Three Republican senators have filed an amicus brief urging the Supreme Court to return the power to make legislation concerning abortion to the states by overturning the historic 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey decision, The Epoch Times reported.
Sens. Josh Hawley of Missouri, Mike Lee of Utah, and Ted Cruz of Texas, said in the brief on Monday that Roe v. Wade’s approach "proved controversial, and conceptually flawed, from the outset," while the Parenthood v. Casey decision’s undue burden standard is ambiguous and has made it difficult for courts to consistently apply it, calling it "too subjective" and is "unworkable and unpredictable."
Roe v. Wade prohibits states from banning abortions prior to when the fetus is deemed "viable," with the ruling asserting that a woman has a constitutional right to an abortion in the "pre-viability" period and that state laws dealing with abortion would have to pass the strict scrutiny standard, the highest and most stringent standard of judicial review that courts use to determine the constitutionality of laws.
Planned Parenthood v. Casey reaffirmed Roe v. Wade, but replaced the strict scrutiny standard with an "undue burden" standard, meaning that states can pass laws regulating abortion unless doing so places "undue burden" on a woman’s ability to obtain an abortion.
The senators stressed in their brief that "nearly three decades on, the undue burden test has proved so murky that courts have repeatedly fallen back on the conflicting moral and jurisprudential intuitions that Casey purported to sideline."
The added that "this status quo is untenable. Where a legal doctrine has repeatedly failed to offer clarity - where it has proved unworkable in the past and will likely engender unpredictable consequences in the future - its existence constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature."
The filing comes on the heels of the brief by the Mississippi attorney general, Lynn Fitch, last week in which he also urged the justices to overrule Roe when the justices review the state’s ban on virtually all abortions after 15 weeks of pregnancy, The Hill reported.
This ongoing case involving the state of Mississippi has pro-life advocates hopeful for a sympathetic audience with a Supreme Court bench that now includes six conservative justices.
In 2018, Mississippi’s governor signed into law a ban on abortion at 15 weeks of gestation, which was challenged by the Jackson Women’s Health Organization and was blocked from taking effect by a federal judge, according to The Epoch Times.
The judge later that year struck down the law, declaring it unconstitutional. Mississippi appealed that decision, but the Fifth Circuit Court of Appeals upheld the decision in 2019, and last year the appellate court denied a request for a rehearing.
Mississippi then requested the Supreme Court to take up the case, which it agreed to do in May, and the case is expected to be argued when the court’s term starts in October.
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