Case denied
The Supreme Court won’t revive Alabama’s 2016 abortion ban.
WASHINGTON — The Supreme Court on Friday turned down an appeal asking it to revive an Alabama law that would have banned the procedure used in the vast majority of second-trimester abortions.
As is their custom, the justices gave no reasons for declining to hear the case. Justice Clarence Thomas issued a concurring opinion that called the procedure gruesome and unconstitutional.
“This case serves as a stark reminder,” he wrote, “that our abortion jurisprudence has spiraled out of control.”
The procedure, known as dilation and extraction, involves dilating the woman’s cervix and removing the fetus in pieces. Opponents of abortion call it “dismemberment abortion.”
Thomas adopted that terminology. “The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” he wrote.
The Alabama law, enacted in 2016, was blocked by lower courts. It would have affected 99 percent of abortions performed in the state after 15 weeks.
In defending the law, Alabama officials said it fell short of a complete prohibition.
“Although the law is a procedure ‘ban,’ ” the state told the Supreme Court, “its only practical requirement is that a doctor kill the unborn child through a medically appropriate procedure before removing the unborn child’s body from the woman.”
The state proposed three methods of terminating fetal life before extraction: injecting potassium chloride into the fetus’ heart, cutting the umbilical cord and injecting digoxin, a heart-failure drug, into the amniotic fluid. Lower courts ruled that these methods were not safe, effective or available, and they struck down the law as inconsistent with Supreme Court precedent.
Quoting a 2016 Supreme Court decision, Chief Judge Ed Carnes of the 11th U.S. Circuit Court of Appeals, in Atlanta, said problems with “the fetal demise methods — their attendant risks; their technical difficulty; their untested nature; the time and cost associated with performing them; the lack of training opportunities; and the inability to recruit experienced practitioners to perform them — support the conclusion that the act would ‘place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ ”
“So does the fact,” he added, “that every court to consider the issue has ruled that laws banning dismemberment abortions are invalid and that fetal demise methods are not a suitable workaround.”
Carnes’ opinion was notable for its reluctance.
“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 for the majority. “If so, what we must apply here is the aberration.”
In other abortion-related developments Friday:
• Missouri’s only abortion clinic was temporarily spared after a state commission gave it more time to resolve its licensing dispute with the state Health Department.
• A federal judge blocked an Indiana law that would ban a second-trimester abortion procedure, just days before the law was set to come into force.
• Lawyers with the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights filed a lawsuit challenging Georgia “heartbeat” law that effectively bans abortions about six weeks into a pregnancy.