In an amicus brief to a Supreme Court case regarding a Louisiana abortion law, more than 200 GOP lawmakers — along with two centrist House Democrats — urged the court to reconsider the 1973 Roe v. Wade ruling.
According to The New York Times, the brief was filed in the case of June Medical Services L.L.C. v. Gee, which will be the first major abortion test to go before the high court since Neil Gorsuch and Brett Kavanaugh were confirmed as justices.
Thirty-nine GOP senators and 166 representatives put their names on the brief, which called the 46-year-old decision “unworkable.”
“The court has exercised that judgment to overrule precedent in over 230 cases throughout its history,” the brief, filed Thursday, read.
“Forty-six years after Roe was decided, it remains a radically unsettled precedent: Two of the seven justices who originally joined the majority subsequently repudiated it in whole or in part, and virtually every abortion decision since has been closely divided.”
The letter also urged the court to reconsider Planned Parenthood v. Casey, a 1992 decision which established the precedent in which any law placing an “undue burden” on a woman seeking an abortion was unconstitutional.
Americans United for Life, a pro-life group, helped lawmakers draft the letter. Katie Glenn, a lawyer with AUL, said they didn’t necessarily think that Roe v. Wade would be overturned but that pro-life members of Congress wanted to weigh in.
“No one is going into this case with an expectation that Roe v. Wade will be overturned,” Glenn told The Times.
“However, the court has the opportunity to reconsider the precedent that has gotten us to where we’re at, and that’s all that the members of Congress were seeking to point out, that it is the court’s prerogative to assess the jurisprudence that got us here.”
The Louisiana law is similar to a Texas law that was struck down by the high court in the 2016 case Whole Woman’s Health v. Hellerstedt.
It requires abortionists to have admitting privileges at a local hospital, something that the court decided imposed an undue burden in the Whole Woman’s Health decision.
That case was decided by a 5-3 margin, with former Justice Anthony Kennedy being the swing vote.
June Medical Services L.L.C. v. Gee’s trip through the American judicial system had been on hold pending the court’s decision in Whole Woman’s Health.
However, in September 2018, the 5th Circuit Court of Appeals in New Orleans ruled, in a 2-1 decision, that the Louisiana law didn’t place an undue burden on women like the Texas law did.
While the Texas law had led to the closure of most of the state’s abortion clinics, according to Reuters, the 5th Circuit Court found that “[t]here is no evidence that any of the clinics will close as a result of the Act” in Louisiana.
The only burden, the judges said, would be increased wait times for 30 percent of women in the state.
The Supreme Court will hear oral arguments on the case in March.
In their brief, the legislators argued the “undue burden” standard set by Casey was “vague and opaque,” a problematic standard for states who had to apply it to their own legislation.
As for the case that begat it, the lawmakers argued “Roe’s jurisprudence has been characterized by Delphic confusion and protean change.”
“Amici respectfully suggest that the court’s struggle — similar to dozens of other courts’ herculean struggles in this area — illustrates the unworkability of the ‘right to abortion’ found in Roe,” the letter stated, “and the need for the court to take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”
The letter also argued that abortion clinics lacked standing to challenge the law inasmuch as they tend to have long histories of health violations and aren’t guardians of their patients’ best interests
“There is an inherent conflict of interest between abortion providers and their patients,” the letter read.
“It is impossible for abortion clinics and doctors to share or represent the interests of their patients when they seek to eliminate the very regulations designed to protect their patients’ health and safety.”
However, Louisiana has not asked the court to overturn Roe v. Wade, merely to uphold the law as necessary to protect the health of residents.
The Louisiana law is one of many at the state level that’ll likely end up before the Supreme Court and could end up dramatically changing the interpretation of Roe v. Wade and similar cases, even if they don’t end up being overturned.
Thus, unless you believe that Roe v. Wade will be overturned on the first try, this likely won’t be the last time you’ll see one of these briefs before the Supreme Court.
The fact that the Supreme Court is even considering the case is proof of just how important the judiciary is.
Finally, props have to be given to Democratic Reps. Collin Peterson of Minnesota and Daniel Lipinski of Illinois, both of whom went out on a limb to sign this document.
Both have been under assault by their party, albeit for different reasons.
Peterson, an at-risk Democrat in a fairly conservative district, voted against President Donald Trump’s impeachment, whereas Lipinski’s pro-life views have brought him into conflict with lock-step Democrats.
At one point, there certainly weren’t a paucity of pro-life Democrats.
The party, alas, has largely done away with them.
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