The Supreme Court declined Friday to revive an Alabama law that would ban dismemberment abortions.
The state was forced to appeal to the High Court after a lower court ruled that its 2016 Unborn Child Protection from Dismemberment Abortion Act, which bans so-called “dilation and evacuation” abortions, violated the precedent established by Planned Parenthood v. Casey in placing an “undue burden” on abortion access.
Justice Clarence Thomas was the only justice to comment on the Friday decision. In his concurring opinion, Thomas agreed that the law should not be revived on procedural grounds, but lambasted the legal “aberration” that constrained the court.
“The more developed the child, the more likely an abortion will involve dismembering it,” Thomas said. “The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible. 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.’”
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” he added.
The declination comes after a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled in August that dismemberment abortions, which are the most popular form of second-trimester abortion, cannot be prohibited because there are no alternatives that would not present an “unsurmountable obstacle” to women.
Writing for the panel, Chief Judge Ed Carnes, like Thomas, held that he and his colleagues were bound by what amounts to an “aberration” in constitutional law.
“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 previous dissents from Thomas and the late Justice Antonin Scalia. “If so, what we must apply here is the aberration.”