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Biden Administration Urges Supreme Court to Uphold Roe v. Wade

Sept. 21, 2021, 9:20 PM

The federal government urged the Supreme Court to reaffirm the right to an abortion and strike down Mississippi’s ban on abortions after 15 weeks.

If “States are permitted to ban pre-viability abortion, the effects are likely to be felt most acutely by young women, women of color, and those of lesser means, further diminishing their opportunities to participate fully and equally in the Nation’s social and economic life,” the government said in its brief filed Monday.

Even if the current court would not come out the same way if Roe and the court’s 1992 ruling, Planned Parenthood v. Casey, decades of reliance on those cases requires that court not jettison those rulings.

“Indeed, all women now of childbearing age (and presumably most of their partners) have grown up against the backdrop of Roe and Casey’s core holding,” it said.

Earlier this month, the Supreme Court allowed a Texas abortion ban to go into effect, saying procedural issues kept the court from stepping in. The Texas law bans abortions after six weeks and—like the Mississippi ban—doesn’t include an exception for rape or incest.

The justices will hear oral arguments in the Mississippi case Dec. 1.

‘Precedent on Precedent’

The government argued that Roe and Casey were rightly decided and the court shouldn’t change course now.

Those cases recognize that the states have an interest in “protecting potential life” along with a woman’s interest in deciding whether to have children, the government said. The viability line—prohibiting abortion restrictions that place an undue burden on the right to an abortion up to 23 or 24 weeks—"appropriately balances those interests.”

But even if that weren’t the case, the court shouldn’t throw out decades of caselaw that women have come to rely on.

“In Casey, the Court exhaustively considered the case for overruling Roe, including every argument petitioners make here,” the government said.

In the 30 years since the court refused to overrule Roe, stare decisis “applies with even greater force today,” it said, referring to the judicial principle that court’s should overturn previous case law unless it was “grievously or egregiously wrong.”

The brief echoed comments made by Justice Brett Kavanaugh during his 2018 confirmation hearings in which he said Casey was “precedent on precedent.”

Overruling a “watershed” ruling like Roe would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”

The Justice Department also filed an amicus brief supporting New York’s gun-control regime.

“The Second Amendment protects an individual right to keep and bear arms, but that right is not absolute,” DOJ wrote in the filing ahead of Nov. 3 oral argument on concealed-carry licensing.

The abortion case is Dobbs v. Jackson Women’s Health Organization, U.S., No. 19-1392.

- With assistance from Jordan Rubin

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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