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WASHINGTON, D.C., July 27, 2021 (LifeSiteNews) – Republican Sens. Ted Cruz of Texas, Josh Hawley of Missouri, and Mike Lee of Utah filed an amicus brief Monday adding their voices to those calling on the U.S. Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey in its upcoming review of Mississippi’s 15-week abortion ban.
The Court announced in May that it would be hearing Dobbs v. Jackson Women’s Health Organization, which concerns Mississippi’s HB 1510 law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. After its enactment in 2019, the Fifth Circuit Court of Appeals deemed it unconstitutional because of an “unbroken line dating to Roe v. Wade,” the 1973 ruling that imposed on all 50 states a “right” to pre-viability abortion.
The attorneys general of Mississippi and Missouri have asked the Court to directly overturn Roe, and now Cruz, Hawley, and Lee – all three of whom are attorneys – are doing so as well. Their brief begins by arguing that stare decisis, the legal doctrine under which a past ruling’s status as precedent gives it a degree of weight independent of whether it was rightly decided, is “not absolute.”
“As the Court has repeatedly explained over the course of many decades, decisions that have proven unworkable — by producing confusion in the lower courts, failing to result in judicially manageable standards, and proving doctrinally unstable — are prime candidates for reversal,” the senators explained. “This is particularly true where, as here, the underlying decision is egregiously wrong and reliance interests are minimal. And of course, stare decisis interests are at their weakest in constitutional cases.”
The 1992 Casey decision, which opened the door to some abortion regulations while reaffirming the “right” to abort itself by introducing the test of whether a regulation imposes an “undue burden” on the ability to exercise that “right,” has “proven persistently unworkable” by “produc[ing] inconsistent outcomes lacking an intelligible principle” while “ fail[ing] to settle the legal controversies it originally sparked,” they argued.
This Court has revisited — and revised — the undue burden standard multiple times in recent years, even as the Court’s precedents have become more unpredictable,” the brief said. “This is not surprising: the undue burden standard is untethered to the Constitution’s text, history, and structure; it lacks foundation even in this Court’s precedents.” Such a doctrine “constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature.”
Casey’s “undue burden” standard and “whatever remains of Roe should now be overruled, and the question of abortion legislation returned to the political branches and to the people,” the Republican lawmakers declare.
It remains to be seen whether the court’s Republican-appointed majority will go as far as pro-lifers hope. Only Justice Clarence Thomas is explicitly on the record as anti-Roe, and only he and Justice Samuel Alito have established consistently conservative records over a significant period of time. Many have placed a great deal of hope with former President Donald Trump’s most recent appointees, though conservatives have also been alarmed by Justice Neil Gorsuch voting to redefine “sex” in federal civil rights law last year, and Justices Brett Kavanaugh and Amy Coney Barrett voting not to take up several cases of concern to religious, conservative, and/or pro-life Americans.