Miss. urges SCOTUS to use abortion case to overturn Roe vs. Wade
WASHINGTON — Lawyers for Mississippi asked the Supreme Court on Thursday to overturn Roe vs. Wade and give state legislators the authority outlaw all abortions.
The justices in May agreed to hear the state’s appeal of a lower court’s invalidation of a Mississippi law that would forbid abortions after 15 weeks.
In their brief filed with the court Thursday, the state’s lawyers raised the stakes and argued the right to abortion set in 1973 should be repealed entirely.
They said that Roe was “egregiously wrong” as a matter of constitutional law and that it has proved to be “hopelessly unworkable” in practice. They pointed to the fact that more than a dozen conservative states like Mississippi want to outlaw most or all abortions.
“Under the Constitution, may a state prohibit elective abortions before viability? Yes,” state Attorney General Lynn Fitch wrote. “Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.”
Her far-reaching argument appeared tailored to reflect the last year’s change at the high court. There are now five conservatives appointed by Republican presidents who believe Roe vs. Wade was wrong.
In recent years, Chief Justice John G. Roberts Jr., the sixth conservative on the court, has taken a more cautious, hardto-predict approach on issues such as abortion. Two years ago, he cast a fifth vote to strike down a Louisiana law that strictly regulated abortion clinics. Previously he voted to uphold a similar law.
But since Justice Amy Coney Barrett was sworn in October to fill the seat of the late Justice Ruth Bader Ginsburg, the court has five conservatives who could move further and faster to overturn abortion rights than the chief justice may prefer.
Mississippi’s lawyers said that the justices have not been able to resolve the bitter divide over abortion and that state legislators could do it better.
“The workable approach to accommodating the competing interests here is to return the matter to legislators, not judges,” Fitch wrote. “Abortion policy is as suited to legislative judgment as it is unsuited to judicial refereeing. ... The task will be hard for legislators and the people too. But the Constitution leaves the task of debate and compromise to them.”
Nancy Northup, president of the Center for Reproductive Rights, expressed surprise at the state’s bold move.
“Mississippi has stunningly asked the Supreme Court to overturn Roe and every other abortion rights decision in the last five decades. Today’s brief reveals the extreme and regressive strategy, not just of this law, but of the avalanche of abortion bans and restrictions that are being passed across the country,” she said in a statement.