By Dave Andrusko
A coalition of 24 state attorneys general, led by Texas attorney general Ken Paxton, encouraged the Supreme Court in an amicus brief filed last week to use Mississippi’s Gestation Age Act to overturn Roe v. Wade, arguing that “[t]he Constitution does not include a right to abortion, and there is no history or tradition of protecting such a right.”
The High Court agreed to hear oral arguments in Dobbs v. Jackson Women’s Health Organization this fall and will specifically address the question “whether all pre-viability prohibitions on elective abortion are unconstitutional.” Mississippi’s 2018 law prohibits virtually all abortions after the 15th week.
Kentucky Attorney General Daniel Cameron said, “The Commonwealth has a paramount interest in protecting unborn life, and Kentucky regularly acts on that interest by passing laws that protect the unborn and maternal health, reaffirm the dignity of human life, and protect the integrity of the medical profession.”
Cameron explained that “Much like Mississippi’s 15-week law, Kentucky’s laws are often tied up for years in court challenges by abortion providers. The notion of a constitutional right to an abortion is a creation of the courts and has no basis in our Constitution. This case gives the high court the chance to correct this profound error by reconsidering Roe v. Wade and returning the issue to the states as required by the Constitution.”
The brief submitted by the 24 attorneys general cuts right to the chase. A decision wrongly decided from the beginning, the High Court “has propounded a constitutional law of abortion for half a century, and no one can describe it with any certainty. Because the purported right to abortion lacks any textual or historical foundation, it is defined only by the Court’s constantly changing opinions.”
In a word, “Abortion is a ‘right’ in search of a constitutional home.”
This Court invites implacable challengers through a jurisprudence filled with abortion-specific exceptions to traditional legal doctrines. These ever-multiplying exceptions, from standing at the beginning of a case to res judicata following its conclusion, enable unprincipled legal innovations by abortion advocates and destabilize generally applicable doctrines for everyone else. As a result, Amici States have little on which they can rely when defending their abortion laws in court. Indeed, when it comes to abortion, the only constant is change–to the constitutional test and established rules that might otherwise hinder a plaintiff’s suit.
This challenge to Mississippi’s 15-week law presents the Court with an opportunity to remedy those problems by reconsidering and overruling their source—Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Unlawful from the day each was decided, both have kept Amici States in continual litigation as the Court changes the constitutional test and rules.
The time has come to return the question of abortion to where it belongs—with the States.
Thirty one pages later, the amicus conclusion is straightforward:
As Justice Thomas has stated [in another case], the Court “cannot continue blinking the reality of what [it] has wrought.” The Court’s abortion precedent is erroneous, inconsistent, uneven, and unreliable. Traditional stare decisis principles cannot save it. Roe and Casey should be overruled.
The 24 states include the attorneys general of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas Utah, West Virginia, and Wyoming.