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Supreme Court Will Not Hear Bid to Revive Alabama Abortion Ban Supreme Court Will Not Hear Bid to Revive Alabama Abortion Ban
(about 2 hours later)
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.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.”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.”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.”
Justice 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.Justice 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.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.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.”“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’s 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.The state proposed three methods of terminating fetal life before extraction: injecting potassium chloride into the fetus’s 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 United States Court of Appeals for the 11th Circuit, 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.’ ”Quoting a 2016 Supreme Court decision, Chief Judge Ed Carnes of the United States Court of Appeals for the 11th Circuit, 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.”“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.”
Chief Judge Carnes’s opinion was notable for its reluctance.Chief Judge Carnes’s 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,” Chief Judge Carnes wrote for the majority. “If so, what we must apply here is the aberration.”“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,” Chief Judge Carnes wrote for the majority. “If so, what we must apply here is the aberration.”
Eight other states have similar laws, Alabama said in its brief seeking Supreme Court review of the case, Harris v. West Alabama Women’s Center, No. 18-837.Eight other states have similar laws, Alabama said in its brief seeking Supreme Court review of the case, Harris v. West Alabama Women’s Center, No. 18-837.
In another development on Friday, the court agreed to decide whether Montana is free to exclude religious schools from a state scholarship program.
The state’s constitution bars using government money to aid schools affiliated with churches. Three mothers who sought scholarships from the state program to send their children to a Christian school sued, saying the state constitution violated provisions of the United States Constitution on religious freedom and equal protection.
The Montana Supreme Court rejected the challenge and shut down the entire scholarship program.
The case, Espinoza v. Montana Department of Revenue, No. 18-1195, will give the United States Supreme Court an opportunity to explore the limits of its 2017 decision in Trinity Lutheran Church v. Comer. That decision said Missouri could not exclude religious institutions from a state program to make playgrounds safer even though the state’s Constitution called for strict separation of church and state.