U.S. Supreme Court, Dec. 2, 2019. Credit: Robin Bravender
Gov. Ron DeSantis has joined with the governors of 11 other states in asking the U.S. Supreme Court to overrule Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, which established and maintained the right to abortion in the United States.
The governors filed a friend-of-the-court brief in support of a 2018 Mississippi law banning abortions after 15 weeks. The filing doesn’t make these states party to Mississippi’s defense of its statute, but voices their legal support for that state’s case.
Roe limits infringement of abortion rights until the third trimester. Overturning the precedent would return the country to the status quo that existed before the 1973 ruling, with each state deciding for itself whether to restrict abortion rights and to what extent.
The brief argues that would “lower the proverbial temperature” on a thorny ethical problem and allow experimentation by states.
“By de-constitutionalizing abortion, the court can let democracy work again on this issue. A state may permit abortion. A state may ban abortion. A state may chart a middle ground. Whatever a state decides, that decision will be made like most important questions in our democracy: by citizens trying to persuade one another and then voting,” the brief says.
Attorney General Ashley Moody’s name appears nowhere on the pleading. DeSantis, a Republican supporter of Donald Trump, has been raising his national profile while running for reelection next year and potentially for president in 2024, but hasn’t been particularly visible on the abortion issue until now.
State Commissioner of Agriculture and Consumer Services Nikki Fried, one of two Democrats vying to oppose DeSantis next year, denounced his involvement in the case on her Twitter feed.
“After suppressing voting rights and criminalizing protests, @GovRonDeSantis wants to overturn Roe v. Wade. I’m the only one running for governor who’s never wavered in support of our right to chose. I’ll fight like hell to stop this,” she wrote.
Mississippi passed its law in 2018, one of a number of states testing an ever-more-conservative Supreme Court’s willingness to overturn its abortion precedents. Until Amy Coney Barrett joined the court last October, the justices mostly declined to do so.
In fact, Mississippi asked the court to review lower court rulings striking down the law as long ago as March 2020, but the court agreed to grant a hearing only in May of this year. In recent days, the case has attracted dozens of friend-of-the-court briefs by foes and friends of abortion rights.
The Roe and Casey precedents reflect judicial activism in defiance of the original intent of the Fourteenth Amendment, which guarantees due process and equal protection of the law, the states’ brief argues.
“The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the states. Returning to the states the plenary authority to regulate abortion without federal interference would restore the proper (i.e., constitutional) relationship between the states and the federal government,” the brief argues.
“It also would produce positive results, including letting the democratic process work as intended, deescalating tensions on this divisive topic, and allowing the states to serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge,” it continues.
In addition to Florida, the other states signing onto the brief were Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Missouri, Montana, Oklahoma, South Carolina, and Texas.
In Roe, decided 7-2, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment implied a fundamental right to privacy that protects women’s right to terminate pregnancies, although a state maintains a balancing interest in protecting fetuses following viability — meaning their ability to survive outside the womb.
In Casey, decided by a 5-4 court in 1992, the justices let Roe stand in principle but ruled that states can erect barriers to access as long as they don’t impose any “undue burden,” meaning a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Conservative states have been attempting for decades to whittle away federal protections for abortion rights with varying levels of success. Many hope the Trump Supreme Court, where conservatives outnumber liberals and moderates by 6-3, they hope the high court might finally be ready to sweep its abortion precedents away.
As evidence, the brief argues that at least 36 states and territories limited or banned abortion at the time the Fourteenth Amendment was ratified in 1868, and additional states did so subsequently.
The document casts abortion rights in context with other alleged federal impingements of states’ rights under the Commerce Clause, including by the Violence Against Women Act and the Gun-Free School Zone Act.
Regarding abortion, “no longer can states regulate abortion as they, through their peoples’ representatives, deem appropriate. Instead, their regulation of abortion must fit within the narrow confines that the court left open to them in Casey,” the brief argues.
“Just as Congress has gone beyond its constitutional limits in legislating, the court strayed beyond the Constitution in Casey and upset the delicate balance the Constitution strikes between those issues that are committed to the federal government and those issues that remain reserved to the States.”
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