Three leading pro-life senators have filed a legal brief with the Supreme Court urging it to overturn Roe v. Wade when it considers a new case later this year from Mississippi that bans late-term abortions.
The Supreme Court agreed recently to hold a hearing on a major abortion case that could limit Roe v. Wade and protect babies from late-term abortions. The U.S. Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization, a law that bans killing babies in abortions after 15 weeks.
Calling the status quo “untenable,” the senators said the legal doctrine on abortion that emerged over roughly the past five decades since Roe was decided in 1973 has given judges excessive discretion and proven unworkable.
“Roe and Casey should be overruled, and the question of abortion legislation should be returned to the states,” they wrote, referring also to the court’s 1992 decision in Planned Parenthood v. Casey.
“Where a legal doctrine has repeatedly failed to offer clarity — where it has proved unworkable in the past and will likely engender unpredictable consequences in the future — its existence constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature,” the senators wrote.
Last week, Mississippi Attorney General Lynn Fitch filed a brief with the Supreme Court asking it to overturn Roe v. Wade and allow states to protect babies from abortions.
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“There are those who would like to believe that Roe v. Wade settled the issue of abortion once and for all,” said Attorney General Fitch. “But all it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court. As a result, state legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children. It is time for the Court to set this right and return this political debate to the political branches of government.”
As noted in the brief, rather than settle the discord established by Roe, Planned Parenthood of Southeastern Pennsylvania v. Casey made matters worse. “Casey recognized that Roe’s disregard for state interests had to be abandoned…. Casey tried to improve upon Roe by replacing strict scrutiny with the undue-burden standard. But that standard too defeats important state interests rather than accounts for them.”
The brief continues, “The only workable approach to accommodating the competing interests here is to return the matter to ‘legislators, not judges.’…The national fever on abortion can break only when this Court returns abortion policy to the states – where agreement is more common, compromise is more possible, and disagreement can be resolved at the ballot box.”
“With this brief, we’re simply asking the Court to affirm the right of the people to protect their legitimate interests and to provide clarity on how they may do so,” said Fitch.
In the nearly 50 years since Roe, science and society have marched forward, she said. During this time, the viability marker has moved from 28 weeks to 22 weeks in some cases, and science will only continue to advance.
“Legislatures should be able to respond to those advances, which they cannot do in the face of flawed precedents that are anchored to decades-stale views of life and health,” the brief reasons.
The Attorney General asks the Court to consider the policy and cultural shifts that have occurred in the 30-50 years since Roe and Casey and argues that the precedent set in these cases, “shackle states to a view of facts that is decades out of date.”
The brief counters Casey, stating, “Many laws (largely post-dating Roe) protect equal opportunity—including prohibitions on sex and pregnancy discrimination in employment, guarantees of employment leave for pregnancy and birth, and support to offset the costs of childcare for working mothers…. Casey gives no good reason to believe that decades of advances for women rest on Roe, and evidence is to the contrary.”
“A lot has changed in five decades,” continued Fitch. “In 1973, there was little support for women who wanted a full family life and a successful career. Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office. The flexibility of the gig economy was a fairy tale. In these last fifty years, women have carved their own way to achieving a better balance for success in their professional and personal lives. By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.”
The 2018 Mississippi law prohibits abortions after 15 weeks except when there are risks to the life or physical health of the mother, or fatal fetal anomalies. Based on state health records, about 200 unborn babies between 15 and 20 weeks are aborted every year in Mississippi and the law would save their lives.
Fitch’s brief referred to the high court’s recent ruling on a Louisiana abortion regulation in June Medical Services v. Russo. She pointed out conflicting lower court rulings that cite the arguments in that case and asked the Supreme Court for clarification, the report states.
“This case remains an ideal vehicle to promptly resolve both that question and the first question presented—the contradictions in this Court’s decisions over use of ‘viability’ as a bright line for measuring pro-life legislation,” she wrote.
Mississippi’s law highlights a conflict between the Supreme Court’s ruling in Roe v. Wade and the court’s repeated affirmation in subsequent cases that states have a legitimate interest in limiting abortion and protecting “vulnerable and innocent life” from the moment of conception.
“Every human life is valuable, and Mississippi’s law is a commonsense step toward protecting unborn children and their mothers from the harms of late-term abortion,” said Alliance Defending Freedom Senior Counsel Denise Harle. “The law protects the life of a baby who can already move around and kick in her mom’s womb—a child who has a heartbeat, can taste what her mom eats, and can experience pain. And the law also protects women, since late-term abortions grow increasingly dangerous to the mother’s health. Women and their children both deserve real health care; that’s why we’re glad the Supreme Court has decided to take up this matter.”
The state argues that “viability” is an arbitrary standard for determining when a state’s interests are sufficient to regulate, and that the Supreme Court has already recognized that the state has a legitimate interest in protecting the unborn infant and the health of the mother from the very beginning of pregnancy.
“The Supreme Court has repeatedly recognized that states are free to regulate late-term abortions,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Thanks to amazing progress in scientific research and medical technology, the concept of ‘viability’ is an ever-moving target as younger children have survived and thrived after preterm birth. But ‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence. The high court should take this important opportunity to resolve the conflicts between its previous rulings and affirm the constitutionality of Mississippi’s law.”
Many states have pro-life laws that protect unborn children after 20-24 weeks of pregnancy, which is the most they are able to do considering the Supreme Court refuses to allow states to ban abortions prior to viability. Through this new case, Mississippi is challenging that precedent.
Polls consistently find strong public support for abortion restrictions after the first trimester. Gallup has been asking about the legality of abortions by trimester for decades. Its polls have found steady, strong opposition to abortions in the second and third trimesters.
Additionally, a 2019 Hill-HarrisX poll found that 55 percent of voters said they do not think laws banning abortions after six weeks – when an unborn baby’s heartbeat is detectable – are too restrictive.
In a separate case, Mississippi also is fighting in court to defend its heartbeat law, which would protect almost all unborn babies from abortions in the state.
The Supreme Court took away the states’ ability to protect unborn babies from abortion, and instead allowed abortion on demand through all nine months of pregnancy. Roe made the United States one of only seven countries in the world that allows elective abortions after 20 weeks.
There is more hope that the Supreme Court may consider overturning Roe, especially now that Justice Amy Coney Barrett has been confirmed.