Over 200 members of Congress asked the Supreme Court to consider overturning Roe v. Wade, which guarantees the right to an abortion, in a brief urging the court to uphold a Louisiana law severely restricting abortion.
The 39 senators and 168 House members submitted the amicus brief in the case of June Medical Services LLC v. Gee, which the Supreme Court will consider this spring.
June Medical Services challenged a Louisiana law, passed in 2014 and currently not in effect, which required doctors performing abortions to have admitting privileges at a local hospital within 30 miles of the facility where the abortion is performed. If the law is allowed to be implemented, all of Louisiana’s abortion clinics would close, as first reported in October by CBS News.
The federal district court issued a preliminary injunction on the law, which was lifted by the 5th Circuit Court on appeal. The Supreme Court restored the injunction.
In 2016, while the lawsuit by June Medical Services was ongoing, the Supreme Court decided in Whole Woman’s Health v. Hellerstedt that a similar Texas law was unconstitutional.
Lawmakers argue in the brief that the Supreme Court should uphold the 5th Circuit decision, which found that the law did not place an “undue burden” on women seeking an abortion.
In their brief, the members of Congress also maintain that Whole Woman’s Health v. Hellerstedt led to “confusion among Congress and state legislatures alike as to which laws might withstand constitutional scrutiny,” and they say that the decision by the 5th Circuit court should be upheld.
The brief also says that the famous 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the right to abortion, caused confusion with its new “undue burden” standard. This standard means that state laws that place an “undue burden” on a “large fraction” of women seeking an abortion are unconstitutional. The court said that an “undue burden” exists if there is a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
“Amici respectfully suggest 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,” the brief says. “Amici” refers to the signatories of the brief.
All 39 of the senators who signed the brief were Republicans. Another Republican senator, Josh Hawley, had previously submitted a separate amicus brief. Only two of the 168 House members who signed the brief were Democrats — Dan Lipinski and Collin Peterson. Lipinski has been singled out by abortion rights groups for his opposition to abortion, and is facing a primary from the left.
Of the 13 Republican senators who did not sign the brief, eight are up for reelection in 2020: Susan Collins, Dan Sullivan, Martha McSally, Shelley Moore Capito, Cory Gardner, Mitch McConnell, Lindsey Graham and David Perdue. Collins, McSally and Gardner in particular are considered vulnerable to being unseated by Democrats.