PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY 1

JULIA A. OLSON (OR Bar 062230) 

julia@ourchildrenstrust.org

Our Children’s Trust

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com

Gregory Law Group

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

ANDREA K. RODGERS (OR Bar 041029)

andrea@ourchildrenstrust.org

Our Children’s Trust

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through his 

Guardian Tamara Roske-Martinez; et al.,

Plaintiffs,

v.

The UNITED STATES OF AMERICA; et al., 

Defendants.

Case No.: 6:15-cv-01517-AA

PLAINTIFFS’ NOTICE OF

SUPPLEMENTAL AUTHORITY

Dobbs v. Jackson Women’s Health Org., 

142 S. Ct. 2228 (2022)

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Plaintiffs hereby provide notice of supplemental authority of a new opinion from the United 

States Supreme Court issued on June 24, 2022, Dobbs v. Jackson Women’s Health Org., 142 S. 

Ct. 2228 (2022), attached to this Notice, which supports Plaintiffs’ Motion for Leave to File 

Amended Complaint. Doc. 462. 

Dobbs is precedential to this Court’s decision on whether to allow Plaintiffs to proceed to 

trial on their proposed Second Amended Complaint, now pending before the Court on Plaintiffs’

Motion for Leave to Amend, where the core issue presented to this Court is whether or not 

amendment is “futile.” Defendants’ Opp., Doc. 468 at 11; Plaintiffs’ Reply, Doc. 469 at 1. As 

Plaintiffs have previously briefed this Court, the Supreme Court has long held whether declaratory 

judgment (sought here) is a useful remedy, i.e., not futile, in a particular case is a factual inquiry 

vested in the district courts in the first instance. Plaintiffs’ Reply, Doc. 469 at 5-6 (citing 

MedImmune, Inc. v. Genentech, Inc, 549 U.S. 118, 136 (2007)). Dobbs supports a ruling by this 

Court that one of the most vital roles of our federal judiciary is to evaluate and to declare, as these 

youth have requested in their proposed Second Amended Complaint, whether the rights Plaintiffs

claim to be violated are constitutionally protected and what standard of review applies to a claimed 

infringement of those rights. Dobbs also provides a roadmap for this Court to analyze the alleged 

rights in this case and issue declaratory judgment. Finally, while overturning the long-standing 

precedent of Roe v. Wade, Dobbs simultaneously promises that the Supreme Court did nothing to 

undermine the precedent of other implicit liberty rights Plaintiffs have relied on in this case, which 

remain binding constitutional precedent.

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1. Dobbs affirms the judiciary’s vital and ongoing role in analyzing, finding, and 

“un-finding” constitutional rights, which defines the legal rights of citizens vis-àvis their government.

Dobbs holds that the Court’s “sole authority is to exercise ‘judgment’—which is to say, 

the authority to judge what the law means and how it should apply to the case at hand.” 142 S. Ct. 

at 2278. The Court “can only do [its] job, which is to interpret the law, apply longstanding 

principles of stare decisis, and decide this case accordingly.” Id. at 2279. Thus, Dobbs affirms that 

deciding what rights the Constitution confers or does not confer is squarely the province of the 

judiciary. It also makes crystal clear the profundity of declaring or denying constitutional rights in 

an actual case or controversy, in line with Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021), 

which also held declarative remedies “affect[t] the behavior of the defendant towards the plaintiff” 

providing redress under an Article III standing analysis. See Plaintiffs’ Reply, Doc. 469 at 8. Just 

as declaring the right to reproductive choice, namely abortion, constitutionally protected and now

unprotected has affected the lives of countless people and the behavior of government, declaring 

the right to a climate system capable of sustaining human life constitutionally protected or 

unprotected will also have immense consequence in the relationship between these youth and their 

government, as Plaintiffs have alleged in their proposed Second Amended Complaint. See e.g., 

Doc. 514-1, SAC ¶ 30-A.

G. Tucker’s Blackstone Commentaries,

1 relied upon by the Supreme Court in Dobbs,

affirms that:

[J]udges . . . are the depositaries of the laws; the living oracles, who must decide in 

all cases of doubt and who are bound by an oath to decide according to the law of 

the land. Their knowledge of that law is derived from experience and study; from 

the “viginti annorum lucubrationes,” [trans.: the nighttime labors of twenty years] 

1 The Supreme Court leans heavily on the “most important early American edition of Blackstone’s 

Commentaries,” 2 St. George Tucker, from 1803, in conducting its analyses. Dobbs, 142 S. Ct. at 

2251.

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which Fortescue mentions; and from being long personally accustomed to the 

judicial decisions of their predecessors. And indeed these judicial decisions are the 

principal and most authoritative evidence, that can be given, of the existence of 

such a custom as shall form a part of the common law.

2 St. George Tucker 69 (1803). As Plaintiffs argued in their reply brief of this Motion to Amend: 

Defendants contend Plaintiffs have no constitutional rights to personal security, 

family autonomy, life, liberty, property, equal protection, public trust resources, or 

a climate system that sustains life, and Defendants dispute they are infringing those 

rights, which unequivocally make them adversaries of the youth.

Plaintiffs’ Reply, Doc. 469 at 7. Only the Court can resolve this life-threatening controversy and,

according to Dobbs, declare whether or not the rights asserted are constitutionally protected.

2. Dobbs mandates a historical factual inquiry in cases involving finding or “unfinding” constitutional rights

The Supreme Court’s approach in Dobbs supports the duty of this Court to undertake a 

thorough merits-based analysis of these young people’s assertion of rights and infringement 

thereof. In overruling Roe and Casey, the Majority examined whether the Constitution refers to 

abortion, and whether such right is implicitly protected by any constitutional provision, reiterating 

the Glucksberg test that any such right must be “deeply rooted in this Nation’s history and 

tradition” and “implicit in the concept of ordered liberty.” 142 S. Ct. at 2242, citing Washington 

v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted). For instance, the 

Supreme Court refers to “the language of the instrument” as offering a “‘fixed standard’ for 

ascertaining what our founding document means.” 142 S. Ct. at 2244-45, citing 1 J. Story, 

Commentaries on the Constitution of the United States § 399, p. 383 (1833). While Dobbsinvolved 

a right whose specific words, “privacy” and “abortion,” are not in the Constitution, Id. at 2245, in 

Juliana, Plaintiffs claim a right to a “climate system capable of sustaining human life,” and to 

“life” itself, which is explicitly in the language of the instrument. Doc. 514-1 ¶¶ 5, 8, 34-A, 96, 

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278-822; U.S. Const. amend. V. Only the courts can “ascertain” what the right of “life” means in 

the founding documents and whether these Youth Plaintiffs are entitled to its constitutional 

protection.

3

Similarly, with respect to “liberty,” only the courts can decide what protection liberty 

affords under the Constitution. Thus, Dobbs sets forth, in part, this Court’s task: “Historical 

inquiries of this nature are essential whenever we are asked to recognize a new component of the 

‘liberty’ protected by the Due Process Clause because the term ‘liberty’ alone provides little 

guidance. ‘Liberty’ is a capacious term.” 142 S. Ct. at 2247. “Ordered liberty sets limits and defines 

the boundary between competing interests.” Id. at 2257. Now, more than ever, as this Supreme 

Court begins rewriting the definition of constitutionally-protected liberty through an historical 

lens, fact-based, historically-informed, merits-based decisions by our federal district courts must 

precede appellate court review of an actual case or controversy regarding asserted constitutional 

rights and infringements.

Dobbs also heralds Timbs v. Indiana, 139 S. Ct. 682 (2019) and McDonald v. Chicago, 561 

U.S. 742, 763–66 (2010), as models of constitutional analysis; both of which were fact-intensive 

cases, with Timbs decided on the merits after consideration of the evidence. 142 S. Ct. at 2246-47. 

In line with those models, the Supreme Court “begin[s] with the common law...” Id. at 2249. The 

Supreme Court also looks to “state constitutional provision or statute,” “federal or state judicial 

2 References to the “right to life” or infringements to a Plaintiff’s “life” arise more than 100 times 

throughout the proposed Second Amended Complaint. See Doc. 514-1.

3 See Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016), rev’d and remanded,

947 F.3d 1159 (9th Cir. 2020) (“In this opinion, this Court simply holds that where a complaint 

alleges governmental action is affirmatively and substantially damaging the climate system in a 

way that will cause human deaths, shorten human lifespans, result in widespread damage to 

property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a 

claim for a due process violation.”).

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precedent,” and “scholarly treatise.” Id. at 2259. The failure to engage with the long traditions of 

history can be “devastating” to a judicial position, according to the Majority in Dobbs. Id. at 2260. 

Ultimately, the Supreme Court is looking for a “firm grounding in constitutional text, history, or 

precedent,” and constitutional standards that are built to last. Id. at 2272, 2274. Unlike Dobbs’

criticism of Roe, the present case does not require the Court to conduct “doctrinal innovation” that 

“engineer[s] exceptions to longstanding background rules” or fail to deliver a “‘principled and 

intelligible’ development of the law.” Id. at 2276. A thorough factual and historical inquiry based 

on the claims in the proposed Second Amended Complaint will make clear that the asserted 

constitutionally protected rights are entirely consistent with constitutional text, common law, 

longstanding background rules, Blackstone, Story, and the like, and are vital to ordered liberty. 

Thus, Dobbs makes clear both that constitutional analyses require rigor, as well as 

exploration of facts and history, and that the judiciary is the singular branch of government tasked 

with such an inquiry in an actual constitutional case or controversy as is presented here. 

3. Dobbs affirms other implicit liberty rights

Dobbs repeatedly affirms that the implicit liberty rights protected by precedent such as 

Griswold, 381 U.S. 479 (1965), Eisenstadt, 405 U.S. 438 (1972), Lawrence, 539 U.S. 558 (2003),

and Obergefell, 576 U.S. 644 (2015), remain intact as binding constitutional precedent. 

The abortion right is also critically different from any other right that this Court has 

held to fall within the Fourteenth Amendment’s protection of “liberty.” . . . because 

it destroys what [Roe and Casey] called “fetal life” and what the law now before us 

describes as an “unborn human being.”

Id. at 2243. Notwithstanding the concurrence or dissent, the Supreme Court reiterated repeatedly

throughout Dobbs: “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and 

Obergefell does not destroy a ‘potential life,’ but an abortion has that effect,” Id. at 2261; “none 

of these decisions involved what is distinctive about abortion: its effect on what Roe termed 

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‘potential life,’” Id. at 2268; “our decision concerns the constitutional right to abortion and no 

other right. Nothing in this opinion should be understood to cast doubt on precedents that do not 

concern abortion,” Id. at 2277-78; the “conclusion that the Constitution does not confer such a 

right [to abortion] does not undermine [other recognized implicit rights] in any way.” Id. at 2258.

In sum, the Supreme Court says: Abortion is different. Life, even “potential life” is at stake.

Here, too, life is at stake.

Conclusion

Dobbs is precedential to this Court’s decision on the Motion to Amend because the issues 

presented by the proposed Second Amended Complaint involve fundamental constitutional rights, 

where the evidence will show such rights have substantial basis in the Constitution’s text and in 

our Nation’s history. Defendants take the position that federal courts lack authority to declare or 

deny the existence of any such fundamental rights, but the Dobbs decision clearly shows such

position is untenable. 

If one trusts the message of the Supreme Court in Dobbs, when it criticizes the dissent that 

righting constitutional wrongs should not take decades, especially when “potential life” is at stake 

and generations of “children” have suffered, then Dobbs makes clear that Juliana v. United States 

must proceed from a Second Amended Complaint to trial and decision on the merits, and there is 

no time to waste. In the Supreme Court’s words: 

Does the dissent really maintain that overruling Plessy was not justified until the 

country had experienced more than a half-century of state-sanctioned segregation 

and generations of Black school children had suffered all its effects?

Id. at 2279. Said another way, can any judge “really maintain” that deciding whether children have 

rights to life and a stable climate system is “not justified until the country ha[s] experienced more 

than a half-century of state-sanctioned [climate destruction] and generations of [ ] children had 

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suffered all its effects?” A trial in Juliana is entirely consistent with the Dobbs Majority’s concern

about the constitutional issues presented by government-sanctioned harm to life, liberty, and 

children, and the need to set the constitutional record straight based on the Constitution’s text and 

our Nation’s history. No final decision in this case should be rendered until this Court has had a 

chance to hear the case on the merits and make that most vital constitutional ruling about the right 

to life and liberty of our children. 

In criticizing the Dobbs Concurrence by the Chief Justice for offering a “narrow decision” 

that the Majority viewed as wrong and unprincipled, the Supreme Court emphasized: the “quest 

for a middle way would only put off the day when we would be forced to confront the question we 

now decide. The turmoil . . . would be prolonged. It is far better—for this Court and the country—

to face up to the real issue without further delay.” Id. at 2283. Given the allegations of systemic 

government action causing the current climate crisis that denies these Youth their rights to life and 

liberty, particularly when the Ninth Circuit has found the Youth have already more-thanestablished at the pretrial phase their injury caused by the affirmative acts of their government, 

this Court should grant Plaintiffs’ Motion to Amend and set a trial date forthwith. Such a decision 

should end Defendants’ incessant petitioning the appellate courts for a premature writ of 

mandamus and any other extraordinary measures on the shadow docket that thwart these Youths’ 

ability to finally have their evidence heard by the district court in the first instance. After all, life 

is at stake. Dobbs demands as much.4

4 As women and mothers, and as a grandfather to a beautiful granddaughter, counsel Olson and 

Rodgers and counsel Gregory wish to note their objection to Dobbs and its reversal of Roe, 

constitutional protection that Olson and Rodgers have lived under since infancy. We object to 

equating Dobbs with Brown v. Board of Education. And we object to the Majority of the Supreme 

Court writing women and privacy over our bodies out of the U.S. Constitution. Out of respect for 

the rule of law, the judiciary, and our sworn oaths to uphold the Constitution, we will argue before 

this Court faithfully following Supreme Court precedent as warranted, and we will work to protect

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DATED this 11th day of October, 2022.

Respectfully submitted,

/s/ Julia A. Olson________________

JULIA A. OLSON (OR Bar 062230)

julia@ourchildrenstrust.org

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com 

ANDREA K. RODGERS (OR Bar 041029)

andrea@ourchildrenstrust.org

Attorneys for Plaintiffs

the fundamental rights and equal protection of the law of all genders, races, cultures, religions,

sexual orientations, and socio-economic classes of children today and of generations of children 

to come so that they can strive for their best potential in life and be safe in their bodies, minds, 

homes, schools, and communities. As attorneys, we will name wrongs and seek to right them when 

we see them.

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