Boyden Gray & Associates filed an amicus brief today in the Supreme Court on behalf of Reason for Life in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, which will consider whether “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” The brief is available here.

As we argue in the brief, the analysis in previous cases like Roe v. Wade and Planned Parenthood v. Casey is not only untethered from the Constitution’s text and history, but also increasingly fails on its own terms because many of the societal justifications it gave for creating a right to abortion have changed or been eliminated entirely since 1973. The advent of safe-haven laws and widespread acceptance of out-of-wedlock pregnancy have removed much of the burden and stigma that could be faced by single mothers.

Second, the brief argues that Roe and Casey errantly evaluated only the state’s interest in “potential” life instead of “actual” life. But scientific insights over the last decades have shown conclusively that abortion ends an actual and not a potential human life. Thus, in failing to identify the state’s true concern Roe and Casey “failed to balance the competing interests properly.” 

Finally, the brief argues that the viability standard asserted in Roe and modified in subsequent cases is unworkable and arbitrary. The line of viability is constantly shifting and assessments about whether a unborn baby is likely to be able to live outside of the womb are notoriously impresise, depending on inaccurate tests of fetal age and the judgment of the specific physician assessing the baby.  

The brief thus urges the Court to overrule Roe and Casey and reverse the judgment below.

Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.

Reason for Life is a not-for-profit, Christian ministry that exists to advance the right to life for unborn children and cultivate a culture that recognizes those children as precious gifts from God who deserve protection.