Ray Carter | July 29, 2021
Stitt argues for state regulatory authority over abortion
Gov. Kevin Stitt has joined 11 other governors to file an amicus brief that argues the U.S. Supreme Court should overturn prior rulings and leave regulation of abortion up to state governments.
The brief has been submitted in a Mississippi case that involves one of the most direct challenges in decades to prior U.S. Supreme Court rulings that transformed abortion into a constitutional right.
“The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the States,” declares the brief, filed by South Carolina Gov. Henry McMaster and joined by Stitt and the governors of Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Missouri, Montana, and Texas. “Returning to the States the plenary authority to regulate abortion without federal interference would restore the proper (i.e., constitutional) relationship between the States and the Federal Government. It also would produce positive results, including letting the democratic process work as intended, deescalating tensions on this divisive topic, and allowing the States to serve as laboratories of democracy for establishing and implementing suitable abortion regulations based on the latest scientific knowledge.”
Since the U.S. Supreme Court’s 1973 ruling in Roe v. Wade, abortion has been considered a constitutional right and states have had only limited authority to regulate the procedure. In effect, abortion is allowed on demand throughout all months of pregnancy in the United States.
That’s in contrast with much of the rest of the world. The United States is one of only seven nations, out of 198 worldwide, that generally allows elective abortions after 20 weeks of pregnancy.
Gallup Polling has also shown most Americans support greater restrictions on abortion. The firm’s most recent polling showed only 32 percent of adults believe abortion should be legal under any circumstances. The firm found 52 percent believe abortion should be either illegal in all circumstances or legal in “only a few” circumstances.
The U.S. Supreme Court is scheduled to hear the appeal of the state of Mississippi, which passed a law in 2018 that allows abortion after 15 weeks of pregnancy only in medical emergencies or for severe fetal abnormality and has no exception for rape or incest.
Lower courts have overturned the Mississippi law.
In a U.S. Supreme Court brief, Mississippi Attorney General Lynn Fitch declared, “On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.”
The Mississippi brief argues that the U.S. Supreme Court’s rulings in the 1973 Roe v. Wade case and the associated 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey are “at odds with the straight-forward, constitutionally grounded answer to the question presented,” are “egregiously wrong,” and should be overruled by today’s court.
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the Mississippi brief states.
The amicus brief filed by Stitt and other governors similarly notes that prior court rulings that upheld abortion as a constitutional right were based on the idea that the due-process rights guaranteed by the U.S. Constitution’s Fourteenth Amendment protect a woman’s decision to terminate her pregnancy.
The governors’ brief disagrees with those interpretations, stating, “As originally understood, the Fourteenth Amendment does not include the right to terminate the life of an unborn child.”
The brief notes that many states had major restrictions on abortion or outlawed it almost entirely during the same period that the Fourteenth Amendment was adopted and that other states subsequently adopted significant restrictions on abortion after the amendment’s adoption.
Thus, the brief says that “the central tenet of the Court’s abortion jurisprudence is inconsistent with the original understanding of the Fourteenth Amendment. The Fourteenth Amendment has nothing to do with abortion. Therefore, regulating abortion is constitutionally committed to the States (as no other constitutional provision speaks to abortion either).”
Should the U.S. Supreme Court find that Roe was wrongly decided and that abortion is not a constitutionally protected right, abortion would remain legal, although to varying degrees in each state. The brief filed by Stitt and other governors says that would be a positive development because it would mean the U.S. Supreme Court was allowing democracy to “work again on this issue.”
“A State may permit abortion,” the brief states. “A State may ban abortion. A State may chart a middle ground.”
Should citizens feel state abortion regulations are too lax or too strict, they would then have a remedy, the brief notes.
“… if voters do not like what a legislature does, then they have democracy’s ultimate check: the ballot box,” the brief states.
By allowing the democratic process to address abortion, the governors’ brief also says debates over the issue would become less intense over time.
“Rather than creating a federal constitutional right, the Court should leave regulating abortion to the States, where the people may act through the democratic process,” the governors’ brief states. “This Court should hold as much—and in the process, help restore the constitutional (but currently disrupted) balance between the Federal Government and the States.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.