COLUMBUS — Ohio Attorney General Dave Yost today joined a coalition of 23 other states in a brief urging the United States Supreme Court to overturn Roe vs. Wade because the Court is unable to explain the constitutional source of a right to abortion, or even a consistent legal standard for determining when it is violated by a state law.
The brief was filed in a challenge to Mississippi law that bans most abortions after 15 weeks.
“The jurisprudence of abortion has become like the 1960s fights over pornography—no one can say exactly what’s allowed and what’s not,” Yost said. “It’s like Justice Potter Stewart’s definition of pornography: ‘I know it when I see it.’ It’s time to end this failed experiment in judicial law-making and return the matter to the States.”
The Constitution says nothing about abortion, and until Roe was decided in 1973, it was generally regulated by state law.
In Roe, the Court cited five separate amendments to the Constitution — along with the “penumbras” that emanate from those Amendments — to justify creating a right to abortion. Later, it found the right in a different part of the Fourteenth Amendment, citing a due process right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Nor has the Court, in nearly five decades, yet settled on a test for determining when the right is violated.
In Roe, the Court adopted the soon-to-be-abandoned trimester regime, and effectively forbade States from regulating abortion in the first trimester, and only for the preservation and protection of the mother’s health in the second trimester.
In Planned Parenthood v. Casey (1992) – Casey overruled Roe’s trimester framework. A three-Justice plurality announced a new test of “undue burden” — whether a law places a “substantial obstacle” in the way of abortion.
In Whole Woman’s Health v. Hellerstedt (2016) — The Court abandoned the “substantial obstacle” definition of the “undue burden” test with a balancing test: do the benefits outweigh the costs?
In June Medical Services v. Gee (2020) — The Court in this case seemed to go back to the original definition of “undue burden” test.
After Roe, the Justices began splintering over the results in abortion cases, both because they couldn’t agree on whether to recognize any right, and also because they couldn’t agree on the nature of the right at stake. Many cases were 5-4 one way or the other, and some only had plurality opinions (meaning five justices agreed to a result, but couldn’t agree on a reason why).
The coalition states noted in their brief that the Court, thirty years ago in Casey, wrote that its decision would preserve the Court’s integrity and “…call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
The coalition states’ brief notes that the Court has done neither. “Time has not lessened the belief that unborn life deserves protection … People of good conscience will always disagree on this issue, and the Court’s attempt to settle it has failed. Moreover, the Court’s continuing vacillation over the constitutional test and the creation of new, abortion-specific rules have only made matters worse.”