NRL News

The massive growth of Pregnancy Help Organizations have helped make the premises of Roe and Casey outdated, amicus brief argues

by | Aug 17, 2021

By Dave Andrusko

In our attempt to give readers access to a broad swath of amicus brief in support of Mississippi’s Gestational Age Act, we’ve offered overviews of briefs that run the gamut from highly technical legal analyses through the [distorted and misrepresented] history of abortion to a particularly insightful feminist critique of the “right” to abortion.

As you recall, the Supreme Court has agreed to hear Dobbs v. Jackson Women’s Health Organization this fall. The state of Mississippi will defend its ban on abortions after 15 weeks of pregnancy with very limited exceptions. 

Judge Carlton W. Reeves of the Federal District Court in Jackson blocked the law in 2018.  Subsequently Judge Reeves’s decision was upheld by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, although (as NRL News Today explained) very reluctantly by one of the three judges. Mississippi then successfully appealed to the Supreme Court.

Today we look at Heartbeat International’s helpful contribution. We read “Heartbeat serves approximately 2,850 pregnancy help centers, maternity homes, and nonprofit adoption agencies (collectively, ‘pregnancy help organizations’) in over 65 countries, including approximately 1,722 in the United States—making Heartbeat the world’s largest such affiliate network.”

Let’s look at Heartbeat International’s unique contribution to this case. 

For one thing—one very important thing– Heartbeat politely skewers justices whose ongoing support of the 1973  Roe decision (and Casey, decided in 1992) rests on faulty and/or outdated premises. Today, in other words, is not 1973 or 1992. *

We begin with a lengthy opening quote from the amicus and then we’ll track Heartbeat’s own elaboration.

Heartbeat is well positioned to address the stare decisis issues in this case because its work, and the work of the organizations it supports, refute the erroneous assumption underlying the plurality’s decision in Casey, namely, that when a woman finds herself unexpectedly pregnant, her only or best feasible option is abortion. In discussing whether “reliance” considerations warranted applying stare decisis, the Casey plurality went so far as to state: “[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Casey.

As shown below, however correct or incorrect that supposition may have been in 1992, it is demonstrably incorrect in 2021 given changes in society—including the growth and expansion of the pregnancy help network, advances in technology, and evolving social mores. Every day across the Nation, pregnancy help organizations serve women facing unintended pregnancies so that abortion is not their only option and giving birth does not mean sacrificing their educations, careers, or ability to “participate equally in the economic and social life of the Nation.” The proliferation and effectiveness of pregnancy help organizations, together with the societal changes of the last three decades, moot the reliance concerns postulated in Casey and demonstrate that the Court should not apply stare decisis in this case.

Ok. Here are five highlights.

#1. “In 1992, this Court endorsed the now antiquated idea that pregnancy inhibits women from meaningfully participating in society. The Casey plurality relied on an incorrect and outdated dichotomy that women facing unexpected pregnancies can either fully participate in society or become mothers, but not both.”

Just as abortion supporters are flailing about vainly attempting to find a more secure foundation for the “right” to abortion, sooner or later they will have to stop relying on outdated stereotypes and admit “technological and societal advances as well as changing social mores concerning children born out of wedlock” have rendered them obsolete.

Will they readily? Of course not. At the core of the pro-abortion argument is that without ready access to abortion—at every stage of pregnancy paid for by taxpayer dollars—women will never be able to succeed. Ergo, if you don’t support abortion, you supposedly don’t want women to succeed. 

That was lame in 1973, it is even more of a slur in 2021.

#2. “One critical societal development,” the amicus continues, “is the proliferation of pregnancy help organizations. Today, there are more than 2,700 pregnancy centers in the United States, as well as maternity homes, adoption agencies, and other organizations that educate, equip, and empower women to thrive during and after pregnancy.”

It is easy to see why Planned Parenthood and its legion of media enablers so hate pregnancy help organizations [PHO]. They offer a choice, but to “pro-choicers,” there is only one choice: death for 900,000 unborn babies each year in the United States alone. PHOs genuinely empower women, another reason for PPFA to despise—and fear—them.

#3. The enormous impact of technology, particularly the Internet:

The growth of pregnancy help organizations has coincided with and been shaped by significant technological advances and changing societal norms, which further moot Casey’s “reliance” [on abortion] rationale. With respect to changes in technology, in 1992, an unexpected pregnancy might have necessitated dropping out of school or leaving the workforce. Today, students can earn undergraduate and graduate degrees—including ABA accredited law degrees—almost without leaving their living rooms, which has simplified life for countless single mothers. …

Much of this has been made possible by the largest technological development since the industrial revolution: the internet, which was inaccessible to ordinary people in 1992.

#4. Extraordinary society changes mean what the Casey plurality chose to avoid (or pretended to avoid) must now be confronted:

Because the Casey plurality determined that stare decisis sufficed to uphold the central holding of Roe, the plurality concluded: “We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions.”  Heartbeat respectfully submits that, with the dramatic technological developments and societal changes since Casey, stare decisis no longer should be a significant issue, and the Court should squarely decide the question presented. Heartbeat urges the Court to overturn Roe and Casey, to apply rational basis review to abortion restrictions as urged by Petitioners, and to hold that States have interests sufficient to protect pre-viability life. 

#5. Coming full circle, the amicus quotes a key passage from the plurality in the Casey decision: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 

“This was a dubious assumption,” the amicus argues, quoting from  Chief Justice Rehnquist who concurred in the judgment in part and dissented in part: 

The joint opinion [invokes] what can only be described as an unconventional—and unconvincing—notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to “two decades of economic and social developments” that would be undercut if the error of Roe were recognized. The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their “places in society” in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men. Casey. But whatever the merits of the Casey plurality’s assumption in 1992, the assumption is demonstrably incorrect today. 

Indeed, “As shown below,” the amicus argues, “no longer is it true, if it ever was, that abortion is necessary to allow women to lead productive and fulfilling lives and to participate equally in society.”

I’ve only touched on a few key points, and I would urge you to read Heartbeat’s brief in its entirety.

*Defined in the most simple terms, stare decisis refers to courts generally adhering to precedents.