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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowAll but one of Indiana’s federal GOP lawmakers have joined a coalition supporting Mississippi in what some say is potentially the most significant abortion-rights case to go before the U.S. Supreme Court in years.
More than 200 members of Congress signed on to the amicus brief filed July 29 in Dobbs, et al. v. Jackson Women’s Health Organization, et al., 19-1392. The high court granted cert to the Mississippi case to answer one question: whether all previability prohibitions on elective abortions are unconstitutional.
The Indiana Republican delegation of Sens. Todd Young and Mike Braun and Reps. Jim Baird, Jim Banks, Larry Bucshon, Greg Pence, Victoria Spartz and Jackie Walorski are part of a group of lawmakers asking the high court to reconsider, and possibly overrule, landmark abortion precedent including Roe v. Wade. Indiana Republican Congressman Trey Hollingsworth did not sign on to the amicus brief, nor did the state’s two Democratic representatives, Andre Carson and Frank J. Mrvan.
The Mississippi law in question would allow abortions after 15 weeks’ gestation only in cases of medical emergencies or severe fetal abnormality. Lower courts struck down that previability regulation, but the amicus brief argues fetal viability was never intended to be a demarcation.
“The Members of Congress urge the Court to answer ‘No’ and uphold Mississippi’s law, or return the case to the lower courts for consideration on a full evidentiary record of the crucial interests the State relied upon in determining to regulate the availability of a late-term abortion,” the lawmakers wrote, asking the court to answer “no” to the question of whether previability abortion bans are always unconstitutional.
According to the congressional amici, the viability line as laid out in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), is “arbitrary.” Viability was addressed in both Roe and Casey — each time as dicta, they claim.
“Casey did not supply the rationale for the viability rule that Roe left out. Instead, the plurality offered two reasons for retaining the viability rule: a simple invocation of stare decisis and reiterating the syllogism of an ‘independent existence’ of the infant that Roe offered. Casey never offered ‘a principled explanation of why the “possibility of maintaining and nourishing a life outside the womb” changes the strength of the state’s interest,’” according to the brief.
Even so, the lawmakers continue, Casey has repeatedly been used to strike down previability abortion regulations before a full record can be developed.
Among the cases cited was Planned Parenthood of Indiana and Kentucky, Inc., et al. v. Commissioner of the Indiana State Department of Health, et al., 17-3163, in which a split 7th Circuit Court of Appeals struck down Indiana’s ban on abortions based on fetal gender, race or abnormality. The majority in that decision found the abortion regulation violated both Roe and Casey, but Senior Judge Daniel Manion dissented and called on the Supreme Court to revisit those precedents.
The U.S. Supreme Court did consider that case but ultimately upheld the injunction against the regulation. A separate Indiana law regulating the disposal of fetal remains, however, was reinstated.
When such regulations are struck down on a previability basis, the lawmakers contend, judges are undertaking a one-sided analysis.
“Because trial courts understand viability as the categorical line before which no restriction on abortion can be constitutional, they allow no discovery on, or the introduction of evidence about, the State’s purpose or interest in regulating previability abortions. Rather, discovery is limited to the issue of viability,” the brief states. “However, the courts still allow abortion advocates to bring evidence supporting their interests. This one-sided approach is problematic … .”
The amici pointed to the case of Gonzales v. Carhart, 550 U.S. 124 (2007), where the federal Partial-Birth Abortion Act was upheld “without regard for the viability line.”
“Amici suggest that the Court’s analysis of Congress’ federal Partial-Birth Abortion Act in Gonzales is instructive, insofar as the record created during trial and discovery resulted in a well-informed opinion that balanced all interests,” the lawmakers wrote. “Gonzales addressed many of the same claims made by Respondents herein, and the interests of the State Petitioner, without regard to the viability line, in spite of the fact that the prohibition in question applied before and after viability.
“If the Court construes Roe and Casey as prohibiting the assertion of vital state interests in regulating abortion — such as protecting women from dangerous late-term abortions, safeguarding persons in the womb from being aborted based on Down syndrome or genetic anomaly, and protecting the public from barbaric medical procedures — these precedents should be reconsidered and, where necessary, wholly or partially overruled.”
The high court’s decision to hear Dobbs is regarded by many as evidence of former President Donald Trump’s influence on the court following his successful nominations of three conservative justices.
Abortion rights advocates have said it’s “concerning” that the justices would grant cert to the case. Even so, they say they don’t expect the decadeslong abortion precedent stemming from Roe to be thrown out.
The full amicus brief, submitted by lawyers with Americans United for Life, can be read here.
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