On Thursday, nearly 230 Republican members of Congress told the Supreme Court that Roe v. Wade should be overturned and the court’s “vise grip on abortion politics” should be released.
The new brief is the most recent submission in a case that will be heard next term and is the most important abortion-related case the justices have heard in nearly a half-century. The conservative court, which is bolstered by three of former President Donald Trump’s appointees, has the potential to gut or invalidate court precedent, which is exactly what GOP lawmakers want.
“Congress and the States have shown that they are ready and able to address the issue in ways that reflect Americans’ varying viewpoints and are grounded in the science of fetal development and maternal health,” lawyers for 228 Republican lawmakers, including leadership in both chambers, told the justices.
A Mississippi law prohibits most abortions after 15 weeks of pregnancy, which is the case before the court. Rape and incest are not exceptions. In the run-up to the mid-term elections in June, the court will make its decision.
Mississippi’s request for the law to take effect is being supported by lawmakers, including Senate Minority Leader Mitch McConnell. Americans United for Life is the group that represents them.
In Thursday’s brief, they asked the court to “affirm the constitutional authority of the federal and state governments to safeguard the lives and health of their citizens, born and not yet born.”
Roe v. Wade made abortion legal nationwide before viability, which occurs around 24 weeks of pregnancy, according to experts.
The legislators argue that the viability line established in court precedent should be revisited because it “binds the States in a one-sided constitutional tug-of-war in which they are subjected to intense factual scrutiny on abortion advocates’ issues but unable to establish the factual basis for their own vital interests.”
After the Jackson’s Women Health Center, the state’s only remaining clinic, filed a lawsuit, lower courts blocked the law, claiming it was in direct violation of Supreme Court precedent.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” a panel of judges on the 5th US Circuit Court of Appeals said in December 2019. “States may regulate abortion procedures prior to viability so long as they do not ban abortions,” the court held and concluded that “the law at issue is a ban.”
Earlier this week, three other Republican senators — Ted Cruz of Texas, Josh Hawley of Missouri, and Mike Lee of Utah — who clerked for the late Chief Justice William Rehnquist, Chief Justice John Roberts, and Justice Samuel Alito, respectively, weighed in in support of Mississippi, using their brief to argue that Roe should be overturned despite the fact that it has been on the books for more than 50 years.
In most cases, the Supreme Court is hesitant to reverse previous decisions, relying on a doctrine known as “Stare Decisis,” which roughly translates to “stand by the thing decided.”
The doctrine reflects a reverence for the historical accumulation of opinions as well as the consistent development of legal principles.
However, the trio argued that while Stare Decisis considerations are important to the legal process, “they are not absolute” and that abortion precedent should be revisited.
In their friend of the court brief, they said, “A history of confusion in the lower courts, an unstable pattern of Supreme Court decisions, and a persistent lack of judicially manageable standards all suggest that a precedent is or has become unworkable.”
