By Dave Andrusko
This week, NRL News Today will continue analyzing amicus briefs filed with the Supreme Court, including its own joint brief submitted with Louisiana Right to Life, that support Mississippi’s pro-life Gestational Age Act. With a few exceptions, the law, a challenge to which the Supreme Court will hear this fall, forbids abortions performed after the 15th week.
James Bopp, Jr., NRLC General Counsel, explained that the joint NRLC/Louisiana Right to Life amicus brief in Dobbs v. Jackson Women’s Health Organization “supports the overturning of Roe v. Wade and provides a legal framework that will lead directly to achieving that goal.”
Today’s overview is of the brief filed by South Carolina Governor Henry McMaster and eleven other governors [www.supremecourt.gov/DocketPDF/19/19-1392/185188/20210729091216198_19-1392%20Amicus%20Brief.pdf].
The eleven Republican governors are Kay Ivey of Alabama, Doug Ducey of Arizona, Asa Hutchinson of Arkansas, Ron DeSantis of Florida Brian K. Kemp of Georgia, Brad Little of Idaho, Kim Reynolds of Iowa, Mike Parson of Missouri, Greg Gianforte of Montana, J. Kevin Stitt of Oklahoma, and Greg Abbott of Texas.
As we customarily do, we’ll offer five highlights. (All internal citations are omitted for purposes of clarity.)
#1. “Justices on this Court and circuit court judges have consistently recognized that the original understanding of the Fourteenth Amendment’s Due Process Clause does not include any right to terminate the life of an unborn child. Indeed, none of this Court’s major abortion decisions—including Roe v. Wade, (1973), and Planned Parenthood of Southeast Pennsylvania v. Casey, claims otherwise. Nevertheless, half a century ago, this Court (without any consideration of the original meaning of the Fourteenth Amendment) found a constitutional right to abortion somewhere in the Constitution.”
There are practically countless criticisms of Roe v. Wade and its companion case, Doe v. Bolton. Near or at the top is the telling critique that the justices had to patch together penumbras and emanations to find a “right” to abortion heretofore lurking unbeknownst in the Constitution. Put another way, it’s results-driven jurisprudence: seven justices found what they wanted to find.
#2. Improper intrusion. The brief talks a great deal about what is summarized in these two sentences: “In perhaps no area of law is that judicial intrusion into State sovereignty greater than abortion. …The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the States. ”
The brief agrees with many others that abortion is an issue best returned to where it was prior to Roe and Doe—with the states. So doing “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.”
Building on these two foundational blocks…
#3. A misapplication of the 14th Amendment. The brief maintains
A review of the legal landscape from the late nineteenth century leads to the same conclusion that the [14th Amendment’s] Due Process Clause does not create or protect a right to abortion. Between the statutes cited by then-Justice Rehnquist in Roe and Justice Thomas in June Medical, at least thirty six States (some of which were still territories or, in the case of Hawaii, not yet even part of the United States) had statutes that limited, if not completely outlawed, abortion when the Fourteenth Amendment was ratified.
In addition to these three-quarters of States with statutory abortion regulations in effect in 1868 [when the 14th Amendment was adopted], other States adopted similar laws shortly after the Fourteenth Amendment’s ratification.
#4. The immense benefits of “de-constitutionalizing abortion.” By so doing
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.” Once voters cast their ballots, it is up to a State legislature to decide how the State will regulate abortion (assuming the State does not address abortion through constitutional amendment or referendum).
#5. The governors’ brief concludes
For too long, the Federal Government has dived (not just waded) into issues reserved to the States under the Constitution. Although those forays usually come from the political branches, they have, on occasion, come from this Court as well. Roe and Casey are quintessential examples of such misadventures. The Court should take this opportunity to correct the mistakes in its abortion jurisprudence and recognize that the text and original understanding of the Fourteenth Amendment have nothing to do with abortion. Rather than creating a federal constitutional right, the Court should leave regulating abortion to the States, where the people may act through the democratic process. This Court should hold as much—and in the process, help restore the constitutional (but currently disrupted) balance between the Federal Government and the States
A fine brief which can be read in its entirety here.
We’ll be looking at additional briefs later this week.