168 Representatives and 39 Senators signed an amicus brief filed with the Supreme Court that details the need for them to take a fresh look at Roe v. Wade. Joining the 205 Republican lawmakers signing the brief were two Democrats, Representatives Dan Lipinski from Illinois and Collin Peterson from Minnesota.
News of the brief was overshadowed by the killing of Qasem Soleimani, the Iranian general who was responsible for the deaths of hundreds of Americans. The brief was filed following recent pro- and anti-abortion laws signed by various states, some of which have been challenged and are likely to reach the Supreme Court soon.
39 Republican senators and 168 representatives including 2 Democrats just signed an amicus brief asking the Supreme Court to revisit and potentially overturn Roe v. Wade
— Jack Posobiec ?? (@JackPosobiec) January 2, 2020
The brief details examples of lower court struggles to sort through the various laws and come up with a consistent ruling on the rights of states to manage how abortions are to be regulated. It points to the need for clarity from the highest court, noting that Roe v. Wade has not established a legal environment that avoids challenges from both ends of the spectrum. It concludes with a call for the court to go to the source of the confusion, Roe v. Wade itself, and consider overturning it altogether.
Notably missing from the list of people signing the brief were Senate Majority Leader Mitch McConnell and powerful moderate Senator Lindsey Graham. Neither has released a statement regarding the brief or their absence from its signing.
The current makeup of the Supreme Court makes it possible for a well-tried challenge to Roe v. Wade to potentially succeed. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would likely be in favor of overturning the 1973 ruling. Chief Justice John Roberts and Justice Brett Kavanaugh have both stated publicly they believe Roe v. Wade is settled, but as right-leaning Justices, it seems possible to sway them with compelling constitutional arguments.
It may be a risky time for this to be brought before the Supreme Court as doing so would preclude challenges in the near future. The Supreme Court does not reexamine its previous rulings very often. If they took it up now and declined to change the original ruling, it would be decades before pro-lifers could get another chance. With two octogenarians – Ruth Bader Ginsberg and Stephen Breyer – among the left-leaning Justices, it may behoove conservatives to wait for President Trump to nominate one more before going after the Roe v. Wade judicial juggernaut.
Though the amicus brief itself will not be enough to prompt the court to take a look at Roe v. Wade, several of the laws making their way through the court system now are likely to bring up the question. The brief is a preemptive argument for Justices to look at these laws through a broader lens. Doing so would be the Justices’ prerogative, but having input from Capitol Hill is, at the very least, a strong symbolic gesture.
We have never been this close to having the right circumstances and a conservative majority on the bench who may be willing to overturn Roe v. Wade. After 47 years of pointless death, an end to the nightmare may be in sight.
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