Law & Principles
Attorney General O’Connor keeps pro-life promise
July 30, 2021
Within a week of assuming office, newly appointed Attorney General John O’Connor is already fulfilling one major promise by filing a brief, alongside nearly two dozen other state attorneys general, asking the U.S. Supreme Court to overturn Roe v. Wade.
“Human life begins at conception, and abortion is antithetical to our country’s foundation as a free and moral people,” O’Connor said. “When the Supreme Court issued Roe v. Wade in 1973, the Court did not adhere to the rule of law or the Constitution, but instead dehumanized an entire class of people by ordering states to allow the abortions. Moreover, it degraded the character of our nation as one that values compassion and condemns violence. My colleagues and I encourage the court to correct this egregious mistake, overturn the lower court’s ruling and allow states to protect their unborn children.”
At the press conference announcing his appointment on July 23, O’Connor said he would file a brief in any significant case challenging abortion as a constitutional right.
The brief, which was signed by attorneys general in 24 states, was filed in a case before the U.S. Supreme Court, Dobbs v. Jackson Women’s Health Organization, which is centered on a Mississippi state law that bans most abortions after 15 weeks of pregnancy.
Relying on the U.S. Supreme Court’s abortion jurisprudence, a lower federal court blocked the law from taking effect. In May, the Supreme Court agreed to hear the case.
O’Connor said the U.S. Supreme Court should overturn Roe and its follow-up case, Planned Parenthood v. Casey, overturn the lower Mississippi court ruling, and allow the Mississippi law to stand.
In the brief, the attorneys general say Roe v. Wade is not grounded in the U.S. Constitution and has distorted other areas of law, applying special rules to abortion that are not applied in any other legal context. As a result, they say the “right” to abortion is in some ways more protected by than rights specifically written in the Constitution, like free speech.
“This Court has propounded a constitutional law of abortion for half a century, and no one can describe it with any certainty,” the brief states. “Because the purported right to abortion lacks any textual or historical foundation, it is defined only by the Court’s constantly changing opinions. From the trimester test to the undue-burden test to (possibly) a benefits/burdens balancing test and (possibly) back to the undue-burden test, courts and States are constantly kept off-guard trying to predict this Court’s next addition to this canon.”
The brief said the U.S. Supreme Court’s abortion jurisprudence is “neither stable nor predictable, and its foundational decisions are patently wrong,” and that the Roe and Casey rulings “created and preserved a nonexistent constitutional right.”
“Roe’s failing is straightforward: The Constitution does not include a right to abortion, and there is no history or tradition of protecting such a right,” the brief states, calling abortion “a ‘right’ in search of a constitutional home” that is “found nowhere in the text of the Constitution.”
The brief notes that the majority in Roe indicated the right to abortion sprang from an unspecified right to privacy and pointed to the First, Fourth, Fifth, Ninth, and Fourteenth Amendments as well as the “penumbras” of the Bill of Rights. The Casey decision indicated abortion was a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
“Half a century on—and leaving no clause unexamined—the Court has been unable to locate the right to abortion in the Constitution,” the brief states. “That is because it is not there.”
The brief also notes that the historical analysis contained in the Roe decision only demonstrated “that most States criminalized elective abortion.” In fact, the attorneys general note that by 1857 the American Medical Association’s Committee on Criminal Abortion urged an end to abortion generally, explaining that support for abortion was based on a “wide-spread popular ignorance . . . that the foetus is not alive till after the period of quickening.”
“The case against abortion as a constitutional right is not difficult to make,” the brief states. “It is simply not present in the Constitution or protected throughout the Nation’s history.”
The attorneys general say the “ability of legislatures to legislate on matters of medical or scientific uncertainty also waxes and wanes depending on whether the legislation concerns abortion,” pointing to a range of rulings. For example, the brief notes that “in the context of criminal conduct, the Court treats minors as ‘children’ who are less culpable, but in the context of abortion, the Court treats minors as mature young women.”
In one of the brief’s bluntest arguments, the attorneys general state, “Any precedent that can be interpreted to mean that it is irrelevant whether an unborn child feels pain during dismemberment has no place in a just society.”
“Decisions like Roe and Casey also force states to draw reprehensible lines regarding abortion,” O’Connor said. “As an American committed to justice and the Constitution, I have no choice but to stand up for the least among us and to condemn the killing of our unborn children.”
Gov. Kevin Stitt has also joined a separate brief in the case filed by governors from across the nation. That brief argues for overturning the U.S. Supreme Court’s prior abortion rulings and allowing abortion to be regulated at the state level, as it was prior to Roe.