Overturn Roe v. Wade, law profs argue in upcoming SCOTUS abortion case

Multiple law professors have submitted amicus briefs for the highly consequential Dobbs v. Jackson Women’s Health Organization Supreme Court case, advocating states’ rights to institute abortion bans.

One brief criticizes court precedent set by Roe v. Wade as 'completely untethered from the Constitution’s text, history, and tradition.'

Law professors from at least six universities have filed amicus briefs for Dobbs v. Jackson Women’s Health Organization, the most important abortion case to reach the Supreme Court since Roe v. Wade. All argue in those briefs that the court must overturn both Roe and Planned Parenthood v. Casey.

The rulings in both Roe and Casey are “completely untethered from the Constitution’s text, history, and tradition,” Notre Dame Law professor O. Carter Snead and Harvard Law professor Mary Ann Glendon argue in a brief they co-authored

“The Court’s abortion jurisprudence grafted onto the Constitution a vision of what it means to be and flourish as a human being that isolates mother and child, pitting them against one another in a narrative of zero-sum conflict among strangers, depriving them of much needed sources of protection, support and care,” they write. 

Because Roe and Casey have created an “extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades,” the principle of stare decisis, far from being an obstacle to overturning them, actually warrants it.

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The 2018 law in Mississippi that bans elective abortion after 15 weeks of gestation prompted the Dobbs v. Jackson Women’s Health Organization case.

Notre Dame Professor of Law Richard Garnett takes a similar position in his brief, co-authored with the Cooper & Kirk law firm in Washington, D.C.

“By the narrowest of margins, this Court in Planned Parenthood v. Casey (1992), refused to overrule Roe — not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by Casey itself supports Roe’s repudiation,” they write.

Another brief, submitted by Notre Dame professor John Finnis and Princeton professor Robert P. George, takes a slightly different approach, arguing that the constitution not only permits but requires states to prohibit abortion.

Finnis told Campus Reform that they filed the brief to “indicate the strength of the historical case for judging that unborn children, from their conception, are persons, both in reality and in the original public meaning of the phrase ‘any person’ in the 14th Amendment’s Equal Protection clause.”

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The brief he filed is one of the few arguing that states are required to protect the unborn.

“More than 50 other pro-life Briefs in the case argue that Roe was wrong and States are constitutionally permitted to prohibit abortions from conception,” Finnis said. “Our Brief is one of only two or three that are arguing that States are not only permitted but actually required to do so, by the Equal Protection Clause.”

Finnis also explained that this case is a significant opportunity to reevaluate Roe. 

Mississippi’s law has given the opportunity of “inviting the Court to overrule Roe v Wade (1973) and all subsequent cases that, like Roe, assert that the 14th Amendment’s Due Process Clause creates a constitutional privacy right to abortion at least up to the time when the child is viable (about 24 weeks) – and up to the completion of birth in States that permit such abortions,” he said.

Other professors have filed briefs too, including Kevin C. Walsh from the University of Richmond, Randy Beck from the University of Georgia, and Stephen G. Gilles from Quinnipiac University. 

Beck told Campus Reform that his brief summarizes research he’s done over the past 15 years critiquing the constitutionality of the Court’s rule that the right to abortion lasts until fetal viability.

“The issue the Court agreed to hear in Dobbs was ‘[w]hether all pre-viability prohibitions on elective abortions are unconstitutional,’” he explained. “If the Court agreed that the viability line drawn in Roe was ill-considered and upheld the Mississippi statute, it could significantly expand the ability of states to regulate abortions occurring in the second trimester of pregnancy.”

“While this is not a point I make in my brief, it may be significant that, under the viability rule, the right to abortion lasts significantly longer in the US than in most other countries,” Beck added. “In countries that recognize a right to elective abortion, the most common gestational limit is 12 weeks.”

To date, more than seventy-five briefs in support of Mississippi’s law have been filed and accepted for Dobbs. The court is expected to hear the case during the 2021–2022 term. 

Campus Reform reached out to O. Carter Snead, Mary Ann Glendon, Richard Garnett, Robert P. George, Kevin C. Walsh, and Stephen G. Gilles for comment but did not hear back in time for publication.

Follow the author of this article on Twitter @katesrichardson.