Across the country, there are a growing number of states considering legislation to expand abortion and removing any existing protections for unborn babies.  New York was the most recent high-profile example.  Governor Andrew Cuomo signed the Reproductive Health Act allowing abortion through all stages of pregnancy and removing explicit protections for babies born alive during an abortion.  Similar measures are under active consideration in Vermont, New Mexico, and Rhode Island, Maryland, and Illinois.

 

There is the notion among abortion advocate that with the retirement of Justice Anthony Kennedy and the confirmation of Brett Kavanaugh to be an associate justice of the U.S. Supreme Court, that abortion may again become an issue for debate in  the high Court.

 

If Roe v. Wade, 410 U.S. 113 (1973) were overturned, abortion would not necessarily be illegal throughout the country, but the people of each state would be free to decide through their legislatures whether and under what conditions to permit abortion.  Some states, like New York, will become havens for late abortions, and others will protect unborn children and their mothers.

 

What must happen for a case to come before the Supreme Court, at the most basic level, four Justices must agree to hear a case, and they do so at their own discretion.[i]  Typically, justices are more likely to evaluate a case where there might be a circuit split that they perceive as needing resolving.  Several state abortion challenges are working or have worked their way through the appellate court level and may invite review.   One example before the current Court is an enjoined Indiana law, among other things, prohibits abortion when knowingly done because the baby has Down Syndrome.  The Court has, so far, not indicated if it will hear the case.[ii]  

 

Another possibility for the court to potentially consider in a future term is the Dismemberment Abortion Ban Act.  While ten states have enacted this law, it is currently enjoined and not in effect in all but two.[iii]  The law is under active appeal in both Texas and Arkansas.  If upheld in one of those Federal jurisdictions, this could potentially set up the kind of circuit split the court tends to want to resolve. 

                                                                                                                                    

What does this law do, and how might it be held constitutional?

 

In the state dismemberment abortion bans, the legislation prohibits not all dismemberment abortions, but those done with the purpose dismembering a living unborn child. The definition does not include an abortion which uses suction to dismember the body of the developing unborn child by suction, for example, or those done on an unborn child who has been killed prior to being dismembered.  Dismemberment abortions are a common and brutal type of D&E abortion which involves dismembering a living unborn child piece by piece.

 

According to the National Abortion Federation Abortion Training Textbook – “D&E remains the most prevalent method of second-trimester pregnancy termination in the USA, accounting for 96% of all second trimester abortions”.[iv] There are approximately 1 million abortions performed annually in this county.[v]  Data from the most recent CDC report published in November 2014 indicates that almost 9% percent of abortions are performed on these very developed babies.[vi] These two numbers taken together show that roughly 100,000 unborn babies die each year after the first trimester.

 

Additionally, according to the National Abortion Federation Abortion Training Textbook, dismemberment abortions are a preferred method, in part, --not because they are necessary, but because they are cheaper than other available methods.[vii]

 

While critics argue that this is just another doomed attempt to reverse Roe v. Wade, there is solid legal reasoning as to how the Supreme Court might uphold these laws.   The states enacting the Unborn Child Protection from Dismemberment Abortion Act are not asking the Court to overturn or replace the 1973 Roe v. Wade holding that the state’s interest in unborn human life becomes “compelling” at viability. Rather, the states are applying the interest the Court recognized in the 2007 Gonzales v. Carhart[viii] case, that states have a separate and independent compelling interest in fostering respect for life by protecting the unborn child from death by dismemberment abortion.

 

Gonzales justified the federal law protecting unborn children from partial-birth abortions based on the government’s “interest in protecting the integrity and ethics of the medical profession,”[ix] and on the “premise . . . that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child . . . . Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”[x]

 

The Gonzales Court quoted a Congressional Finding from the Partial Birth Abortion Ban Act:

 

Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.

 

The same principle applies to dismemberment abortions, in which a sharp instrument is used to slice up a living unborn child.

 

Gonzales itself described the gruesome nature of dismemberment abortions:

“[F]riction causes the fetus to tear apart. For example, a leg might be ripped off the fetus . . . .”

 

Contrasting the partial birth or “intact D&E” abortion, the Court said, “In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart.” “No one would dispute,” it wrote, “that, for many, D & E is a procedure itself laden with the power to devalue human life.”

 

The author of the Gonzales opinion, Justice Anthony Kennedy, used an even more graphic description in his dissent in Stenberg v. Carhart,[xi] stating, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.”

 

In fact, Justice Ginsburg in her dissent, discussing partial-birth abortions stated that, "[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.”[xii]

 

The Court held that protecting unborn children from the brutal inhumanity of partial birth abortion did not impose an unconstitutional “undue burden” on abortion because other methods could be used. In particular, it noted that “the Act's prohibition only applies to the delivery of ‘a living fetus.’. . . If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.”[xiii]

 

Because of the close resemblance of the constitutional issues settled in the Partial Birth Abortion Ban Act case to those applying to the Unborn Child Protection from Dismemberment Abortion Act, it is possible that a willing and newly constructed Supreme Court could uphold it.

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[i] https://saylordotorg.github.io/text_the-legal-and-ethical-environment-of-business/s05-04-the-certiorari-process.html

[ii] https://www.irtl.org/2019/01/pro-life-community-hopeful-dignity-for-unborn-law-will-be-heard-by-supreme-court/

[iii] https://www.nrlc.org/uploads/stateleg/StateLawsDismembermentAbortionBans.pdf

[iv] Paul, Maureen, et al., eds. Management of unintended and abnormal pregnancy: comprehensive abortion care. John Wiley & Sons, 2009 at p157.

[v] Jones, R. K., & Jerman, J. (2014). Abortion incidence and service availability in the United States, 2011. Perspectives on sexual and reproductive health, 46(1), 3-14. https://guttmacher.org/pubs/journals/psrh.46e0414.pdf

[vi] Pazol, Karen, Creanga, Andreea, Burley, Kim Jamieson, Denise, and Centers for Disease Control and Prevention (CDC). "Abortion surveillance—United States, 2011." MMWR Surveill Summ 63, no. 11 (2011): 1-41. http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6311a1.htm?s_cid=ss6311a1_w

[vii] 6 Paul, Maureen, et al., eds. Management of unintended and abnormal pregnancy: comprehensive abortion care. John Wiley & Sons, 2009 at p157-159.

[viii]  550 U.S. 124.

[ix] Id. at 157, quoting Washington v. Glucksberg, 521 U. S. 702, 731(1997).

[x] Gonzales, 550 U.S. at 158

[xi] 350 U.S. 914, 958-59 (Kennedy, J., dissenting)

[xii] Gonzales, 550 U.S. at 182 (Ginsburg, J., dissenting).

[xiii] Gonzales, 550 U.S. at 164, quoting 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV).