By Jack Phillips
Forty-four Senate Republicans and 184 House Republicans urged the Supreme Court to overturn the landmark abortion ruling Roe v. Wade when the justices review a Mississippi law during their next term.
“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,” wrote the lawmakers in an amicus brief (pdf) to the court dated Wednesday.
At issue in the case is a 2018 Mississippi law that bars most abortions after the 15th week of pregnancy. The Mississippi law was challenged by the Jackson Women’s Health Organization and lower courts have since ruled against it.
The lawmakers’ filing comes about a week after Mississippi’s attorney general, Lynn Fitch, called on the high court to overturn Roe v. Wade so the state can uphold its law, arguing that “the conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition” and further characterized the 1973 ruling as “dangerously corrosive to our constitutional system.” Roe v. Wade ruled that abortion is legal prior to what they said is viability, or around the 24th week of pregnancy.
“Abortion is fundamentally different from any right this Court has ever endorsed,” Fitch wrote a week ago. “No other right involves, as abortion does, ‘the purposeful termination of a potential life.’”
Senate Minority Leader Mitch McConnell (R-Ky.), House Minority Leader Kevin McCarthy (R-Calif.), and other Republican leadership members signed onto the brief. Several days before that, a trio of Republican senators—Josh Hawley (Mo.), Mike Lee (Utah), and Ted Cruz (Texas)—filed their own brief.
“The States,” the lawmakers’ Wednesday filing further argued, “have expressed the desire to protect life through a burgeoning number of laws enacted to further the States’ important interests in protecting women from dangerous late-term abortion, ending the destruction of human life based on sexism, racism, ableism, upholding the integrity of the medical profession against the barbaric practice of dismembering human beings in the womb, and protecting preborn infants from the horrific pain of such abortions.
For decades, conservatives have fought to overturn Roe v. Wade and the 1992 follow-up Supreme Court decision, Planned Parenthood v. Casey. Some believe that the current Supreme Court, which has six justices who were appointed by Republican presidents, is their best chance in decades to have the ruling overturned or eroded.
The court now includes the addition of President Donald Trump’s third appointee, Justice Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg—a longstanding proponent of abortion—in September 2020.
An opposing legal brief from the Jackson Women’s Health Organization is due by Sept. 13. Previously, the clinic said that that 50 years of precedent and court rulings have established Roe v. Wade.
“Before viability, the State’s interests, whatever they may be, cannot override a pregnant person’s interests in their liberty and autonomy over their own body,” the clinic wrote in 2020.
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