WASHINGTON (ChurchMilitant.com) - In the biggest abortion case to make its way before the U.S. Supreme Court in years, 45 pro-abortion amicus briefs have been filed asking the justices to strike down a pro-life law.
The Texas law in question, House Bill 2 (HB2), has been under litigation since 2013, having twice been before the Fifth U.S. Circuit Court of Appeals — which upheld its constitutionality both times — and once before the Supreme Court.
The High Court didn't rule on the substance of the law at the time, instead issuing an order granting a temporary injunction against the law's enforcement as long as litigation was ongoing.
The law was the subject of national debate in 2013, when former Texas senator Wendy Davis filibustered the senate version of the bill in an 11-hour stand-off that was broadcast on live TV. Despite her attempts, HB2 eventually passed.
The law itself bans abortion beyond 20 weeks in Texas, requires abortionists to have local hospital admitting privileges, and also holds abortion mills to higher standards of health. The law would've ended up closing all but 10 abortion clinics in Texas.
The Supreme Court is now being asked essentially to decide whether the law places an "undue burden" on women's access to abortion. As many as 45 groups, states and inviduals have filed friend-of-the-court briefs arguing the law should be struck down, including the American College of Obstetricians and Gynecologists, the American Medical Association, the Lambda Legal Defense Fund and the American Civil Liberties Union, among others.
One of the briefs in particular is being filed by 113 self-described "women in the legal profession who have exercised their constitutional right to an abortion," and claim to be "united in their strongly held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions."
Quoting an email from one of the women, the brief states: "To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion."
The statements highlight the controversy surrounding the landmark 1973 case Roe v. Wade, which enshrined abortion as a "right" under the Constitution — in spite of the fact that abortion is neither explicit nor — as some legal experts claim — implicit in the text of the Constitution.
Numerous law scholars who support abortion have admitted Roe v. Wade is a poorly reasoned case. John Hart Ely, for instance, has said it's "bad constitutional law, or rather ... it is not constitutional law and gives almost no sense of an obligation to try to be."
Harvard law professor Laurence Tribe has said: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
And Edward Lazarus, former clerk to Supreme Court Justice Harry Blackmun, author of Roe v. Wade, conceded, "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible."
Even Justice Ruth Bader-Ginsburg, a lifelong feminist, has criticized the case. "Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."
Some jurists today argue that Roe's categorization of abortion as a fundamental right to privacy is wrong, and that it's more accurate to call it a right to autonomy, since the issue is less about privacy than it is about a woman's self-determination and what she decides to do with her body, and with the life within her body.
The current case before the Supreme Court will determine whether Roe v. Wade will continue to stand in its essentials, or whether states have the right to place limits on women's access to abortion based on health concerns.
A list of amicus briefs submitted in favor of HB2 for the current case has yet to be published. Oral arguments will be held March 2.