The Two Democrats Determined to See Roe v. Wade Overturned

Henrietta Brewer
January 6, 2020

The Supreme Court made Roe v. Wade law in a landmark 1973 ruling, deeming restrictive state regulation of abortion unconstitutional.

"I'm proud to have a 100 percent pro-choice voting record and I'm deeply alarmed by the rapidly escalating attacks on women's access to reproductive care in several states", Bustos said at the time in a statement published by Politico.

This abortion-related challenge will be the court's first since President Donald Trump's two nominees, Justices Brett Kavanaugh and Neil Gorsuch, took the bench. The law at issue requires a doctor to have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed, which critics say is not medically justified.

The state argued that admitting privileges were necessary to protect patients' health and safety. But it is hard to uphold the law because to do so sets it up to endless challenge under the "undue burden" test which has added to the unworkability of abortion law in the United States.

The obvious question is whether the doctrine of stare decisis will hold, in which case the Court will decide the case more narrowly, perhaps along similar lines as Hellerstedt, or whether the Supremes will consider overruling Roe.


The U.S. Court of Appeals for the Fifth Circuit in 2016 upheld Louisiana's abortion law, but the Supreme Court in February blocked it from going into effect until litigation was resolved. "Even if the Court unanimously reaffirmed Roe, it would merely preserve the legal schizophrenia that exists between the Court's policy and state and federal law, and do nothing to change the basic social and legal factors that have made Roe immune to settlement".

Francisco argued in his brief that the appellants did not have standing to bring the case on behalf of women seeking an abortion because their interest "do not run "parallel" with Louisiana women, but instead might "potentially [be] in conflict".

Along with Newman, a number of Democrats who are challenging some of the brief's signatories in 2020 pointed to the document as evidence that anti-choice candidates must be defeated in the coming elections.

He then told the court that the law would not create a "substantial obstacle" for women seeking abortion in the state and that if there is a burden they would be minimal.

"The burdens of Act 620 are minimal-principally, a modest increase in the waiting time (less than an hour) to obtain an abortion", he wrote.


Francisco also said that the benefits of the law are "sufficient to justify" any burdens it imposes on Louisiana women.

The brief is in response to a Louisiana case, June Medical Services, LLC v. Gee, that the Supreme Court is set to hear this spring.

"Pro-life" group Americans United for Life have filed an amicus (or friend of the court) brief with the Supreme Court laying out why they feel that the justices should not only uphold the Louisiana law, but use this case as an opportunity to overturn Roe, and subsequent cases such as Planned Parenthood v. Casey.

"Forty-six years after Roe was decided, it remains a radically unsettled precedent: two of the seven Justices who originally joined the majority subsequently repudiated it in whole or in part, and virtually every abortion decision since has been closely divided".


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