Justice Department asks Supreme Court to uphold legal abortion  

null / Claudette Jerez/CNA

Washington D.C., Sep 21, 2021 / 10:15 am (CNA).

The Justice Department on Monday asked the Supreme Court to uphold Roe v. Wade, the court’s 1973 ruling that legalized abortion nationwide.

The court on Monday had announced that oral arguments in Dobbs v. Jackson Women’s Health Organization, a major abortion case, will be held on Dec. 1. The case involves a challenge to Mississippi’s restrictions on most abortions after 15 weeks of pregnancy.

In an amicus brief filed at the Supreme Court on Monday, the Justice Department argued that the state is seeking to overturn nearly 50 years of court rulings that upheld legal abortion, and asked the court to maintain its previous abortion rulings.  

“Petitioners insist that a woman’s decision whether to carry a pregnancy to term—perhaps the most intensely personal and life-altering choice a person can make—should enjoy no more protection than workaday social and economic matters that trigger rational-basis review,” the Justice Department stated in its brief.

“If the Court considers that new argument, it should decline to disturb Roe’s central holding—just as it did a generation ago,” the brief stated.

Mississippi’s law, the Gestational Age Act, restricts abortions after 15 weeks but includes exceptions for when the mother’s life or “major bodily function” is at stake, or if the unborn child has a condition “incompatible with life outside the womb.”

Jackson Women’s Health Organization, the state’s only abortion clinic, sued over the law, and is represented in court by the Center for Reproductive Rights.

The Supreme Court in May agreed to take up the case, after lower courts ruled against the law and the state of Mississippi appealed. The court is considering only one legal question in the case, “Whether all pre-viability prohibitions on elective abortion are unconstitutional.”

The court’s decision to take up the case was seen as significant, as it had previously refused to consider appeals in favor of other state pro-life laws restricting abortions after 20 weeks, 12 weeks, and as early as six weeks.

On Sept. 1, the court also declined a challenge to Texas’ law restricting most abortions after detection of a fetal heartbeat. By rejecting the legal challenge, the court allowed the law – which is enforced by private civil lawsuits and not by the state – to remain effective. In response, President Joe Biden promised a “whole-of-government” effort to maintain abortion in Texas.

In its Supreme Court brief on Monday, the Justice Department invoked the legal principle of stare decisis to urge the court to respect and uphold its previous abortion rulings. The court’s 1992 decision in Planned Parenthood v. Casey upheld Roe, the brief noted.

“And the passage of another three decades means that every American woman of reproductive age has grown up against the backdrop of the right secured by Roe and Casey, which has become even more deeply woven into the Nation’s social fabric,” the Justice Department argued.

“Roe and Casey were and are correct. They recognize that forcing a woman to continue a pregnancy against her will is a profound intrusion on her autonomy, her bodily integrity, and her equal standing in society,” the brief stated.

Although the Supreme Court upheld its Roe ruling in the Casey decision, the state of Mississippi has argued that the court should reconsider those two rulings altogether.

Mississippi Attorney General Lynn Fitch in July argued that those decisions established “a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court.”

“As a result, state legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children,” Fitch said in the state’s brief at the court.

“It is time for the Court to set this right and return this political debate to the political branches of government,” she wrote. 

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