Important Update to Dismemberment Abortion Litigation

An Amicus Brief was posted on the Supreme Court docket website on Feb. 4 seeking clarification on the question:
Whether a state ban on dismemberment abortions is unconstitutional where there is a reasonable medical debate that alternatives to the banned procedure are safe

The Brief is presented through Governor Bevin as “Amici Curiae Supporting Petitioners.” Bravo Governor Bevin!

The Brief ends by asking SCOTUS to reverse the lower court decision of the Eleventh Circuit that overruled Alabama’s passage of a Dismemberment Abortion law in 2016. The lower court ruled it an unconstitutional ban on the D&E procedure.

Other states including Kentucky have passed the same legislation, namely Louisiana, Arkansas, Kansas, Mississippi, Ohio, Oklahoma, Texas, and West Virginia. Even more states are listed as petitioners in the Amicus Brief, including Arizona, Florida, Georgia, Idaho, Indiana, Missouri, Montana, Nebraska, N. Dakota, S. Carolina, S. Dakota, and Utah. There is strength in numbers!

The Brief contends:

The question presented in this case goes to the heart of the States’ authority to regulate abortion. This Court has held that States (1) have an interest in protecting and fostering respect for human life, including unborn life, and (2) have the power to regulate the medical profession, including on matters of medical judgment and ethics connected to abortion. See Gonzales v. Carhart, 550 U.S. 124 (2007). As a result, not only may States prohibit specific abortion procedures that threaten to erode respect for life, but they may balance any related medical tradeoffs when they do so, on condition that they do not unduly burden the decision to obtain an abortion. Id. Although the decision to obtain an abortion has been constitutionally protected, access to a particular abortion method — even a method favored by abortion providers — is not.

The request spotlights the legislation as pro-human dignity rather than pro-life. It does not prevent abortion. This is the unconscionable pass at which we find ourselves today. Regaining ground is the objective of this challenge to the court decision.

…In requiring fetal demise before dismemberment, amici do not intend to sanction either abortion generally or the dismemberment procedure in particular. They regret that Supreme Court precedent places them in the incongruous position of advocating for fetal death as a less brutal, more humane alternative to a procedure that should have no place in a civilized society. But at a minimum, amici strongly support the authority of States to protect both unborn life and human dignity in that small way. Amici thus have an interest in ensuring courts recognize that authority and scrutinize it under the appropriate standards.

Read more on the NRLC news.