Trio of Senate Republicans urges Supreme Court to overrule Roe v. Wade

Three conservative Senate Republicans on Monday filed an amicus brief urging the Supreme Court to overturn its landmark precedents that protect the constitutional right to abortion.

In a 33-page brief, Sens. Josh Hawley (R-Mo.), Mike Lee (R-Utah) and Ted Cruz (R-Texas) asked the court to use a Mississippi case to be reviewed next term as a vehicle to overturn Roe v. Wade and related rulings. Calling the status quo “untenable,” the senators said the legal doctrine on abortion that emerged over roughly the past five decades since Roe was decided in 1973 has given judges excessive discretion and proven unworkable. 

“Roe and Casey should be overruled, and the question of abortion legislation should be returned to the states,” they wrote, referring also to the court’s 1992 decision in Planned Parenthood v. Casey. 

“Where a legal doctrine has repeatedly failed to offer clarity — where it has proved unworkable in the past and will likely engender unpredictable consequences in the future — its existence constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature,” the senators wrote. 

The filing comes after Mississippi’s attorney general urged the justices last week in a brief to overrule Roe when the justices review Mississippi’s ban on virtually all abortions after 15 weeks of pregnancy.

Court precedent tracing back to Roe prohibits states from banning abortion before fetal viability, which occurs around 24 weeks, and from placing an “undue burden” on abortion access. The Mississippi law at issue next term creates only narrow exceptions from its 15-week ban on elective abortions. 

The state’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that Mississippi’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before fetal viability. 

Anti-abortion advocates are hoping for a sympathetic audience with a Supreme Court bench that includes six conservative justices — three of them appointed by former President Trump.