More than 200 members of Congress have signed a legal brief asking the U.S. Supreme Court to overturn the landmark Roe v. Wade decision that legalized abortion nationwide, arguing it set up an unworkable and “haphazard” standard for lower courts.
The brief was signed by 207 Senators and Representatives, including a dozen female members. Most who signed the brief are Republicans, although two (Reps. Daniel Lipinski of Illinois and Collin C. Peterson of Minnesota) are Democrats.
The Jan. 2 brief asks the Supreme Court to uphold a 2014 Louisiana law that requires abortion doctors to have admitting privileges at a hospital within 30 miles of the clinic. The court will hear oral arguments March 4.
The Fifth Circuit upheld the law in a 2-1 decision.
“The Fifth Circuit labored to do the best it could with the vague and opaque ‘undue burden’ standard on which the Court has relied since Casey,” the brief says, referencing a 1992 decision, Planned Parenthood v. Casey, that declared abortion restrictions unconstitutional if they placed an “undue burden” on a woman.
“[The members of Congress] 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 and the need for the Court to take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”
Roe v. Wade’s “jurisprudence has been haphazard from the beginning,” the brief asserts. Furthermore, the briefs says, the high court should not be hesitant to overturn precedent.
“The Court has exercised that judgment to overrule precedent in over 230 cases throughout its history,” the brief says. “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 brief also notes that the Supreme Court itself has struggled to follow the logic of Roe and Casey. The high court overturned a partial-birth abortion ban in 2000, only to uphold one in 2006, the brief notes.
“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,” the brief says. “Casey clearly did not settle the abortion issue, and it is time for the Court to take it up again.”
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.