Republicans Urge Supreme Court to Revisit Stance on Abortion

WASHINGTON (CN) — In a push for the Supreme Court to overturn Roe v. Wade, more than 200 Republican members of Congress filed an amicus brief urging the high court to reconsider the landmark case that legalized abortion nationwide.

Protesters on both sides of the abortion issue gather outside the Supreme Court in January 2018. (AP Photo/Susan Walsh)

A cohort of 39 senators and 168 members of the House of Representatives, almost all Republicans with the exception of two Democrats, filed the brief Thursday in a Louisiana abortion case, arguing jurisprudence for the 1973 Supreme Court ruling was haphazard from the beginning.

Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it. This ambiguity was compounded by the Court’s concluding ‘summary’ of the Roe holding, which nowhere mentioned abortion as a fundamental right, strict scrutiny analysis, or the need to ‘narrowly tailor’ regulations,” the lawmakers argue in the brief.

Senator Dianne Feinstein, D-Calif., said in a statement Friday she was dismayed by Republicans calling for the court to overturn Roe, calling it a cornerstone of women’s rights and well-settled law.

“Adherence to precedent and the rule of law is what gives our legal system legitimacy. All senators should support this principle, regardless of their personal views. I urge the Supreme Court to reject the arguments in the Republicans’ amicus brief and continue upholding Roe,” Feinstein said.

The lawmakers go on to point out that two of the seven justices who ruled with the majority in Roe have since publicly expressed a change of opinion, including Justice Lewis Powell, who called it the worst opinion he ever joined.

“Virtually every abortion decision since has been closely divided,” the brief states.

In asking the Supreme Court to reconsider Roe, the coalition of lawmakers ask the same for Planned Parenthood v. Casey, which in 1992 redefined several provisions outlined by Roe.

“These incessant retrenchments show that Roe has been substantially undermined by subsequent authority, a principal factor the Court considers when deciding whether to overrule precedent. Casey clearly did not settle the abortion issue, and it is time for the Court to take it up again,” according to the brief.

Running through the judicial history that followed in the four decades since the court passed down Roe, the brief says the hotly debated ruling’s jurisprudence is characterized by “Delphic confusion and protean change.”

The lawmakers filed the brief in support of a Louisiana law passed in 2014 requiring physicians performing abortions to have active admitting privileges at a hospital located within 30 miles from their clinic.

Several abortion clinics challenged the law and took the legal fight to the Supreme Court after the New Orleans-based Fifth Circuit upheld the law and denied a petition for a rehearing en banc.

The brief argues that the appeal court’s inability to determine if the law poses an undue burden on abortion clinics — a standard set by Casey that the lawmakers call “ vague and opaque” — is evidence of the “unworkability” of the right to abortion mandated by Roe.

The Supreme Court agreed in October to take up the Louisiana case, June Medical Services LLC v. Gee. It will hear oral arguments in March.

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