Republican Sens. Ted Cruz of Texas, Josh Hawley of Missouri, and Mike Lee of Utah submitted an amicus brief Monday calling on the Supreme Court to overrule its prior decisions in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) that upheld a supposed right to kill a baby in his mother’s womb.
The amicus brief was filed in support of the petitioners in Dobbs v. Jackson Women’s Health Organization, a pending case challenging a 2018 Mississippi law limiting abortions after 15 weeks. The limited question pertains to “whether all pre-viability prohibitions on elective abortions are unconstitutional,” as noted by Concerned Women for America.
“This status quo is untenable,” the senators write. “Where a legal doctrine has repeatedly failed to offer clarity—where it has proved unworkable in the past and will likely engender unpredictable consequences in the future—its existence constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature. Roe and Casey should be overruled, and the question of abortion legislation should be returned to the states.”
Cruz, Hawley, and Lee ask the court to re-evaluate the boundaries of the legal doctrine of stare decisis, which grants a higher authority to precedent than to alignment with the Constitution and law, and has been notably used to preserve Roe and other notable cases. The senators note that the two pro-abortion cases have crafted “a history of confusion in the lower courts, [and] an unstable pattern of Supreme Court decisions, and a persistent lack of judicially manageable standards.”
Mississippi Attorney General Lynn Fitch, a Republican, called on the Supreme Court last week to overturn Roe after reviewing the state’s current law through Dobbs, also filing a brief.
“A lot has changed in the five decades since Roe, yet it shackles states to an outdated view of facts and prevents them from protecting legitimate interests in the context of current science and culture,” Fitch said. “In my brief, I ask the court to set things right and return abortion policy to the political branches where debate can flourish and the will of the people can be discerned at the ballot box.”