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Brief Amici Curiae for Democrats for Life of America Five Democratic Legislators from Five Individual State Legislatures on Behalf of Petitioners

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Brief Amici Curiae for Democrats for Life of America Five Democratic Legislators from Five Individual State Legislatures on Behalf of Petitioners No. 19-1392 In The Supreme Court of the United States -------------------------- ♦ --------------------------- THOMAS E. DOBBS, M.D., M.P.H., STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., Petitioners, v. JACKSON WOMEN’S HEALTH ORGANIZATION, ON BEHALF OF ITSELF AND ITS PATIENTS, ET AL., Respondents. -------------------------- ♦ -------------------------- On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit -------------------------- ♦ -------------------------- BRIEF AMICI CURIAE FOR DEMOCRATS FOR LIFE OF AMERICA FIVE DEMOCRATIC LEGISLATORS FROM FIVE INDIVIDUAL STATE LEGISLATURES ON BEHALF OF PETITIONERS -------------------------- ♦ -------------------------- Julian McPhillips Counsel of Record MCPHILLIPS SHINBAUM, LLP 516 South Perry Street Montgomery, Alabama 36104 (334) 262-1911 [email protected] Counsel for Amici Curiae Dated: July 29, 2021 THE LEX GROUPDC 1050 Connecticut Avenue, N.W. Suite 500, #5190 Washington, D.C. 20036 (202) 955-0001 (800) 856-4419 www.thelexgroup.com i TABLE OF CONTENTS Page TABLE OF CONTENTS.............................................. i TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICI CURIAE ................................ 1 INTRODUCTION ....................................................... 2 SUMMARY OF THE ARGUMENT ........................... 2 ARGUMENT ............................................................... 4 I The fetal viability standard of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey has stopped the necessary debate in the political branches of government about the various ways’ government, and society in general, can and should support mothers and children ............................ 4 II. To strike down the Mississippi law would be to interfere with the state’s need for data and mandatory reporting laws, which is essential with regard to evaluating how the states can craft regulations that best protect their citizens ........................................ 14 CONCLUSION ......................................................... 17 APPENDIX TO BRIEF ii TABLE OF AUTHORITIES Page(s) CASES Allegheny Reprod. Health Ctr. v. Pennsylvania Dep't of Hum. Servs., 249 A.3d 598 (Pa. Commw. Ct. 2021) ............ 12 Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) ........................................ 10 Beal v. Doe, 432 U.S. 438 (1977) ........................................ 11 Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988) .......................................... 5 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) .......................................... 9 Calder v. Bull, 3 U.S. 386 (1798) ...................................... 6, 7, 8 Gonzales v. Carhart, 550 U.S. 124 (2007) .......................................... 9 Harris v. McRae, 448 U.S. 297 (1980) ........................................ 11 iii Harned, M. (2009) The Stupak Amendment to H.R.3962 — Maintaining Existing Law .............. 12 June Medical Services LLC v. Russo, 591 U.S., 207 (2020) ............................... passim Maher v. Roe, 432 U.S. 464 (1977) ........................................ 11 Marrs v. Motorola, Inc., 577 F.3d 783, 788 (7th Cir. 2009) ..................... 4 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) ........................................ 10 New Jersey v. T. L. O., 469 U.S. 325 (1985) .......................................... 6 Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, (1976) ........................... 8, 9, 15, 16 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S 833 (1992) ................................. passim Roe v. Wade, 410 U.S. 113 (1973) ................................ passim Whole Woman's Health v. Hellerstedt, 579 U.S. (2016) ................................................. 4 iv STATUTES Mississippi Gestational Age Act, Miss. Code Ann. §41-41-191 ............................. passim N.C. Gen. Stat. Ann. § 7B-301 .................................. 14 Okla. Stat. Ann. Title. 22, § 58 ................................. 14 BOOKS, LAW REVIEWS, AND JOURNALS Bailey, M. The Alpha Subpoena Controversy: Kansas Fires First Shot in Nationwide Battle over Child Rape, Abortion and Prosecutorial Access to Medical Records, 74 UMKC L. Rev. 1021, 1041 (2006) ...................................................... 14 Egar, W. Congressional Research Service, Congressionally Mandated Reports: Overview and Considerations for Congress, Report # R46357, dated May 14, 2020 .................................... 15 Green, E. (2019). Why Democrats Ditched the Hyde Amendment, The Atlantic ............................... 13 Guttmacher Institute, Abortion Reporting Requirements https://www.guttmacher.org /state-policy/explore/abortion-reporting- requirements. Last accessed July 28, 2021 .............. 16 Jelen, T. (1995). Perspectives on the Politics of Abortion. Westport, Connecticut: Praeger Publishers .................................................... 11 Mandatory reporting laws, 1 Health L. Prac. Guide § 6A:4 (2021) .................................................. 14 v Mullen, P. (2006). Congressional Reporting: A Management Process to Build a Legislative- Centered Public Administration, https://vtechworks.lib.vt.edu/handle/10919/ 27049 (Apr. 07, 2006) ................................................ 15 Nowak J., Rotunda R., & Young J., (1983) Hornbook on Constitutional Law 2nd Ed., Student Ed., West Publishing Company, St. Paul Minnesota ........................................................ 6-7 Scalia, A. The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989) ......................... 5 Webber, G. Et. al., Legislated Rights: Securing Human Rights Through Legislation (2018) ............. 10 Weixel, N. (2021). HHS spending bill advances without Hyde Amendment ........................................ 13 1 INTERESTS OF AMICI CURIAE1 Democrats for Life of America (“DFLA”) is the preeminent national organization for pro- life Democrats. DFLA believes that the protection of human life at all stages is the foundation of human rights, authentic freedom, and good government. These beliefs animate DFLA’s opposition to abortion, euthanasia, capital punishment, embryonic stem cell research, poverty, genocide, and all other injustices that directly and indirectly threaten human life. DFLA shares the Democratic Party’s historic commitments to supporting women and children, strengthening families and communities, and striving to ensure equality of opportunity, reduction in poverty, and an effective social safety net that guarantees that all people have sufficient access to food, shelter, health care, and life’s other basic necessities. Amici have a strong interest in seeing the Court uphold Petitioner’s argument that Mississippi’s Gestational Age Act pass Constitutional muster, with regard to both supporting the protection of human life, as well as supporting the ability of state 1 Pursuant to U.S. Supreme Court Rule 37.6, the undersigned certifies that no counsel for a party authored any part of this brief, and no person other than amici, their members, or their counsel made a monetary contribution intended to fund its preparation or submission. Amici curiae timely provided notice of intent to file this brief to all parties, and all parties consented to the filing of this brief. 2 governments to mandate reporting requirements, as to ensure the effectiveness of implemented government regulatory schemes. Amici are also include state legislators who are elected officials who have a direct interest in the outcome of this case to determine best practices of legislating for their constituents’ interests in their respective states. (See Appendix Page 1) INTRODUCTION Mississippi’s Gestational Age Act, Miss. Code Ann. §41-41-191, enacted in 2018, prohibits abortion after fifteen (15) weeks of gestation, with exceptions for medical emergency or severe fetal abnormality. Thereafter, Respondents Jackson Women’s Health Organization filed a lawsuit challenging the legality of Mississippi’s Gestational Age Act in the United States District Court for the Southern District of Mississippi Northern Division, which granted a temporary restraining order and later entered summary judgment in favor of respondents, which the United States Court of Appeals for the Fifth Circuit affirmed. This Court granted certiorari and limited the issue to the single question of “whether all pre- viability prohibitions on elective abortions are unconstitutional.” SUMMARY OF ARGUMENT The fetal viability standards for abortion jurisprudence as set out by this Court in Roe v. Wade2 and Planned Parenthood of Southeastern 2 Roe v. Wade, 410 U.S. 113 (1973). 3 Pennsylvania v. Casey,3 have contributed both to confusion and partisan political gridlock. Not only has the Court’s fetal viability standard stopped necessary debate in the political branches of government as to the various ways to support mothers and children, its abstract and murky standards, and the balancing test of burdens and benefits that it requires in its application, has caused courts to act as legislators. The importance of regulation in all areas of government, particularly abortion, is stifled by the Court’s current jurisprudence, as numerous state laws regulating abolition crafted and passed by legislators as representatives of the people have been struck down by these vague standards laid down by this Court, preventing
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