Democratic lawmakers have filed their own amicus brief calling for the Louisiana law to be struck down. Stephanie Schriock, the president of Emily’s List, a group that works to elect Democratic women who support abortion rights, assailed the Republican brief in a statement.
“Reproductive rights and the ability to make our own health care decisions are fundamental to the freedoms we have under the Constitution,” she said. “Unfortunately, this amicus brief proves that not only is the threat to those rights very real, but it is at a critical tipping point where the minority is ready to strip our freedom away against the majority’s wishes.”
The Republicans’ brief argues that Roe, and a series of abortion rights decisions that flowed from it, are unworkable opinions. “In sum, Roe’s jurisprudence has been characterized by Delphic confusion and protean change,” the lawmakers wrote.
They also took aim at the 1992 Casey ruling, in which the justices upheld the constitutional right to an abortion established in Roe, but found that states could impose restrictions as long as they did not constitute an “undue burden” on abortion rights.
In a 2016 case, Whole Woman’s Health v. Hellerstedt, the court, citing Casey’s “undue burden” criteria, struck down a Texas law similar to the one in Louisiana. The next year, a federal judge in Louisiana, citing Hellerstedt, struck down the Louisiana law, but that ruling has been reversed on appeal.
Now the matter rests with the Supreme Court, which is expected to hear oral arguments in March. In their amicus brief, the lawmakers asserted that Casey’s “undue burden” standard was “vague and opaque,” and left judges, including those in Louisiana, struggling to figure out how to apply it.
“Amici respectfully suggest that the court’s struggle — similar to dozens of other courts’ herculean struggles in this area — illustrates the unworkability of the ‘right to abortion’ found in Roe,” they wrote, “and the need for the court to take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”