Over 200 members of Congress ask Supreme Court to 'reconsider' Roe v. Wade

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By Dartunorro Clark  with NBC News Politics
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Abortion rights activists rally in front of the Supreme Court in Washington, DC, on May 21, 2019.   -   Copyright  Andrew Caballero-Reynolds AFP - Getty Images file

Over 200 members of Congress, largely Republican men, on Thursday asked the U.S. Supreme Court to consider overturning two landmark abortion rights cases ahead of oral arguments in a Louisiana abortion case slated for March.

The lawmakers, which include 38 senators and 168 House members, filed an amicus brief urging the court to "reconsider" the landmark 1973 Roe v. Wade decision legalizing abortions across the nation and the court's 1992 ruling in Planned Parenthood v. Casey, which upheld Roe v. Wade and barred states from placing an "undue burden" abortion access. Two Democrats— Rep. Daniel Lipinski of Illinois and Rep. Collin Peterson of Minnesota— joined the brief.

At issue isLouisiana's "Unsafe Abortion Protection Act,"which was passed in 2014 and requires any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. The law is not currently in effect.

A federal district court judge blocked the law in 2017. But in 2018 it was upheld by the 5th U.S. Circuit Court of Appeals, arguing that the law would not impose an "undue burden" on abortion access, which has been the High Court's key legal test for challenges to abortion restrictions. However, last year, the Supreme Court reimposed the stay last February to weigh its constitutionality. Earlier this week, on Tuesday, the court said it would hear the case on March 4.

The lawmakers argued that"that the Fifth Circuit's struggle to define the appropriate 'large fraction' or determine what 'burden' on abortion access is 'undue' illustrates the unworkability of the 'right to abortion' found in Roe v. Wade...and the need for the Court to again take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled."

Supporters of the Louisiana law argue that this law would assist with continuity of care in case of an emergency, but critics argue it severely restricts access to abortions and is an effective ban.

The clinic and two Louisiana doctors who challenged the law argued that it was identical to a Texas law that the Supreme Court in 2016 struck down, saying it imposed an obstacle on women seeking access to abortion services without providing them any medical benefits.

The lawmakers argue that in the 2016 Texas case the court "created an overly subjective 'balancing' test, leading to confusion among Congress and state legislatures alike as to which laws might withstand constitutional scrutiny."

The lawmakers asked the court to uphold the ruling from the 5th Circuit Court of Appeals, which argued in its 2018 majority opinion that the Louisiana law "does not impose a substantial burden on a large fraction of women."

Thirteen Republicans did not sign the brief, including eight who are up for reelection this year. Those include Senate Majority Leader Mitch McConnell of Kentucky, Susan Collins of Maine, Lindsey Graham of South Carolina, Dan Sullivan of Arkansas, Martha McSally of Arizona, Shelley Moore Capito of West Virginia, Cory Gardner of Colorado and David Perdue of Georgia.