The viability line has no constitutional or principled basis and could just as meaningfully be drawn at 14 weeks into pregnancy. At minimum, the brief argued, the court should reject a rule based on viability.
“Saying that a state’s interest becomes compelling at 15 weeks’ gestation is just as plausible as saying that it becomes compelling at viability,” said the brief, arguing that such “line-drawing” is legislative task and another sign that abortion decisions should not rely on the courts.
“Abortion—as both a jurisprudential and policy matter—is as divisive and unsettled as ever,” said the brief. “Protecting unborn life and women’s health are as compelling as ‘preserving public confidence in the integrity of the judiciary’— an interest this Court has found compelling,” it added.
States should be able to decide on disputed questions, such as to what extent either continued pregnancy or abortion may create health risks for the mother. Similarly, the states should be able to account for advances in knowledge of when the unborn child becomes sensitive to pain.
“This court need not resolve who is right on fetal pain. It need only recognize that knowledge changes and that the constitution does not bind States to a long-outdated view of the fact,” the brief said.
The reasoning of the pro-abortion precedents did not take into account policy changes that better allow women to have both careers and families or the provision of “safe havens” to shelter newborn children without penalty. These precedents were based in outdated ideas about contraception effectiveness and access.
Any claim that preserving Roe and abortion access is critical to women’s advancement is a “demeaning view of women.” The claim “boils down to the view that millions of women have a meaningful life only because 50 years ago seven men in Roe saved them from despair—and that women’s success comes at the cost of ending innumerable human lives,” the brief argued.
“Women’s extensive political participation and share of the population ensure that they strongly influence public policy—and would do so without a judicially managed right to abortion,” the brief continued.
“This court has before it the strongest arguments for and against overruling— from the parties, the United States, and 130 amicus briefs exploring every relevant issue,” the brief said. “The fundamental question at issue here will keep returning until this court addresses it. This is the case to confront— and reject—Roe and Casey.”
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