The Supreme Court declined Friday to revive an Alabama law passed in 2016 that would ban the most common method of second-trimester abortion.
That state was among a handful that proposed criminalizing the dilation and evacuation (D&E) procedure, which is used in almost all abortions performed at 15 weeks and later. Alabama called it the Unborn Child Protection From Dismemberment Abortion Act.
It has never gone into effect, because a district court judge and then a reluctant panel of the U.S. Court of Appeals for the 11th Circuit said that, under Supreme Court precedent, it placed an undue burden on a woman’s right to abortion before fetal viability.
The law is distinct from the statute passed this year by the Alabama legislature that would virtually outlaw abortion in the state. That law has yet to start its way through the legal process.
When the appeals court ruled in August, 11th Circuit Chief Judge Ed Carnes made it clear that the panel was blocking the law only because it had no choice.
“Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion,” Carnes wrote, referring to past dissents from Justice Clarence Thomas and the late Justice Antonin Scalia.
“If so, what we must apply here is the aberration,” Carnes wrote.
Thomas was the only justice who commented in Friday’s order turning down Alabama’s request for a review of the lower court’s decision.
“The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote. “But under the ‘undue burden’ standard adopted by this Court, a restriction on abortion — even one limited to prohibiting gruesome methods — is unconstitutional if” it serves “ ‘to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ ”
He added: “This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control.” But, he said, “this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, [and] we cannot continue blinking the reality of what this Court has wrought.”
Andrew Beck, senior staff attorney at the ACLU Reproductive Freedom Project, said in a statement that “while we are pleased to see the end of this particular case, we know that it is nowhere near the end of efforts to undermine access to abortion.
“Politicians are lining up to do just what Alabama did — ask the courts to review laws that push abortion out of reach and harm women’s health, with the hope of getting the Supreme Court to undermine, or even overturn, a woman’s right to abortion.”
In the appeals court decision, Carnes said the state’s label of “dismemberment abortion” was “more accurate” than the D&E term used by medical professionals, “because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child.”
But all three judges on the panel agreed that alternatives to the procedure were rarely performed or came with health risks to the woman. The lower court found that 93 percent of Alabama women who had abortions had them before 15 weeks.
“Starting around 15 weeks, D&E is the only abortion method that can be performed outside a hospital; it accounts for 95% of second-trimester abortions nationally and 99% of abortions after 15 weeks in Alabama,” said a brief by the American Civil Liberties Union, which represents the West Alabama Women’s Center.
It said that no court that has looked at the issue has found that there are alternatives available that would not present an “unsurmountable obstacle.”
At the Supreme Court, Alabama contended that “although it bans [one] type of abortion procedure, it does not eliminate the ability of women to have an abortion. . . . There are alternatives available that do not require a doctor to terminate fetal life by ripping a living fetus apart limb by limb.”
Despite the appeals court ruling, the state could hardly have drawn a more sympathetic panel. Besides Carnes’s statements, Circuit Judge Joel F. Dubina said he agreed with Thomas that Roe v. Wade has no basis in the Constitution.
“The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not,” he wrote.
The third member of the panel, District Judge Leslie Abrams, sitting by special designation, said she agreed only with the outcome of the case, not her colleagues’ comments.
The case is Harris v. West Alabama Women’s Center.