Court Battles

A dozen GOP governors urge Supreme Court to let states regulate abortion

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A dozen Republican governors on Thursday urged the Supreme Court to eliminate federal protections for abortion and instead allow states to regulate the procedure.

Led by South Carolina Gov. Henry McMaster, the group argued in a legal filing that the court’s landmark 1973 decision in Roe v. Wade, which established the constitutional right to abortion, and subsequent rulings unlawfully encroach on states’ rights.

“The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the States,” they wrote. “Returning to the States the plenary authority to regulate abortion without federal interference would restore the proper (i.e., constitutional) relationship between the States and the Federal Government.”

The amicus brief endorsed Mississippi’s effort to have Roe v. Wade overruled next term, and was signed by the Republican governors of Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Missouri, Montana, Oklahoma, South Carolina and Texas.

Giving states the authority to regulate abortions, they argued, would “deescalat[e] tensions on this divisive topic.” It would also allow states “to serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge,” they added.

Abortion rights advocates warn that abortion access would be sharply curtailed across the country if the Supreme Court uses next term’s Mississippi case to overturn Roe v. Wade. Advocates say such a ruling would have a cascading effect in dozens of states, with the heaviest burdens falling on the American South and Midwest, which could see severe restrictions and even outright bans placed on the procedure.

According to the abortion-rights organization the Guttmacher Institute, more than 90 abortion restrictions have already been enacted this year alone, leading the group to describe 2021 as “the worst legislative year ever” for abortion rights in the U.S. 

The Thursday filing by GOP governors follows a legal brief from Mississippi’s attorney general last week that explicitly urged the justices to overrule Roe next term when the Supreme Court reviews 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. 

In their Thursday brief, the GOP governors argued that although federal government intrusions upon states’ rights are typically carried out by the executive branch or Congress, the Supreme Court’s abortion precedents “are quintessential examples of such misadventures.”

“Rather than creating a federal constitutional right,” the GOP governors wrote, “the Court should leave regulating abortion to the States, where the people may act through the democratic process.”

Anti-abortion advocates are hoping for a sympathetic audience with a Supreme Court bench composed of six conservative justices, including three appointees of former President Trump.

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