INTEREST OF AMICUS CURIAE
Amici curiae respectfully urge this Court to affirm the decision of the Fifth Circuit. Inner Life Fund is a North Carolina non-profit, taxexempt corporation formed on June 22, 2006 to preserve and defend the customs, beliefs, values, and practices of religious faith, as guaranteed by the First Amendment, through education, legal advocacy, and other means. JFF’s founder is James L. Hirsen, professor of law at Trinity Law School and Biola University in Southern California and author of New York Times bestseller, Tales from the Left Coast, and Hollywood Nation. Mr. Hirsen is a frequent media commentator who has taught law school courses on constitutional law. Co-counsel Deborah J. Dewart is the author of Death of a Christian Nation (2010) and holds a degree in theology (M.A.R., Westminster Seminary, Escondido, CA). Institute for Faith and Family (“IFF”) is a North Carolina nonprofit corporation established to preserve and promote faith, family, and freedom by working in various arenas of public policy to protect constitutional liberties, including the right to life. See https://iffnc.com.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Abortion is a medical procedure with a constitutional overlay. This dual status has plagued courts and legislatures for over four decades. When courts emphasize the constitutional aspect and minimize health concerns, public health is at risk. The Court becomes an “ex officio medical board” that invalidates commonsense health regulations—if legislatures even dare to enact them in the first place—and states may neglect their enforcement obligations, resulting in poor quality health care for women. Abortion is the only medical procedure that compels states to fight an uphill battle to enact reasonable health and safety regulations. It is the only medical procedure where regulation requires more than rational basis. And it is only in the abortion context that this Court’s standards for third party standing and facial challenges are suspended.
ARGUMENT I. ABORTION DEFIES NORMAL JUDICIAL STANDARDS IN BOTH THE MEDICAL AND THE CONSTITUTIONAL CONTEXT.
Abortion is the only medical procedure where health and safety regulations must meet a standard higher than rational basis. Whole Woman’s Health v. Hellerstedt thrust this Court back into the role of “ex officio medical board.” In abortion cases, this Court has jettisoned the Salerno standard applicable to facial challenges in every other context. Third party standing rules have been distorted in abortion litigation.
ABORTION IS A MEDICAL PROCEDURE THAT HAS BEEN DECLARED A CONSTITUTIONAL RIGHT, CREATING TENSION IN THE GOVERNMENT’S REGULATORY ROLE. CONSTITUTIONAL RIGHTS AND MEDICAL PROCEDURES ARE ANALOGOUS IN SOME RESPECTS.
Constitutional rights and medical procedures are both subject to reasonable regulation. Even fundamental constitutional rights are subject to reasonable regulation. The practice of medicine is subject to reasonable regulation. The government has no affirmative obligation to ensure access to abortion, either as a medical procedure or a constitutional right. The government is not obligated to finance or ensure access to abortion, even when viewed as a constitutional right. The government is not obligated to fund or guarantee access to abortion or any other medical procedure. The government may express a preference for childbirth over abortion. Access to abortion is subject to factors beyond the government’s control, like any other medical procedure or any constitutional right. Access to abortion depends on the willingness and ability of private parties. Factors beyond state control impact access to abortion.
