GOP senators file amicus brief urging SCOTUS to overturn Roe v. Wade

A group of GOP lawmakers this week filed an amicus brief in which they argued for the U.S. Supreme Court to overturn landmark abortion cases such as Roe v. Wade as well as Planned Parenthood v. Casey ahead of the high court’s hearing in its next term of a Mississippi case involving a ban on the procedure after 15 weeks gestation, as The Hill reports.

According to the brief submitted by Sens. Josh Hawley (R-MO), Mike Lee (R-UT), and Ted Cruz (R-TX), it is incumbent on the justices to take the opportunity presented by the Mississippi case to put an end to the legal doctrines spawned by Roe and attendant cases, which they claim have resulted in an unworkable tangle of judicial interpretation that affords lower courts too much discretion.

The senators assert that “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.”

In short, the lawmakers argue, “Roe and Casey should be overruled, and the question of abortion legislation should be returned to the states.”

Their brief comes on the heels of one filed by the attorney general of Mississippi who also called for the court to end to Roe and its subsequent jurisprudence when it hears arguments on that state’s ban on just about all abortion procedures sought after 15 weeks.

Petitioners in the case at issue, Thomas Dobbs v. Jackson Women’s Health, are seeking resolution of claimed ambiguities in the court’s prior rulings as to the point in the gestational process at which fetal viability begins. The statute to be reviewed would prohibit abortions after 15 weeks unless profound fetal abnormality was detected, or a medical emergency threatened the mother’s life.

The abortion clinic respondents in the case counter with the argument that viability prior to 15 weeks gestation is an impossibility, and that 24 weeks is the proper threshold for assessing the ability to survive outside the womb and is the standard framework that has emerged from precedent going all the way back to Roe.

John Bursch of Alliance Defending Freedom has argued against the continuation of such an interpretation, saying earlier this year, “Thanks to amazing progress in scientific research and medical technology, the concept of ‘viability’ is an ever-moving target as younger children have survived and thrived after pre-term birth,” adding:

But ‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence. The high court should take this important opportunity to resolve the conflicts between its previous rulings and affirm the constitutionality of Mississippi’s law.

The high court has declined on numerous other occasions the opportunity to hear appeals centered on so-called pre-viability abortion bans such as Mississippi’s. However, given the conservative majority now comprising the panel resulting from three successful nominations made during the tenure of former President Donald Trump, the court may now be poised to effect a major shift in this critical area of the law.