Nearly 230 Republican members of Congress told the Supreme Court on Thursday that it should overturn Roe v. Wade and release its “vise grip on abortion politics.”
The new brief is the latest filing in a dispute that will be heard next term and represents the most significant abortion-related case the justices have taken up in nearly a half a century. The 6-3 conservative court, bolstered by three of former President Donald Trump’s appointees, could gut, or invalidate court precedent, and that’s what the GOP lawmakers are calling for.
“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.
At issue before the court is a Mississippi law that bars most abortions after 15 weeks of pregnancy. There is no exception for rape or incest. The court will render its decision by next June, in the lead up to the mid-term elections.
The lawmakers, including Senate Minority Leader Mitch McConnell, are supporting Mississippi’s request to allow the law to go into effect. They are represented by the group Americans United for Life.
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 legalized abortion nationwide prior to viability which experts believe occurs around 24 weeks of pregnancy.
The lawmakers say the court should revisit the viability line established in court precedent, because it “binds the States in a one-sided constitutional tug-of-war in which they are subject to intense factual scrutiny on the abortion advocates’ issues but unable to establish the factual basis for their own vital interests.”
Lower courts blocked the law after the Jackson’s Women Health Center, the only remaining clinic in the state, brought the challenge arguing the law was a 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 in the 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, also weighed in in favor of Mississippi using their brief to make the argument that Roe should be invalidated even though it has been on the books since 1973.
Under normal circumstances, the Supreme Court is reluctant to overturn past cases, relying upon a doctrine called “Stare Decisis” which is roughly translated to mean “stand by the thing decided.” The doctrine reflects a respect for the accumulated opinions that have been handed down in history as well as the consistent development of legal principles.
But the trio argued that while Stare Decisis considerations may be important to the judicial process, “they are not absolute” and that abortion precedent needs to be revisited.
“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,” they said in their friend of the court brief.
Texas Attorney General Ken Paxton also filed a brief joined by 23 other states supporting Mississippi and urging the court to overrule Roe.
“This Court has propounded a constitutional law of abortion for half a century, and no one can describe it with any certainty,” the states wrote. “Because the purported right to abortion lacks any textual or historical foundation, it is defined only by the Court’s constantly changing opinions.”
Paxton, a Republican, urged the Supreme Court to reject a strict viability line.
“States have every right to fight for the lives of unborn children, and scientific research has proven that babies in utero can survive with modern medicine months before what is considered viable,” he said in a statement. “States should be able to act on scientific developments in regards to brutal abortion practices.”
The Center for Reproductive Rights is representing the clinic and its medical director, Sacheen Carr-Ellis. Lawyers for the center will respond to Mississippi’s appeal later this year.
Last year, the group urged the justices to allow the lower court opinion to stand, arguing that Supreme Court precedent makes clear that before viability “it is up to the pregnant person, and not the State, to make the ultimate decision whether to continue a pregnancy.”
This story has been updated with additional details.