Law & the Courts

Republican Senator Trio Demands Supreme Court Overturn Roe v. Wade

The U.S. Supreme Court building in Washington, D.C., April 15, 2020 (Jonathan Ernst/Reuters)

In an amicus brief submitted Monday, prominent Republican lawmakers Josh Hawley, Mike Lee, and Ted Cruz urged the Supreme Court to use an upcoming Mississippi case on the docket as a means to reverse the Roe v. Wade decision that  legalized abortion on a sweeping national scale.

The Senators, writing in support of the petitioners in Dobbs v. Jackson Women’s Health Organization, appealed to their Article I obligation to serve state interests, “such as the protection of prenatal life.” They noted their inability to currently do so owing to what they called an inconsistent, unworkable legal framework on the books for defining constitutional rights.

They asked the high court to reassess its commitment in abortion cases to stare decisis, the legal doctrine that says litigation should defer to precedent and that has for years preserved Roe v. Wade and related rulings despite their shaky legal foundations — namely the “right to privacy” innovation that has no explicit mention in the Constitution. The senators argued that stare decisis should not protect erroneous decisions from being overturned.

“Where prior precedents are demonstrably unworkable, it is appropriate for the Court to reconsider them,” the brief read. The legislators suggested that Roe as well as the court’s 1992 decision in Planned Parenthood v. Casey are unworkable precedents because they’ve generated “a history of confusion in the lower courts, an unstable pattern of Supreme Court decisions, and a persistent lack of judicially manageable standards.”

The trio stated that Casey “and whatever remains of Roe should now be overruled, and the question of abortion legislation returned to the political branches and to the people.” Proponents of nixing Roe have long argued that the issue should be decided at the state level by individual legislatures rather than via Supreme Court ruling or federal mandate.

The Republican group’s brief comes after after Mississippi’s attorney general asked the Supreme Court bench last week to overturn Roe when it reviews the Mississippi law at the heart of Dobbs. This law prohibits abortions after 15 weeks of gestation, one accepted benchmark for fetal viability. The opening brief from Mississippi officials in Dobbs said, “The stare decisis case for overruling Roe and Casey is overwhelming. Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”

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