Over 200 Lawmakers Urge Supreme Court to ‘Reconsider’ Roe v. Wade

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 3, 2020Updated: January 3, 2020

More than 200 lawmakers filed a brief to the Supreme Court, arguing that the landmark abortion case of Roe v. Wade should be “reconsidered” because the right to abortion standard is “unworkable.”

Thirty-nine Republican senators and 166 House Republicans suggested to the high court in an amicus brief in an upcoming abortion case that they should take up the issue of whether Roe v. Wade should be reconsidered. The submission said the principles in the case contained “ambiguity” and has been construed by lower courts inconsistently. Two Democrats—Rep. Collin Peterson (D-Minn.) and Rep. Daniel Lipinski (D-Ill.)—also signed the brief.

“Forty-six years after Roe was decided, it remains a radically unsettled precedent,” the lawmakers wrote in their brief (pdf).

They argued that the principles in Roe were “haphazard from the beginning” and that the judges in the case only implied that there was a ‘fundamental’ constitutional right to abortion.

“Instead, the court only required that regulations be ‘reasonably relate[d]’ to the State’s interest and ‘tailored to the recognized state interests,'” they wrote. “The cases decided since did not consistently treat abortion as a ‘fundamental right’ and did not consistently apply strict scrutiny.”

The right to abortion is not an issue in the case, cited as June Medical Services LLC v. Gee, where the brief was filed. The case deals with a challenge to a 2014 state law, Act 620, that requires doctors performing abortions to have hospital admitting privileges within 30 miles of where the procedure was taking place.  The lawmakers’ brief was filed in support of Dr. Rebekah Gee in her official capacity as secretary of the Louisiana Department of Health—the respondent in the case.

The state argued that the admitting privileges—which means a doctor is required to be a member of a hospital’s medical staff with the ability to admit patients in order to provide diagnostic and therapeutic services—were necessary to protect patients’ health and safety.

But the appellants June Medical Services and two doctors argued that the law imposes an “undue burden” on women seeking abortion services. Opponents have also said the law could effectively reduce the state’s abortion providers. The appellants also argued that the law is unconstitutional because the Supreme Court had already struck down an almost identical law in Texas in 2016.

The Fifth Circuit Court of Appeals upheld the Lousiana’s abortion restrictions after determining the Lousiana law was “remarkably different” from the Texas one. The Supreme Court agreed to review the case in October and is set to hear oral arguments in March.

In their brief, the lawmakers urged the top court to uphold the circuit court’s decision saying that the appellants lacked standing to bring the case on behalf of its patients. They argued that the Lousiana abortion clinics, including June Medical Services, was not interested in the safety of its patients while citing their long history of “professional disciplinary actions and substandard medical care.”

The lawmakers also argued that the circuit court was right in deciding that the Lousiana law did not impose an “undue burden” on access to abortion. It argued that the Lousiana law was different from the Texas law because it was trying to bring abortion facilities into “into the same set of standards” as applied to abortionists in surgery centers.

“The Fifth Circuit also found that the record regarding hospital credentialing in Louisiana is starkly different from that in [Whole Woman’s Health v. Hellerstedt]. Unlike Texas, ‘Louisiana was not attempting to target or single out abortion facilities,'” they wrote.

This brief comes after almost 200 Democratic senators and representatives filed a similar brief in support of appellants (pdf) asking the courts to strike down the Lousiana law.