The New York Times: More Than 200 Republicans Urge Supreme Court to Weigh Overturning Roe v. Wade
By Cheryl Gay Stoberg
More than 200 Republican members of Congress on Thursday asked the Supreme Court to consider overturning Roe v. Wade, the landmark 1973 ruling that established a woman’s right to an abortion, in a brief urging the justices to uphold a Louisiana law that severely restricts access to the procedure.
Roughly 80 percent of the Republicans in Congress — 39 senators and 166 House members — and two centrist House Democrats signed the amicus curiae, or “friend of the court,” brief in the case of June Medical Services L.L.C. v. Gee. They also asked the justices to consider overturning another landmark abortion ruling in the 1992 case Planned Parenthood v. Casey.
“The court has exercised that judgment to overrule precedent in over 230 cases throughout its history,” the lawmakers wrote. “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 court is expected to hear the June Medical case this spring, and a ruling is likely in June. At issue is a 2014 Louisiana law, passed but never enacted, that requires doctors performing abortions to have admitting privileges at nearby hospitals. Only one doctor in Louisiana has been able to meet the requirement, challengers of the law say, and they argue that its sole purpose is to make access to abortion more difficult. Proponents contend the law is needed to ensure the health and the safety of women seeking abortions.
The case is certain to inject the divisive politics of abortion into the 2020 presidential race. President Trump ran and won in 2016 partly on a promise to nominate Supreme Court justices who would overturn Roe, and June Medical is the court’s first case on abortion since Justices Neil M. Gorsuch and Brett M. Kavanaugh, both appointed by Mr. Trump, joined the court.
The sheer number of those signing the brief suggests the importance that Republicans place on restricting abortion rights and telegraphing to their core supporters that they are serious about doing so. The signers include the top three House Republicans — Representatives Kevin McCarthy of California, Steve Scalise of Louisiana and Liz Cheney of Wyoming — and the No. 2 Senate Republican, John Thune of South Dakota.
But Senator Mitch McConnell, Republican of Kentucky and the majority leader, did not sign. Nor did several Republicans facing challenging re-election contests in politically competitive states, including Senators Susan Collins of Maine, Cory Gardner of Colorado and Martha McSally of Arizona. The two Democrats who signed, Representatives Collin C. Peterson of Minnesota and Daniel Lipinski of Illinois, are both from the party’s conservative wing. Mr. Peterson broke with Democrats last month in voting against impeaching Mr. Trump, and Mr. Lipinski’s stance against abortion rights has prompted internal strife within the party.
The brief was drafted by Americans United for Life, an anti-abortion-rights group. Katie Glenn, a lawyer for the organization, said that when the court took the case, members of Congress wanted to weigh in. But, she said, they are aware that overturning Roe would be a huge leap, even for a court that is moving to the right.
“No one is going into this case with an expectation that Roe v. Wade will be overturned,” Ms. Glenn said. “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.”
Democratic lawmakers have filed their own amicus brief calling for the Louisiana law to be struck down. Stephanie Schriock, the president of Emily’s List, a group that works to elect Democratic women who support abortion rights, assailed the Republican brief in a statement.
“Reproductive rights and the ability to make our own health care decisions are fundamental to the freedoms we have under the Constitution,” she said. “Unfortunately, this amicus brief proves that not only is the threat to those rights very real, but it is at a critical tipping point where the minority is ready to strip our freedom away against the majority’s wishes.”
The Republicans’ brief argues that Roe, and a series of abortion rights decisions that flowed from it, are unworkable opinions. “In sum, Roe’s jurisprudence has been characterized by Delphic confusion and protean change,” the lawmakers wrote.
They also took aim at the 1992 Casey ruling, in which the justices upheld the constitutional right to an abortion established in Roe, but found that states could impose restrictions as long as they did not constitute an “undue burden” on abortion rights.
In a 2016 case, Whole Woman’s Health v. Hellerstedt, the court, citing Casey’s “undue burden” criteria, struck down a Texas law similar to the one in Louisiana. The next year, a federal judge in Louisiana, citing Hellerstedt, struck down the Louisiana law, but that ruling has been reversed on appeal.
Now the matter rests with the Supreme Court, which is expected to hear oral arguments in March. In their amicus brief, the lawmakers asserted that Casey’s “undue burden” standard was “vague and opaque,” and left judges, including those in Louisiana, struggling to figure out how to apply it.
“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,” they wrote, “and the need for the court to take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”