Withers public international law team files pro bono amici brief with United States Supreme Court in landmark case challenging restrictions to reproductive health and abortion access

Article Experience

Withers partnered with United Nations human rights experts (the “U.N. Mandate Holders”) to file an amici curiae brief with the United States Supreme Court (the “Supreme Court”) on 20 September 2021 in support of the Respondents in Dobbs v. Jackson Women’s Health Organization.

Jackson Women’s Health Organization – the only licensed abortion provider in Mississippi – and one of its doctors, Dr Sacheen Carr-Ellis (collectively the “Respondents”) are challenging the enforcement of 2018 Mississippi House Bill 1510, named the Gestational Age Act (the “Mississippi Abortion Law”). The Mississippi Abortion Law bans all abortions after the 15 weeks of pregnancy except in cases of life-threatening emergencies or severe fetal abnormalities.

On the day that the state legislature passed the Mississippi Abortion Law in 2018, the Respondents in this case filed suit with the U.S. District Court for the Southern District of Mississippi (the “Federal District Court”), challenging the Law’s constitutionality and requesting an emergency temporary restraining order. The Federal District Court upheld the Respondents’ challenge holding that Supreme Court precedents prevent states from banning abortions before the fetus becomes viable (i.e. at around 24 weeks of pregnancy). The U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) upheld this decision.

The State Health Officer of the Mississippi Department of Health and the Executive Director of the Mississippi State Board of Medical Licensure (collectively the “Petitioners”) filed a writ of certiorari to the Fifth Circuit’s decision. The Supreme Court granted the writ, certifying the following question: whether all pre-viability prohibitions on abortion are unconstitutional.

The Petitioners filed their merits brief on 22 July 2021 and asked the Supreme Court to overrule landmark cases Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). These cases established a woman’s constitutional right to abortion without unduly restrictive state regulation, and further defined that a regulation is unconstitutional if it has the purpose or effect of imposing an “undue burden” on a woman seeking an abortion before the fetus attains viability.

If the Petitioners succeed, many U.S. states will implement heavy-handed restrictions or outright bans on abortion access. Such restrictions will cause irreparable damage to women’s and girls’ rights, make individual state laws irreconcilable with international human rights law, and violate the United States’ obligations under binding human rights treaties.

Working with the U.N. Mandate Holders, Withers filed an amici curiae brief in support of the Respondents’ arguments. We argue that Mississippi’s prohibition on abortion access breaches fundamental human rights including the right to equality and freedom from non-discrimination, the right to privacy, the right to life, the right to health, and the right to be free from torture and cruel, inhuman or degrading treatment. These human rights treaty obligations encompass the reproductive rights of women and girls, including safe and legal abortion access. We argue further that overturning a half-century of constitutional protection for abortion access would put the United States out of step with the trend towards the liberalization of abortion access around the world and constitute a retrogression in violation of international law. The brief urges the Supreme Court to rule consistently with U.S. obligations under international human rights law and reject the Petitioners’ attempt to restrict abortion access.

Scrutiny of abortion access has intensified in recent years: as well as analysing the application of international legal norms, the Supreme Court’s reliance on precedent will be in the spotlight. In June 2020, Chief Justice John G. Roberts Jr. voted against his conservative colleagues to strike down a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals (seen to be an undue burden on the constitutional right to pre-viability abortion) on the basis of Casey, despite having voted to uphold a largely identical Texas law in 2016. Earlier in September 2021, the Supreme Court’s conservative majority declined a request to block the enforcement of the Texas Heartbeat Act which prohibits abortions once fetal cardiac activity can be detected (as early as six weeks of pregnancy).

The consolidated case is Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. (Docket number 19-1392). The Supreme Court will hear oral arguments on 1 December 2021.

The Withers team is led by Partner Emma Lindsay and includes Senior Associates Jovana Crncevic, Camilla Gambarini, Joseph Gallo, Associates Tyler Goss, and HG Song, Trainee Giverny McAndry, and Paralegals Daniela Dimitriu and Lalindra Sanichar.