Greeting honorable justices,
The brief will first focus on the issue of precedent. The Supreme Court has addressed the issue of reproductive rights before in the case Politics Fan v the South.
In addition to covering personal privacy, this right also has some extension that covers marriage, procreation, contraception, as well as family planning; this is evident in cases such as Loving v. Virginia and Griswold v. Connecticut, both of which were decided within the common law jurisdiction of the United States based upon Constitutional language in their Bill of Rights that is verbatim identical to our own Article I.
The court ruled that a right to privacy not only exists but it extends to other types of privacy other than simply personal privacy, including family planning. It is the view of the petitioner that the issue of abortion is one of family planning, and thus under this decision the right to elective abortion should be protected.
The court also noted in this case that real life precedent does apply due to the principle of common law:
Again, the intention of our Constitution’s authors is clear: inclusion of identical language means our own judiciary can look to its real-world United States counterpart for guidance. This does not mean real-world precedent applies to our nation in any meaningful way, of course, but it is a natural element of common law judicial systems that we can look to other common law systems for guidance whenever no controlling precedent exists.
Therefore, it can be assumed that the real-life cases which provided much of the reasoning behind the extension of the right to privacy to abortion, one of which is
Roe v Wade also apply as valid precedent, due to the principle of common law.
In the majority opinion in Roe v Wade, Justice Harry Blackmun wrote:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
It is the view of the petitioner that current law in Lincoln is overly restrictive and thus may possibly include the implementation of detriment by the State, in this case the Lincoln government. For instance, it may be noted that under current Lincoln law, abortion is only legal if "the patient is within twenty weeks [5 months] from the commencement of pregnancy" or "the abortion is necessary to protect the patient's life or physical
health." Current Lincoln law removed a provision that would allow abortions in the case of "an absence of fetal viability." It is the view of the petitioner that forcing women to birth a nonviable fetus may indeed provide distress and psychological harm to the woman.
Justice Blackmun also wrote that:
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
The second trimester lasts from 13 weeks to 28 weeks, it is the view of the petitioner that from 20 weeks to 28 weeks, the government of Lincoln is not regulating abortion "in ways that are reasonably related to maternal health." While the government does indeed include provisions for physical health, it makes no mentions of mental health, and as discussed earlier carrying a nonviable fetus to term could indeed prove traumatic for the mother.
Additionally, current Lincoln law also includes the following restriction on medical professionals: "(b) The Punishment for performing or facilitating an abortion outside of the circumstances prescribed in (a) shall be a prison sentence of at least 6 months, but no more than 3 years, for the doctor, nurse, or other medical practitioner(s) performing or facilitating the illegal abortion. However, nothing within this section shall be construed to allow any punishment of the woman receiving the illegal abortion, nor shall this section permit punishment of anyone employed by the abortion facility as a receptionist, technical assistant, janitor, or any similar position provided they are not present in the room where the abortion is occurring while it is occurring." It is entirely unclear to the petitioner how the provision for jailing doctors is at all germane to maternal health.
It should be noted that the Atlasian Supreme Court in Politics Fan v South, seemed to agree with Justice Blackmun, with Justice Bacon King writing for the court that:
The limitations the state can place upon abortion access, must be tailored to only cover such legitimate government purposes without being overly broad.
Yet again, it is unclear to the petitioner what legitimate government purposes are served by punishing doctors.
Thus, when we consider both Atlasian precedent on the issue as well as the real life cases that additionally served as precedent, the view of the petitioner is that the Lincoln Pain-Capable Abortion Prohibition and Born Alive Survivor Protection Act simply does not survive the test of judicial precedence.
Next, we will look at the issue of constitutionality:
As already mentioned, the Atlasian Supreme Court has affirmed a right to privacy, and has ruled, consistent with the pre-reset case of Roe v Wade, which serves as common law precedent, that said right does extend to abortion.
"Section 5. No person shall be deprived of life, liberty, or property without due process of law."
"Section 14. The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted."
The court has previously ruled that Sections 5 and 14 establish the right to privacy as a right entitled to all citizens of the Atlasian Republic. While this case is based on Lincoln law and not federal law, it can be understood that the citizens of Lincoln also enjoy these rights by virtue of being Atlasian citizens, this sentiment is also supported by the constitutions of both Lincoln and Atlasia.
Section 1. All persons born or naturalized in the Republic of Atlasia, and subject to the jurisdiction thereof, are citizens of the Republic of Atlasia and of the Region in which they reside, and shall in all cases be afforded equal protection under the law.
1. All persons born or naturalized in the Republic of Atlasia and being residents of one of the states of this region, are citizens of Lincoln, with all the rights, privileges, and responsibilities of the same. No citizen shall be denied equal protection under the law.
Therefore, it can be assumed that the citizens of Lincoln also enjoy this right to privacy and by extension, the right to elective abortion. It is the view of the petitioner that this right is currently being violated by the Lincoln government due to its current abortion law.
I thank the court for their time.
