The National Right to Life Committee (“NRLC”) and Louisiana Right to Life (“LARTL”) have filed a brief asking the U.S. Supreme Court to reverse course in a direction that will allow more abortion regulation and lead to reversing Roe v. Wade. They have asked the Court to provide a new roadmap, mandating that normal legal rules must be applied in abortion cases and state interests must be given full effect.
The case is Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s ban (with exceptions) on abortions after 15 weeks of pregnancy. The lower courts said that under the Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), no ban is permitted before viability (when babies can live outside the womb). The only Supreme Court issue is “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional?”
As the NRLC and LARTL brief noted, abortion law is currently in confusion, with lower courts unsure of what the law is actually is. The Court tried to fix the “jurisprudence of doubt” in its 1992 Casey decision by revising the test imposed by Roe in favor of a new “undue burden” test. But in later cases, new Court majorities applied a stricter test, and the multiple opinions in the last one (June Medical Services v. Russo) left lower courts confused as to what the test is. So, a new roadmap is required, the brief noted.
The brief showed how, since Roe, the Court has bent normal rules to make Roe’s abortion right more absolute, which the new roadmap should reject. And courts have failed to give full effect to state interests, for example, in Dobbs, the trial court didn’t even allow the State to put on evidence in defense of its law. These interests include protecting preborn human life (including from pain), protecting maternal health, guarding against harm to the integrity of the medical profession, protecting civil society, protecting against sex-, race-, and disability-discrimination, and other vital interests. Requiring normal rules and giving full effect to state interests will reverse the course Roe set in abandoning normal law and eventually put Roe itself at issue.
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James Bopp, Jr., of The Bopp Law Firm and NRLC’s General Counsel says: “Since Roe v. Wade, the Supreme Court has twisted the normal rules of law to protect an absolute abortion right and not given full effect to powerful state interests such as protecting preborn life and maternal health. Today, we ask the Court to reverse that tangential path, which will allow greater regulation of abortion, lead to stability in the law, and put Roe itself at issue.”