Three Republican senators on Monday urged the Supreme Court to overturn its decisions in two historic abortion cases.
Sens. Josh Hawley (R-Mo.), Mike Lee (R-Utah), and Ted Cruz (R-Texas) in an amicus brief filing urged the high court to overturn the 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey decision and return the power to make legislation regarding abortion to the states.
In Roe v. Wade, states are prohibited from banning abortions prior to when the fetus is deemed “viable”—that is, potentially able to live outside its mother’s womb—deemed at the time usually around the second trimester at 24 weeks.
The ruling asserted that a woman had a constitutional right to an abortion in the “pre-viability” period and that state laws regulating abortion would have to pass the strict scrutiny standard—the highest and most stringent standard of judicial review that courts use to determine the constitutionality of laws. As such, laws that restrict or regulate abortion could be justified only if they were narrowly tailored to serve “compelling” state interests.
In Planned Parenthood v. Casey, the court reaffirmed Roe v. Wade. However, among other provisions, it replaced Roe’s strict scrutiny standard with an “undue burden” standard, such that states generally can pass laws regulating abortion unless doing so places “undue burden” on a woman’s ability to obtain an abortion.
The lawmakers said in their 33-page filing (pdf) that Roe v. Wade’s approach “proved controversial, and conceptually flawed, from the outset.” Meanwhile, they said that the Parenthood v. Casey decision’s undue burden standard is ambiguous and has made it hard for courts to consistently apply it, calling it “too subjective” and is “unworkable and unpredictable.”
“Nearly three decades on, the undue burden test has proved so murky that courts have repeatedly fallen back on the conflicting moral and jurisprudential intuitions that Casey purported to sideline,” the senators wrote.
“This status quo is untenable,” they added. “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.”
“Roe and Casey should be overruled, and the question of abortion legislation should be returned to the states,” they concluded.
The filing comes in an ongoing case involving the state of Mississippi. In 2018, the state’s governor signed into law a ban on abortion at 15 weeks of gestation. Less than an hour after the signing, it was challenged by the Jackson Women’s Health Organization—the only abortion provider in the state—and was blocked from taking effect by a federal judge the following day.
The same judge, Carlton Reeves, an Obama appointee, in November 2018 struck down the law, saying it was unconstitutional. The state of Mississippi appealed, but the New Orleans-based Fifth Circuit Court of Appeals upheld Reeves’s decision in December 2019 (pdf). The appellate court later denied a request for a rehearing in January 2020.
Following the setback, Mississippi asked the Supreme Court to take up the case, and the high court in May agreed to do so. The case is expected to be argued when the court’s term starts in October.
The case is Dobbs v. Jackson Women’s Health Organization 19-1392.