My Bloomberg Opinion column the other day discussed a brief to the Supreme Court from members of Congress in a case concerning abortion regulations in Louisiana. The brief suggests that the Court reconsider its key abortion precedents, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
I didn’t go into another brief filed in the case: the one from Solicitor General Noel Francisco for the Trump administration. It does not criticize either Roe or Casey or suggest their overturning. Its concern, rather, is with Whole Woman’s Health v. Hellerstedt (2016), which moved the law in an even more pro-abortion direction. The administration urges that the 2016 decision either be read narrowly, modified, or overruled in order to uphold the Louisiana law.
That restraint is defensible on prudential grounds, as was the similar restraint shown by the George W. Bush administration (but not by its two Republican predecessors) in abortion litigation. It seems to me, though, to be a missed opportunity.