Justices Turn Away Fight Over Alabama Abortion Law

Protesters for women’s rights hold a rally on the Alabama Capitol steps to protest a law passed in May making abortion a felony in nearly all cases with no exceptions for cases of rape or incest. (AP Photo/Butch Dill)

(CN) – Justice Clarence Thomas applauded the Supreme Court’s rejection Friday of a challenge to Alabama’s ban on so-called dismemberment abortions, writing that the case “serves as a stark reminder that our abortion jurisprudence has spiraled out of control.”

The more clinical term for the procedure is dilation and evacuation, which involves doctors dilating a woman’s cervix and using instruments such as forceps to grasp and evacuate the fetal tissue.

The procedure, which is used beginning at 15 weeks of pregnancy, is said to be the safest and most common method of second-trimester abortions.

Alabama passed a law in 2016 banning the dilation and evacuation procedure, which it calls dismemberment abortion, prompting a lawsuit from the West Alabama Women’s Center.

The state law required abortion providers to cut the fetus’ umbilical cord or inject it with digoxin or potassium chloride to ensure its “demise” before evacuation. Abortion providers who did not do so would face up to two years in prison and a $10,000 fine.

According to court records, 93% of abortions in Alabama do not use dilation and evacuation, because they are performed before the 15th week of pregnancy when other procedures can be used.

A federal judge issued a preliminary injunction barring enforcement of the law, finding there are no safe and effective ways for abortion providers to comply with it.

The 11th Circuit begrudgingly affirmed last August. The judges cited U.S. Supreme Court precedent but made clear that if they had their druthers, they would have reversed the district court.

“In our judicial system, there is only one Supreme Court, and we are not it,” Chief U.S. Circuit Judge Ed Carnes wrote for the three-judge panel. “The primary factfinder is the district court, and we are not it. Our role is to apply the law the Supreme Court has laid down to the facts the district court found. The result is that we affirm the judgment of the district court.”

On Friday, the U.S. Supreme Court denied a petition to hear the state’s appeal.

In a three-page concurrence, Justice Thomas expressed disgust for the dilation and evacuation procedure but agreed with not hearing the case.

“The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” he 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 ‘the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”

The conservative justice acknowledged but disagreed with the high court’s undue-burden standard, calling it an “aberration of constitutional law.” He also called the Alabama case “a stark reminder that our abortion jurisprudence has spiraled out of control.”

“Although this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, we cannot continue blinking the reality of what this court has wrought,” Thomas concluded.

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