Over 200 members of Congress ask Supreme Court to 'reconsider' Roe v. Wade

The lawmakers, most of them Republican men, asked the court to uphold a lower court ruling in favor of a Louisiana abortion law.
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Abortion rights activists rallied in front of the Supreme Court in Washington in May 2019.Andrew Caballero-Reynolds / AFP - Getty Images file

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By Dartunorro Clark

Over 200 members of Congress, most of them Republican men, asked the Supreme Court on Thursday to consider overturning two landmark abortion rights cases ahead of oral arguments in a Louisiana abortion case scheduled for March.

The lawmakers — 38 senators and 168 House members — filed an amicus brief urging the court to "reconsider" the landmark 1973 Roe v. Wade decision legalizing abortions across the nation, as well as the court's 1992 ruling in Planned Parenthood v. Casey, which upheld Roe v. Wade and barred states from placing an "undue burden" on access to abortions. Two Democrats, Reps. Daniel Lipinski of Illinois and Collin Peterson of Minnesota, joined the brief.

At issue is Louisiana's Unsafe Abortion Protection Act, which was passed in 2014 and requires any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. The law is not currently in effect.

A federal district judge blocked the law in 2017. But in 2018, the 5th U.S. Circuit Court of Appeals upheld it, arguing that the law would not impose an "undue burden," which has been the high court's key legal test for challenges to abortion restrictions. The Supreme Court reimposed the stay in February to weigh its constitutionality, and it said Tuesday that it would hear the case on March 4.

The lawmakers argued that "the Fifth Circuit's struggle to define the appropriate 'large fraction' or determine what 'burden' on abortion access is 'undue' illustrates the unworkability of the 'right to abortion' found in Roe v. Wade ... and the need for the Court to again take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled."

Supporters of the Louisiana law argue that it would help with continuity of care in emergencies, but critics argue that it would severely restrict access to abortions, making it a ban in effect.

The clinic and two Louisiana doctors who challenged the law argued that it was identical to a Texas law that the Supreme Court struck down in 2016, saying it imposed an obstacle on women seeking abortion services without providing any medical benefits.

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The lawmakers argue that in the 2016 Texas case, the court "created an overly subjective 'balancing' test, leading to confusion among Congress and state legislatures alike as to which laws might withstand constitutional scrutiny."

The lawmakers asked the court to uphold the ruling from the 5th Circuit court, which argued in its 2018 majority opinion that the Louisiana law "does not impose a substantial burden on a large fraction of women."

Thirteen Republicans did not sign the brief, including eight who are up for re-election this year. They include Senate Majority Leader Mitch McConnell of Kentucky and Sens. Susan Collins of Maine, Lindsey Graham of South Carolina, Dan Sullivan of Arkansas, Martha McSally of Arizona, Shelley Moore Capito of West Virginia, Cory Gardner of Colorado and David Perdue of Georgia.