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More Than 200 Members Of Congress Asked The Supreme Court To Consider Overturning Roe V. Wade

The members, including two Democrats, wrote in a brief that the national right to abortion is unworkable ahead of a major abortion rights case.

Last updated on January 2, 2020, at 4:48 p.m. ET

Posted on January 2, 2020, at 4:46 p.m. ET

Andrew Caballero-Reynolds / Getty Images

WASHINGTON — Two-hundred seven members of Congress asked the Supreme Court Thursday to consider overturning Roe v. Wade, the landmark decision that legalized abortion nationwide.

The members filed an amicus brief with the court on behalf of the defendant in June Medical Services v. Gee, a case considering the legality of a 2014 Louisiana law that requires doctors performing abortions in the state to have admitting privileges at a nearby hospital. Opponents of the law say the requirement proves impossible in rural areas far from hospitals, and in cases where the nearest hospital is Catholic and won’t grant the privileges, and if it goes into effect, it will shut down every abortion clinic in Louisiana.

In the brief, the members argue that the national right to an abortion is unworkable. It was signed by 39 Republican senators and 168 members of the House of Representatives — including two Democrats: Rep. Dan Lipinski of Illinois, and Collin Peterson of Minnesota.

The Louisiana law is nearly identical to a Texas law the Supreme Court ruled against in the 2016 case Whole Woman’s Health v. Hellerstedt, declaring that it placed an “undue burden” on patients’ access to abortion and was therefore unconstitutional. That phrase has been used by the Supreme Court in past rulings like the 1992 case Planned Parenthood v. Casey to determine which laws violate Roe v. Wade. The members also argued in the brief that Casey should be overturned.

Before the Supreme Court took up June Medical Services v. Gee, the 5th Circuit Court of Appeals ruled that the Louisiana law did not violate the Constitution and should be allowed to go into effect. The Supreme Court then filed an emergency stay to prevent the law from taking effect until the high court makes its official ruling. The justices will hear arguments in the case this spring.

“The Fifth Circuit’s struggle to ... 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 amicus brief from members of Congress states.

As is standard for most cases challenging laws restricting abortion, the Lousiana lawsuit was originally filed by June Medical Services, a Louisiana abortion clinic, on behalf of its patients. The members argued in the brief that June Medical Services, as well as abortion clinics more generally, should not be allowed to file suits on behalf of their patients for laws regulating abortion providers, as the laws are written to protect the patients from the actions of the clinics.

“There is an inherent conflict of interest between abortion providers and their patients regarding state health and safety regulations,” the brief reads.

The brief includes a bullet-pointed list of regulation violations committed by June Medical Services since 2005 and documented by the Louisiana Department of Health. These include paperwork issues, records of “unsanitary, expired, missing, or improperly stored instruments, medications, and medical supplies,” the brief reads, and cases of clinic workers not being fully credentialed for each action, including supplying prescriptions and administering IVs.

Abortion advocates argue in the case that the scrutiny of abortion clinics in states with governments that are hostile to abortion is above average and that medical clinics of every kind face similar issues that often go unrecorded.

In statements responding to the brief, both Planned Parenthood and NARAL Pro-Choice America called out Lipinski for joining the almost entirely Republican list of members of Congress endorsing the brief. Lipinski, one of the last anti-abortion Democrats in Congress, nearly lost a primary race against Marie Newman for his Illinois seat last year, and she is running against him again in 2020. Both Planned Parenthood and NARAL ignored the other Democrat who signed the brief, Peterson, whose seat is being eyed by the GOP in their statements.

“Among the list of anti-choice lawmakers who signed onto the amicus brief is Dan Lipinski, an anti-choice Democrat representing Illinois’ 3rd Congressional District who aligns with [President Donald] Trump and refuses to stand up for fundamental values and key priorities such as reproductive freedom, the Affordable Care Act, and economic opportunity for every family,” NARAL wrote in their emailed statement Thursday afternoon.

“These anti-abortion politicians are making it very clear — they want the Supreme Court to effectively ban abortion, precedent be damned,” Samuel Lau, director of federal advocacy media for Planned Parenthood, wrote in his statement. “To the members of Congress who signed on to this amicus brief: Brace yourselves for the consequences you will face at the ballot box in November.”

June Medical Services v. Gee will be the first abortion-related case reviewed by the Supreme Court with its newest member appointed by President Donald Trump, Justice Brett Kavanaugh. The case will be heard on March 4.

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