The Supreme Court has received a flurry of amicus curiae briefs this week as lawyers and scholars rush to point out the fatally flawed jurisprudence of the woeful 1973 Roe v. Wade decision and its companion cases.
“This could be our chance. Pro-Lifers have a case before the Supreme Court of the United States that takes a DIRECT SHOT at Roe v. Wade,” states a Thursday email from Texas Right to Life, in reference to the Supreme Court’s decision to take up Dobbs v. Jackson Women’s Health Organization, a Mississippi pro-life law that prohibits abortions at 15 weeks.
The Court received a stunning 74 separate amicus curiae (“friend of the court”) briefs concerning the Dobbs case this week, the vast majority of which were filed “in support of petitioners.”
A 29-page brief submitted Thursday by law professors Mary Ann Glendon and O. Carter Snead, for example, explains how the Supreme Court’s current abortion jurisprudence “entrenches in the law a vision of human identity and flourishing that is not only constitutionally unwarranted, but is also false and pernicious.”
“The manifestly absurd and unjust precedents that comprise this jurisprudence should be overruled,” the brief declares, “and the American people should be permitted to join the supermajority of nations around the world where citizens themselves have been allowed to deal with this contested matter through ordinary democratic political processes.”
“The Court’s abortion jurisprudence is completely untethered from the Constitution’s text, history, and tradition,” the brief states, and has “imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades.”
Glendon and Snead also note that the current case “offers the cleanest opportunity since Roe v. Wade was decided in 1973 for the Court to revisit its deeply flawed and harmful jurisprudence.”
Similarly, a brief filed by the Ethics and Public Policy Center (EPPC) Thursday declares that “it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, it has been robustly opposed both within and outside the Court ever since, and no sitting Justice has defended the merits of its actual reasoning.”
“In fact, 30 more years of Roe’s misrule have proved that the greatest enduring threat to this Court’s legitimacy is Roe itself,” the EPPC brief states.
The text of the Fourteenth Amendment “does not even hint” at any right to abortion and “the generation that adopted the Fourteenth Amendment overwhelmingly banned the practice of elective abortion,” it adds.
From a slightly different perspective, the American College of Pediatricians and the Association of American Physicians & Surgeons filed a brief Thursday asserting that Roe v. Wade and Planned Parenthood v. Casey “relied on limited information about prenatal development,” whereas scientific knowledge has now “overtaken Roe and Casey” and should be taken into consideration when revisiting these rulings.
“When Roe v. Wade was decided in 1973, scientific knowledge of fetal development was extremely limited,” the brief declares. “The evidence before this Court was even more limited. Neither Roe nor its companion case, Doe v. Bolton, had any record evidence about the medical and scientific status of the unborn child.”
“What we know today — as uncontroverted scientific fact — is that the child develops much more quickly than the Court in Roe presumed,” the brief argues. “From conception, the unborn child is a unique human being who rapidly develops the functions and form of a child long before viability.”
“As what we know about the unborn child’s rapid development has changed, so too must this Court’s jurisprudence change,” it declares.
Citing the 2012 Alabama Supreme Court ruling in Hamilton v. Scott, the brief notes that since Roe was decided in 1973, “advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity.”
A brief filed on July 27 by the United States Conference of Catholic Bishops (USCCB) and other religious organizations argues that “neither Constitutional text nor history supports a right to take the life of an unborn child at any stage of pregnancy.”
The bishops’ brief also contends that “the viability rule has never met with general acceptance by the American public, judges, or legal scholars.”
The rule the Court adopted in Roe v. Wade, and reaffirmed in Planned Parenthood v. Casey, barring states from prohibiting abortion before viability, “is deeply flawed,” the brief asserts. “These decisions, insofar as they impede the ability of states to prohibit abortion before viability, should be overruled.”