirement had improved the medicalcare of any specific woman since its enactment. Id. at2311-12. The Court also noted that Texas’ extensivepre-existing regulation of abortion facilities fortified itsdecision that the 30-mile radius regulation created anundue burden, and was not merely a regulation neededto protect health and safety.

The Louisiana law requires that an abortionist hold“active admitting privileges,” and be “a member in goodstanding of the medical staff” of a licensed hospital,

excellence in matters concerning their health. Gonzales v.Carhart, 550 U.S. 124, 157 (2007) (“[I]t is clear the State has asignificant role to play in regulating the medical profession.”);Washington v. Glucksberg, 521 U.S. 702, 731 (1997) (the State “hasan interest in protecting the integrity and ethics of the medicalprofession.”). And this Court has recognized the importance of notonly protecting the woman who obtains the abortion, but also the“the life within the woman” who is the target of the abortion. Gonzales, 550 U.S. at 157.

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“with the ability to admit a patient and to providediagnostic and surgical services to such patient[.]” Act620, § 1(A)(2)(a). Both the legislative record and thelower court’s factual record, are replete with evidenceestablishing Louisiana’s history of serious health andsafety troubles amongst its abortion providers. R O A . 1 1 2 2 1 – 1 1 2 2 3 , R O A . 1 1 2 2 5 – 1 1 2 2 8 ,R O A . 1 1 2 5 6 – 1 1 2 6 0 , R O A . 1 1 2 6 2 – 1 1 2 6 3 ,ROA.11264–11265, ROA.11266–11269.

Moreover, the Act brings the State’s abortionregulations into conformance with its requirements fordoctors who perform other outpatient surgeries. Id. (i.e., the act disallows abortion clinics from providingsurgical procedures with subpar, inadequately licensedphysicians).

Unlike the record in Whole Woman’s Health,existing Louisiana regulations do not providemeaningful review of its abortionists’ credentials, ordisciplinary or malpractice history. Further, the recordshows that abortionists in Louisiana are exempt fromthe normal regulations in place for all other office-based surgeries. LA. ADMIN. CODE § 46:7309(A)(2); id.§ 46:7303. No undue burden exists when a Stateenacts health and safety legislation that merely holdsan abortionist to the same standards it requires for allother physicians.

Whole Woman’s Health’s did not create a bright linerule against States that require abortionists to holdhospital admittance privileges. If this Court wanted tocreate a bright line rule, it would have expressly ruledso. Instead, the Court followed its balancingframework set forth in Casey, 112 S. Ct. 2791, and

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Gonzales, 550 U.S. at 146. The Louisiana law providesnecessary and legitimate health and safety protectionfor women, and rests on a very different record thanthe Texas law in Whole Woman’s Health.

B. This Court’s Current Policy Requires anActual and Undue Burden, not a PotentialBurden

Petitioners have only established a potentialburden, not an actual and undue burden. WholeWoman’s Health presented an as-applied challengethat overturned the State’s regulations when facts inthe record, not predictions, demonstrated theregulation caused a substantial obstacle.

Here, Petitioners failed to establish any actualburden imposed by the Louisiana law. See Pet. App.45a-46a, 55a-56a. This Court has not and should notstart overturning and permanently enjoining importantState health and safety regulations based onconjecture. Whole Woman’s Health required an actualfactual record, not the mere assertion of a hypotheticalor potential burden.

CONCLUSION

For the foregoing reasons, amicus curiae urges thisCourt to overrule Roe and uphold the Judgment of theCourt of Appeals in this case.

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Respectfully submitted,

WILLIAM WAGNER Counsel of RecordERIN ELIZABETH MERSINOJOHN S. KANEKATHERINE L. HENRYGREAT LAKES JUSTICE CENTER5600 W. Mount Hope HwyLansing, MI 48917(517) [email protected]

Counsel for Amicus Curiae