It’s Happening: Congressional Lawmakers Ask Supreme Court to End Legal Abortion

Associate Justice Brett Kavanaugh and Chief Justice John Roberts (Photo by Fred Schilling, Collection of the Supreme Court of the United States)

More than 200 members of Congress, along with the largest anti-choice advocacy group in the United States, filed amicus briefs Thursday urging the U.S. Supreme Court to use this spring’s abortion rights case to end legal abortion.

Americans United for Life (AUL) and conservative lawmakers called on the Court to revisit and overturn Roe v. Wade and Planned Parenthood v. Casey at its “earliest opportunity,” describing the historic decisions as “unworkable” and arguing that the U.S. Constitution does not recognize the right to an abortion. AUL and anti-choice lawmakers made these arguments in amicus briefs filed in June Medical Services, LLC v. Gee, a case challenging both a Louisiana admitting privileges requirement and the ability of providers to challenge certain types of abortion restrictions on behalf of their patients.

The Roberts Court will hear arguments in the case in March. A decision is expected this summer.

Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it,” the lawmakers argue in their brief. “Casey clearly did not settle the abortion issue, and it is time for the Court to take it up again.”

Roe’s assumptions have changed considerably since 1973,” AUL’s brief argues. “Biological and technological developments, including the development of in vitro fertilization since the 1970s, have reinforced the medical conclusion of the 19th century that the life of the individual human being begins at conception.”

“Since abortion is not a right derived from the federal constitution, it is a matter for the people to decide through the democratic process in the States,” the AUL brief continues.

Abortion rights advocates said the appeal to the Supreme Court was the clearest sign yet that anti-choice legislators and organizations were eager to use the Court’s conservative majority to undo longstanding constitutional precedent.

“The anti-choice movement is no longer trying to hide their real agenda. They are gunning to end Roe, criminalize abortion and punish women,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement. “If it wasn’t clear why we fought like hell to stop Brett Kavanaugh’s confirmation before, it should be crystal clear now. They gamed the system and stacked the Supreme Court just for this moment. But we will not back down. We will hold these anti-choice politicians accountable for working to rip away our reproductive freedom.”

June Medical Services is the first abortion rights case the Court will hear with its newly minted and solidly anti-choice conservative majority. Abortion rights opponents are seizing the moment to advance their most radically anti-choice positions. Those arguments include claiming that state safe-haven laws that allow infants to be surrendered by parents to social services without fear of prosecution or laws that protect people from being fired for becoming pregnant negates the need for legal abortion.

While those arguments are bad, it’s astonishing for lawmakers and advocacy organizations to ask the Court to revisit and overturn Roe and Casey in June Medical Services. That’s because June Medical Services doesn’t directly call those cases, and the fundamental right to an abortion, into question. At issue in June Medical Services is whether Louisiana’s admitting privileges law unduly burdens abortion rights and whether providers can sue to block abortion restrictions designed to protect the health and safety of their patients. That’s it. It’s even more astonishing that lawmakers and anti-choice activists are making those arguments in June Medical Services considering that this is an election year and conventional wisdom suggests the last thing conservative lawmakers nervous about electoral prospects want is a national fight about overturning Roe v. Wade.

Except that when it comes to abortion rights and the courts, nothing the right does is surprising anymore, and conventional wisdom no longer applies. President Trump campaigned on appointing judges committed to overturning Roe v. Wade and has made good on that promise.

With the help of Republicans in the U.S. Senate, 1 in 4 federal appeals court judges is a Trump appointee. The federal judiciary has been remade in conservatives’ image, and that image is decidedly hostile to abortion rights and overtly political in its drive to upend them. Republicans have loudly and proudly proclaimed they are coming for abortion rights; there’s no longer any political need for them to pretend otherwise.

AUL acknowledges this fact in its brief: “The current presidential administration, as have numerous previous administrations, campaigned on and calls for the overruling of Roe. As demonstrated by the 2019 state legislative sessions, the increasing expectations—on both sides of the issue—is that the Court will eventually overturn Roe.”

In other words, according to AUL and conservative lawmakers, everyone expects the Roberts Court to end legal abortion eventually, so why wait when the Court could do so this summer in June Medical Services?

“As Roe, Casey, and Hellerstedt have shown, this Court cannot settle the abortion issue,” AUL’s brief continues. “Even if the Court unanimously reaffirmed Roe, it would merely preserve the legal schizophrenia that exists between the Court’s policy and state and federal law, and do nothing to change the basic social and legal factors that have made Roe immune to settlement.”

“The Court should reconsider Roe v. Wade at the earliest practical opportunity.”

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