Supreme Court of the United States
In re: State of Sacagawea Public Law B060
Case №17–03, 101 M.S. Ct 102
Wildorca, J., delivered the opinion of the Court, in which Raskolnik, C.J., and BSDDC, AdmiralJones42, Trips_93, RestrepoMU, JJ. joined.
BSDDC, J, concurs in which AdmiralJones42 and Notevenalongname, JJ., join.
Notevenalongname, J., concurs in part and dissents in part.
MoralLesson, J., dissents.[1]
Doubt is the enemy of freedom. Today’s decision is an effort to avoid constitutional doubt as we once again wade into the Constitutional waters in deciding whether Sacagawea Public Law B060 can be sustained. Perhaps more than any other issue abortion is intensely private on the individual level, but is greatly debated in the public. And this debate raises the most complicated and important moral considerations known to humankind. But we are not convinced nor guided by emotion; our only role is to determine the contours of liberty under the Constitution. We find that the Sacagawea law places an undue burden on a woman’s right to privacy by interfering with her right to bodily autonomy. Accordingly, we find that this law is repugnant to the Constitution of the United States, and hold it void entirely.
I. Introduction
Petitioner challenges the constitutionality of Midwestern State Public Law B60 (Protecting the Innocents Act). The Sacagawea law requires fetal burial services, requires paternal consent prior to termination, and forces the mother to accept a recording of the fetal heartbeat — all this through ill-defined language and an apparent inability to defend the law at court. To begin with, §2 makes it compulsory for burial services to be offered to any woman having an abortion; §4 requires that “[b]efore the abortion of a child the father must give his consent to have his child murdered”;and finally, §5 makes “the presence of a religious figure in the operating room” necessary, and allows them to “perform the death rituals” of the aborting mother’s faith. When the case was brought to Court, BSDDC, J., and MoralLesson, J., dissented on granting review as the case had not previously been tried at a lower court.
II. Legal Standard
The Due Process Clause of the Fourteenth Amendment protects a woman’s decision to terminate a pregnancy. This Court has, multiple times, upheld such a right. In re: Midwestern Public Law B005.2 Midwest Equal Rights Act, 100 M.S. Ct. 122 (2016); Stenberg v. Carhart, 530 U.S. 914 (2000); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (plurality opinion); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Roe v. Wade, 410 U.S. 113 (1973). Any state law is unconstitutional if it imposes on the woman’s decision an “undue burden,” described as purposefully placing a substantial obstacle or having an effect creating such for the woman’s right to choose. Casey, supra at 834, 877.
No state may enact a regulation that only serves to frustrate liberty without pursuing a legitimate state interest. Id. at 878. Put another way: the government may not place an undue burden on a woman’s right to terminate her pregnancy. And in the case of spousal or parental consent, the consent of the father is irrelevant to the woman’s decision to have an abortion. Danforth, supra at 69. The Court today shares the same opinion as in In re: Midwestern Public Law B005.2 Midwest Equal Rights Act, supra, about the constitutionality of abortion and this case. There the Court concluded that “this Court has not been presented any evidence to merit a ruling that reverses those previous decisions.” The Court must always — and especially in this case — remember the principles of integrity and legitimacy of stare decisis. We have been given no reason to reverse the previous decision by the parties before this Court, and so we will adhere to our previous decisions.[2] Any law that places an undue burden on a woman’s right to choose is void.
In Casey, we squarely held that a Pennsylvania law requiring the consent of the father was an undue burden on a woman’s right to terminate a pregnancy before fetal viability. Casey, supra at 898. In that case, the unconstitutional section was limited to only married couples, and required women to consult with their spouse before having an abortion. Id. Other parts of the law, such as the informed consent requirement for minors, were upheld. Id. And future cases dealt with abortion procedures that generally apply following the first trimester. See Gonzales v. Carhart, 550, U.S. 124 (2007). The regulation of abortion in the late stages of pregnancy may justify greater state involvement, and the earlier the regulation occurs in the pregnancy the more scrutiny we will apply to the regulation.
III. Discussion
We answer only the narrow question before us: whether the Sacagawea law withstands constitutional scrutiny. Relevant to our decision are three provisions within the challenged law: (1) the requirement of paternal consent; (2) the burial requirement; and (3) the heartbeat provision. These provisions apply at all stages in the pregnancy, and so we will apply greater scrutiny to the regulations.
The first undue burden is the requirement of paternal consent. The law provides no exceptions, and so the plain meaning of the law is that any woman must always receive the consent of the biological father prior to an abortion. The implications of this law are disastrous. If a woman is raped, for example, she will be forced to carry the fetus to term if she is unable to receive the consent of her rapist. In case this need emphasized again: the law at issue requires a woman to ask her rapist for permission to abort the fetus. There is no exception in the law and there is no timeline. It applies at all points during the pregnancy. And ultimately, if a woman is unable to find the father, she will also be out of luck. Or if the father is dead, she must give birth.
Why? There is no logical reason to justify such a requirement. In Casey, we held that paternal consent, even when limited to married couples, was an unconstitutional burden. Therefore, we have no hesitation in holding that this section of the Sacagawea law is clearly and palpably void under the constitution.
The second undue burden imposed by this law is the burial requirement. Although not as obviously burdensome this requirement is just as pervasive. The law provides no funding for the service. The plain meaning of the language is that abortion facilities must provide a “burial service” for every aborted fetus. The Dissent believes that this provision serves to protect public health by preventing “corpses [from] rotting away in dumpsters.”
The Dissent is mistaken. We are unfortunately not given any definitions to guide our interpretation although we need none to understand the true and insidious purpose of this requirement: to force abortion facilities to shut down because of increased costs. The law does not require that fetuses be disposed safely, it requires a burial service. It does not require that they simply be buried, otherwise it would only require a “burial.” The legislature must have had some intended meaning behind “service.” A service that is related to a burial seems to connote some kind of ceremonial aspect to the burial. Regardless, the law clearly requires something more than just a burial. And that cost will either be placed upon women or the facility. Either result would place an undue burden on a woman’s right to terminate her pregnancy, and is accordingly held void.
The final undue burden imposed by this law is the heartbeat provision. The question surrounding fetal heartbeat provisions is an issue of first impression for this Court. We must first interpret the requirement in the Sacagawea law. It declares that a doctor must attempt to find a fetal heartbeat prior to an abortion. This provision applies even if the pregnancy is in its first week. And once the heartbeat is found a recording must be given to the mother. Why? The purpose of the requirement is to disincentive abortion. To make it so difficult for the woman to terminate her pregnancy that she is unable to do so. In a better light, the provision may be an attempt to demonstrate the gravity of the choice to the mother. It matters not. This law would force a woman who has made an impossibly difficult decision to accept the recorded heartbeat of her soon aborted fetus. Alternatively, it may dissuade her from terminating the pregnancy altogether by using psychological coercion. This constitutes an undue burden on a woman’s right to privacy under the Constitution. It is held void.[3]
This law would dramatically impact survivors of sexual assault. After the initial weeks of emotional turmoil and suffering in the face of such an inhumane act, the victim may receive sickening news: she is pregnant. Pregnant with the child of her assailant. Nauseated victims may seek medical attention to terminate the pregnancy. This law would first require victims to ask their rapist for permission to terminate a pregnancy. And even if they miraculously get consent from their rapist, they will then be forced to wait in the reception area knowing what is to come. They will be escorted into the procedure room and undergo one of the most private, intimate, and difficult procedures anyone can imagine. The doctor will then find the heartbeat of the fetus, record it, and force the victim to take the recording of the soon aborted fetus. After the procedure, the facility must then hold a funeral.[4]
This law provides no exceptions for rape or the mother’s health, and fails to strike the constitutional balance between the state’s interest in regulation and a woman’s right to privacy. The law intrudes upon an incredibly private and emotional realm of human experience. It does so unconstitutionally because this law is far more than a minor burden on a woman’s right to privacy. It is, on its face, constitutionally devoid of justification, and the three provisions analyzed above are held unconstitutional.
IV. Severability
The State of Sacagawea has declared in the law that “if any [section] should be struck down in a court of law the others shall remain in full force.” We disagree.
A severability clause does not guide our determination of severability. In Re: Public Law B113 (Conversion Therapy Prevention Act of 2015), 100 M.S. Ct. 118 (2016). This law included four substantive provisions, three of which are void under the Constitution. The remainder of the law cannot be severed from the unconstitutional provisions as they were enacted as a comprehensive law in our estimation, and therefore the entire law must fall. If the states wish to adopt such regulations they must do so without placing an unconstitutional burden on women.
V. Conclusion
We hold that the law before this Court is void as it places an undue burden on a woman’s right to privacy under the Fourteenth Amendment. The divisiveness of the issue should not diminish the clarity of the law. This case is not a close call or a hard decision, for the imposition the law at issue places on liberty is massive. There is, of course, no explicit text in the Constitution protecting a right to terminate a pregnancy. But our founding document protects the liberty and privacy of the people it governs, and as such it protects abortion, one of the most intimate issues any person can ever face.
The law is held void entirely.
It is so ordered.
Justice BSDDC concurring, joined by AdmiralJones42 and Notevenalongname, JJ.
I write separately only to explain why I have joined the majority’s opinion today. I remain skeptical of substantive due process. This law, however, clearly falls within the scope of our previous cases. There was no reason to abandon those precedents presented to the Court. As such, stare decisis dictates the results of this case. Our case law establishes that no law may place an undue burden on abortion. This law clearly placed an undue burden on abortion. I can see no reason why a woman should have to ask her rapist for permission to terminate her pregnancy. Nor should she have to beg the father for permission to terminate when her very life hangs in the balance. As such, I’m of the opinion that our case law governs.
If reason had been given to revisit our precedents I would be more willing to review the case law. At this time, however, I see no reason to muddy the constitutional waters that the Court “wades into” today.
Justice Notevenalongname concurring in part and dissenting in part.
I concur in the Court’s conclusion that the challenged sections of the Sacagawea law impose an undue burden on abortion, and join Justices BSDDC and AdmiralJones42 in their concurrence. However, I disagree with the majority’s decision to invalidate the fetal heartbeat provision (section 3 of the Sacagawea law), and with its holding that the invalidated sections are not severable from the remainder of the act.
The fetal heartbeat provision was never briefed in the case before us, and whether it is proper to pass judgment on it is not clear at all. Expanding the scope of an existing case sua sponte is a dangerous power, and not a decision that should be taken lightly: “The Court should only exercise such a discretion when, in the interests of justice, an argument is fundamentally intertwined with the nature of arguments presented to the Court or otherwise concerning a foundational issue to the questions presented before the Court.” In re. Embryonic Personhood (West. 2017). Our decision on the fetal heartbeat provision does not impact our analysis of the remaining law. It therefore cannot be “fundamentally intertwined” or a “foundational issue” to the case at hand, and we should abstain from ruling on this issue.[5]
The majority correctly recognizes that we do not look to severability clauses in legislation when determining severability. They are mere indicators of the legislature’s intent. In re. Public Law B. 113 (Conversion Therapy Prevention Act of 2015), 100 M.S. Ct. 118 (2016). It relies on that holding, however, to ignore the severability clause present in order to strike down the law in its entirety. The majority’s argument boils down to the claim that the individual sections are not severable because they were “enacted as a comprehensive law.” Ante. Of course, it is nonsensical to believe that sections are not seperable merely because they were enacted in the same package of (omnibus) legislation, and we have rejected this argument in the past. See, for example, Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) (“The standard for determining the severability of an unconstitutional provision in a federal statute is that, unless it is evident that Congress would not have enacted those provisions which are within its power independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”). There is no reason to believe that the Sacagawea legislature would not have enacted what little remains of the law (the “religious figure” provision of section 5) without the sections invalidated today. Section 5 does not rely on any of the three sections that the majority struck down today, and can fulfill its intended purpose without them. “If a law or statute can function as Congress intended it to even after the illegal portions have been removed, then the remaining law or statute should stand as such.” In re. Public Law B. 113, supra.
I respectfully concur in part and dissent in part.
Justice MoralLesson, dissenting.
I. There is No Constitutional Right to Abortion
“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 these are Life, Liberty and the pursuit of Happiness.” This is the most recognizable phrase from the Declaration of Independence and the founding creed of the United States of America. It is no mere coincidence that the right to life is first on the list of unalienable rights — for without it, no other right can be exercised. Thus, it is most unfortunate that this Court continues to delude itself into believing there is a right to abortion under the Constitution of the United States — that the most vulnerable among us deserve no right to life, even when our legislatures act to protect it.
Let me be the first to say: there is no constitutional right to an abortion. I only wish my brothers would recognize this obvious truth and heed the advice of our late brother, Justice Antonin Scalia. “We [the Court] should get out of this area [abortion], where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” Planned Parenthood v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., concurring in part and dissenting in part).
This Court alleges the right to an abortion can be found in the Due Process Clause of the Fourteenth Amendment. Casey, 505 U.S. at 846; Roe v. Wade, 410 U.S. 113, 164–68 (1973). It is true that substantive due process is a doctrine well-recognized by this Court. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925) (where this Court held parents have a right to determine how to educate their children); Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923) (where this Court held parents have a right to teach their children any language). Indeed, “[t]he guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.’” Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).
In Roe and Casey, this Court mistakenly believed substantive due process included the right to an abortion. However, for a right to be protected under substantive due process, it must be so rooted in the traditions and conscience of our people as to be ranked as “fundamental.” See, e.g., Palko v. Connecticut, 302 U.S. 319, 325 (1937); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); Hebert v. Louisiana, 272 U.S. 312, 316 (1926); Meyer, 262 U.S. at 401. In Meyer, this Court explained fundamental rights for the purposes of substantive due process as “[the] freedom from bodily restraint[, and] . . . the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. at 399. Thus, to determine if abortion is a fundamental right protected by the Due Process Clause, we must look to our common-law history.
For more than 800 years prior to Roe, abortion was a crime at common law, and there are countless documented prosecutions and convictions for abortion. See, e.g., R. v. Cokkes (1415), 7 Calendar of Inquisitions Misc. (Ch.) Pres’d in the Pub. Rec. Off. 1399–1422, at 296 (no. 523) (1968); R. v. Portere (K.B. 1400), The Shropshire Peace Role 1400–1414, at 57–58 (no. 24) (1959); R. v. Houdydoudy (Coroner’s Inquest 1326), Calendar of Coroner’s Rolls of the City of London A.D. 1300–1378, at 166 (1913); R. v. Haule, JUST 1/547A, m.20d (London Eyre 1321); R. v. Botevylayn (K.B. 1305), Wiltshire Gaol Delivery & Trailbaston Trials 1275–1306, at 105, 126, 131 (nos. 576, 800, 854) (1978); R. v. Scot, JUST 1/547A, m.22 (1291, ms. dated 1321); R. v. Dada, JUST 1/547A, m.19d (1290, ms. dated 1321); Boleheved’s Appeal, JUST 1/112, m.9d (Cornwall Eyre 1284); R. v. Code, JUST 1/789, m.1 (Hampshire Eyre 1281); R. v. le Petiprestre, The London Eyre of 1244, at 48 (no. 116) (London Rec. Soc’y 1970); Sauter’s Appeal, Pleas of the Crown for Gloucester Cnty. 1221, at 16 (no. 69) (1884); Sibil’s Appeal (1203), 1 Selden Soc’y 32 (no. 73) (1887); Agnes’s Appeal (1200), 1 Selden Soc’y, supra at 39 (no. 82). Thus, it is fair to say that this Court was simply wrong when it said, “it now appear[s] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.” Roe, 410 U.S. at 136. Now, while Roe correctly notes the common-law crime of abortion was only against quickened unborn children, 410 U.S. at 133, this was simply because people of the 18th century and prior had no other way of being sure of a pregnancy. Brian Young, A Brief Survey of US Abortion Law Before the 1973 Decision. Indeed, as science improved and jurists and lawmakers became aware that life began when a sperm fertilized an ovum, the quickening requirement was abandoned in every state. Id. In 1859, the American Medical Association, criticizing the few remaining states with quickening requirements in criminal abortion statutes or common law precedents and encouraging state legislatures to completely outlaw abortion, noted:
The . . . reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.
12 Trans. of the Am. Med. Assn. 75–76 (1859).
As late as 1967, abortion was still outlawed in every state: in 49 of states it was a felony (even considered a homicide virtually all of them) and in New Jersey it was a high misdemeanor. Young, supra. Even immediately prior to Roe, abortion was statutorily outlawed in 46 of the 50 states (1 with an exception for rape, 2 with an exception for danger to the mother’s health, 13 with exceptions for the life of the mother and rape and incest, and 30 with no exceptions). Id. The year prior to Roe, Michigan voters had rejected decriminalizing abortion with 63% of the vote, and North Dakota voters rejected it with 78% of the vote. Id. Even today, 30 states and the federal government recognize crimes against unborn children — including homicide in most of them (though each has had to carve out an anomalous and inconsistent exception for when the homicide is perpetrated by the mother or with her consent). See, e.g., 18 U.S.C. § 1841; 10 U.S.C. § 919a. Thus, it is obvious that a right to abortion is not so rooted in the traditions and conscience of our people as to be ranked as fundamental.
It is more than just history of the common law and statutes in this country that makes plain there is no constitutional right to abortion; the intent and purpose of both the drafters and ratifiers of the Fourteenth Amendment bear witness to it as well. The Fourteenth Amendment was adopted in 1868: during the 19th century proliferation of laws outlawing abortion under all circumstances and recognizing human life as beginning at conception. Why would state legislatures that were outlawing abortion entirely simultaneously ratify an amendment with the intent to nullify their work and provide for a constitutional right to abortion? No reasonable person would do so or believe they did. Moreover, as this Court has recognized numerous times, the purpose of the Fourteenth Amendment was to provide civil rights to newly freed slaves and general racial equality — not to create a right to abortion or even a more general right to privacy. See, e.g., Loving v. Virginia, 388 U.S. 1, 10 (1967); Brown v. Bd. of Educ., 347 U.S. 483, 491 (1954); Slaughter-House Cases, 83 U.S. 36, 71 (1872).
Thus, it is clear there has never been a fundamental right to abortion in this country — at least not until this Court abandoned the text, history, intent, and purpose of the Fourteenth Amendment and capriciously decided to stomp on the laws of all 50 states and over 800 years of common law precedent to impose its will — masquerading under guise of constitutional law — that abortion be legal. Later, this Court defended its decision to legalize abortion by saying that a case gains extra-precedential force “whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Casey, 505 U.S. at 867. Uncoincidentally, this echoes the thought-process of Chief Justice Roger B. Taney when he handed down the infamous case of Scott v. Sandford, 60 U.S. 393 (1857). In both Dred Scott and Casey, the Court believed it had ended a national controversy when it really just enflamed it by preventing the political processes from doing their job. In both, this Court denied the personhood of a large class of people — in Dred Scott, this Court denied personhood to individuals of African descent; under Casey, this Court has denied personhood to the unborn children of the human family. Because of this, I have little doubt Roe and Casey will one day be remembered the same way as Dred Scott — as cases of unspeakable injustice. As such, I cannot stand with the Majority in denying the personhood of unborn children or in their usurpation of the legislative power by standing on the faulty precedents of Roe, Casey, and their progeny. Rather, I call on my brothers on this Court to overturn Roe, Casey, and the disastrous decision made here today — to return lawmaking to the legislatures and allow the people’s representatives to protect the vulnerable unborn children of our country.[6]
II. Section 2 is Constitutional
Section 2 of the statute in question reads, “Any facility that performs abortions must offer a burial service for the murdered child.” Even believing that the Due Process Clause of the Fourteenth Amendment establishes a right to abortion (though it clearly does not), Section 2 of the Act does not implicate the alleged right whatsoever for it does nothing to prevent or inhibit abortion. It is merely a measure of public health. In Williamson v. Lee Optical, 348 U.S. 483 (1955), the Oklahoma Legislature passed a law that forbade an optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. This Court held that even though the requirement “may exact a needless, wasteful requirement in many cases,” it would survive the rational basis test. Id. at 487. This is because “it is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Id. at 487–88. Here, the State has shown that the law could be seen as lessening the likelihood of disease by preventing corpses rotting away in dumpsters. Whether this law is effective towards the end of preventing disease does not matter; it has a rational basis. Id. Moreover, whether the law is wholly consistent does not matter for “the law need not be in every respect logically consistent with its aims to be constitutional.” Id. The requirement may be expensive, but whether it is unnecessary is not within our purview to decide; it is a matter for the legislature.
III. Section 4 is Constitutional
Section 4 of the statute in question reads, “Before the abortion of a child the father must give his consent to have his child murdered.” Because there is no constitutional right to abortion, the first two arguments put forward by Plaintiff need not be considered.[7] Therefore, I will consider Plaintiff’s third contention with the statute: whether the rule of lenity should apply.
The simple existence of some statutory ambiguity is not sufficient to warrant application of the rule of lenity for most statutes are ambiguous to some degree. Muscarello v. United States, 524 U.S. 125, 138 (1998). To invoke the rule, we must conclude that there is a “grievous ambiguity or uncertainty in the statute.” Id. at 139; Staples v. United States, 511 U.S. 600, 619 (1994); Chapman v. United States, 500 U.S. 453, 463 (1991). Certainly, there is no ambiguity here. Numerous state and federal statutes employ the word “consent” without any definition or further qualification. See, e.g., 10 U.S. Code § 920(a)(5); MICH. COMP. LAWS ANN. § 750.520a (West 2016); 18 PA. Code § 3121(a)(5) (West 2016). Thus, to hold “consent” as unconstitutionally vague would be to invalidate tens of thousands of state and federal statutes — some that have stood for several centuries. This would be an absurd result, and one that should not be accepted nor adopted by this Court.
IV. We Should Not Consider the Constitutionality of Section 5
Longstanding traditions of judicial restraint should prevent us from raising an issue sua sponte unless it is to announce a lack of subject matter jurisdiction or a similar dispositive procedural issue. Here, Plaintiff failed to raise the issue in his brief but merely discussed the issue in oral arguments. Therefore, we should not consider the constitutionality of Section 5.
V. The Remainder of the Statute Survives Even if Sections 2 and 4 Were Unconstitutional
If a law or statute can function as Congress intended it to even after the illegal portions have been removed, then the remaining law or statute should stand as such, regardless of the presence or lack thereof of a “severability clause.” In Re: Public Law B113 (Conversion Therapy Prevention Act of 2015), 100 M.S. Ct. 118 (2016). Here, it is unequivocal that even if Sections 2 and 4 of the statute are unconstitutional (though they are not) that the remainder of the statute should survive because heartbeat detection and the option for a mother to have religious rites performed for her deceased child are in no way dependent on the burial or consent provisions.
For the foregoing reasons, I respectfully dissent.
[1] Justice WaywardWit took no part in the resolution of this case.
[2] The Dissent charges us with raising issues beyond the scope of the parties arguments. At the same time the Dissent argues to overrule nearly fifty years of case law without either party having ever once asking us to do so. Even if the standard to overrule precedent is met in this case — it is not — the Court will not do so unilaterally. We will continue to apply our precedent until we are given a reason to overrule such cases.
[3] We do not address more specific fetal heartbeat provisions previously enacted by the many states. We hold only that a law which applies at all times during a pregnancy requiring a fetal heartbeat be provided to the mother is unconstitutional.
[4] The dissent once again misses the mark when it says that we rely on the most egregious situations to justify our decision. The law requires women to ask their rapists permission to terminate a pregnancy. There is no exception, and this hypothetical situation will occur. That result is far more “egregious” than any opinion penned by this Court. Dramatic examples demonstrate the effect of the law. Extreme examples, however, are not integral to our conclusion that the law imposes an undue burden on a woman’s right to privacy. In our estimation, the dissent focuses on the larger debate around abortion, while losing track of this specific law.
[5] Upon questioning from the bench, this provision briefly became the focus of oral argument, as did section 5 (the “religious figure” provision). When we encounter questions that were not addressed in the briefs of either side, and that must be answered to resolve a case, we generally order rebriefing and reargument. See generally New Jersey v. T.L.O., 469 U.S. 325, 332 (1985); Brown v. Board of Education, 347 U.S. 483, 488 (1954). Unless rebriefing and reargument were to take place, I believe that we should not pass judgment on sections of the law that were not challenged in the first place.
[6] The Majority resists calls to overturn Roe and Casey by running to stare decisis over and over again. Interestingly, in Casey this Court said that precedent should be overturned when it has become unworkable, when society does not rely on it, and when the facts deciding the case have changed. Here, “undue burden” is an incredibly ambiguous standard that has yet to be truly illuminated even with decades of precedent, society does not and has never relied on the “right” to an abortion (after all, little adjustment would have to occur in anyone’s life where the “right” is removed — adoption is an option), and it is clear the underlying factual assumptions of Roe were wrong — abortion was a crime at common law and we know when life begins: at fertilization. Thus, by the Court’s own standards, Casey and Roe should be overturned.
[7] It is worth pointing out that the Majority constantly speaks about issues of rape in this case and specifically on this point. This is the Majority showing it cannot justify its egregious decision today except by relying on poorly-decided precedent and emotionally charged situations that are the extreme minority situation and not the norm. If such emotionally charged arguments were truly animating the Majority’s decision today, then their decision would be far more narrow than it actually is.
