Featured Article

Dismemberment Abortion:

A Look at the Current

Supreme Court

SCOTUS

Bioethics in Law & Culture                                                                                                                             Winter 2021       vol. 4  issue  1

Jennifer Popik, J.D.

Federal Legislative Director, National Right to Life

As we start the 117th Congress, Democrats will control both the House and Senate by the slimmest of majorities.  In the House, there are 222 Democrats, 211 Republicans, and two vacancies.  In the Senate, there will be 50 Democrats and 50 Republicans. Vice President-elect Kamala Harris would serve as a tie-breaking vote. This means that Sen. Chuck Schumer (D-NY) and House Speaker Rep. Nancy Pelosi (D-Calif.) will largely control what legislation comes to the floor-- and it is widely expected that the expansion of abortion will be a high priority.[i]

In the nearly 48 years since the U.S. Supreme Court handed down Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973), there have been many proposals in Congress to overtly challenge or overturn the Roe doctrine by statute or constitutional amendment, or conversely, to ratify and reinforce the Roe doctrine by federal statute. Still, neither approach has ever been enacted into law.

 

However, that does not mean that Congress has not played an important role in shaping abortion-related public policies. Certainly, Congress has enacted laws that have impacted the number of abortions performed. For example, the Hyde Amendment[ii], limiting abortion funding in Medicaid and certain other programs is estimated to have saved on the order of two million lives.[iii]  Additionally, the U.S. Senate has played and will continue to play a pivotal if indirect role in determining abortion policy through the confirmation of or rejection of nominees to the U.S. Supreme Court and the circuit courts of appeals.

 

The use of one specific method of abortion, partial-birth abortion, has been banned nationwide under a federal law, the Partial-Birth Abortion Ban Act.[iv] The law was enacted in 2003 and upheld by the U.S. Supreme Court in 2007.[v]  Partial-birth abortion, which is explicitly defined in the law, was a method used in the fifth month and later (i.e., both before and after "viability"), in which the baby was partly delivered alive before the skull was breached and the brain destroyed. Abortion performed with the mother's consent by any other method, up to the moment of birth, does not violate any federal law.

It is doubtful that the 117th Congress will be able to enact any pro-life legislation, and pro-life advocates are gearing up for long hard fights on measures like the Hyde Amendment[vi] and the Equal Rights Amendment[vii].

That said, the fight on abortion legislation has critically involved measures passed in the states.  Generally speaking, several different states pass similar abortion restrictions, which work their way through the federal court system.  When different circuits reach opposing opinions, this has the potential to tee up a Supreme Court fight.

 

 

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 discretion.[viii]  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.

If Roe v. Wade were overturned, abortion would not necessarily be illegal throughout the country. Still, 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.

While many pro-life advocates see renewed hope at the prospect of the Supreme Court hearing abortion cases due to the appointment of Associate Justice Amy Coney Barrett (discussed more fully below), there are numerous paths, not involving a direct challenge to Roe v Wade (including a total state ban on abortion) that may be more likely to not only be taken up by the court but to start rolling back Roe v. Wade.

Roe v. Wade could be reversed[ix], and indeed there are many pending cases that could be used for this purpose, but there are victories to be had in the interim absent an eventual overturning of Roe.

In her October 11, 2020, Bloomberg article, “Barrett Offers Supreme Court Many Paths to Erode Abortion Rights,” Cynthia Koons writes,

Roe v. Wade isn’t the only landmark ruling at stake. Abortion advocates, however, say they suspect the court might formally leave Roe intact while rolling back later rulings that could leave the procedure unavailable to millions of people. There are currently 17 cases challenging abortion rights one step away from the nation's highest court, many of which challenge protections or access.[x]

Often, pro-life advocates become discouraged when the Court refuses to hear a case or get involved at the lower level.  Very recently, the Supreme Court rejected a request by a pro-life group to hear a challenge to a Pennsylvania city law that creates a "buffer zone" around abortion clinic entrances. Even Supreme Court Justice Clarence Thomas, revered by many for his past legal opinions denouncing abortion, nevertheless demurred, stating that "it involves unclear, preliminary questions about the proper interpretation of state law."[xi] Some cases simply are not ready for review. 

 

While there are many promising candidates, the Dismemberment Abortion Ban Act is a strong candidate for consideration at the Supreme Court.

 

While thirteen states have enacted this law, it is currently enjoined and not in effect in all but two, and partially enjoined in one.[xii] 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. There would need to be a willing Supreme Court.

 

This fall, the legal world was rocked by the death of longtime Justice Ruth Bader Ginsburg.  Associate Justice Amy Coney Barrett's appointment to fill the vacant seat meant that the Trump Administration was able to place three advocates of judicial restraint on the Supreme Court in the past four years. Justice Barrett clerked for Supreme Court Justice Antonin Scalia. Beginning in 2002, Barrett taught law at Notre Dame, and was named “Distinguished Professor of the Year” three times. In 2017, she was confirmed by the U.S. Senate to serve as a judge of the U.S. Court of Appeals for the Seventh Circuit.

 

While Justice Barrett has yet to vote on an abortion-related case, there was significant action this past summer, before her appointment.

 

What Standard Does The Court Use in Reviewing Abortion Restrictions?

While many people realize Roe v. Wade's expansive nature, many are less aware that the Supreme Court subsequently, in Planned Parenthood v. Casey (1992), permitted more state restrictions on abortion. In a 5-4 decision reaffirming the right to abortion, the Court replaced Roe's strict scrutiny test with the undue burden test, making abortion much easier to restrict.  According to the Casey standard, so long as a law did not impose an “undue burden” on women seeking an abortion, it was permissible. An undue burden was defined as one where the state places a substantial obstacle in the path of a woman seeking an abortion. 

In 2003 the Partial-Birth Abortion Ban Act was enacted into law. This law was upheld 5-4 by the U.S. Supreme Court in the 2007 ruling of Gonzales v. Carhart[xiii], and is in effect today. The law makes it a federal criminal offense to perform an abortion in which the living baby is partly delivered before being killed unless this was necessary to save the mother's life. The law applies equally both before and after "viability" (and most partial-birth abortions were performed before "viability"), and it does not contain a broad "health" exception such as the Court had required in earlier decisions. A study of the Court's reasoning in Gonzales led many legal analysts, on both sides of the abortion issue, to conclude that the Court majority had opened the door for legislative bodies to enact broader protections for unborn children.

In response to the Gonzales ruling, National Right to Life developed the models for both the Pain-Capable Unborn Child Protection Act, as well as the Dismemberment Abortion Ban Act. 

Nearly ten years later, in a disappointing blow, the Court's decision in Whole Woman’s Health v. Hellerstedt (2016) ended up changing the test that abortion restrictions face in the courts.  By a vote of 5-3, the Court declared unconstitutional Texas laws requiring abortion clinics to meet surgical-center standards and requiring abortionists to have admitting privileges at a hospital within 30 miles. The majority ruled that these requirements constituted an "undue burden" on access to pre-viability abortions. In his dissent, Justice Clarence Thomas wrote, "[T] he majority's undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion."  Thomas stated that the majority "reimagines the undue-burden standard" for abortion access, creating a "benefits-and-burdens balancing test."[xiv]

Fast-forwarding to June 2020 case of June Medical Services v. Russo, the Supreme Court struck down a Louisiana abortion restriction with a plurality vote of 5-4. Though Chief Justice Roberts sided with the Court's liberal bloc in striking the Louisiana law because he stated the law was substantially similar to the one struck in Texas, he authored the controlling opinion, which walked back the restrictive opinion in Whole Women’s Health.  Chief Justice Roberts, who provided the fifth vote, reaffirmed that abortion was a protected right. However, he repudiated the enhanced Whole Woman’s Health test. He wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”[xv]  In other words, the test for whether an abortion regulation violates the constitution is the again the Casey test, not the one set forth in Whole Women’s Health.

Under this restored framework, the Supreme Court and lower courts will now examine laws aimed at protecting unborn children.  Further, the Supreme Court now includes Justice Barrett.  In addition, the Republican-controlled Senate was able to make life-time appointments of over two-hundred lower court judges.[xvi]

Courts are considering dismemberment in light of the new Supreme Court precedent, and one state is asking to be allowed to re-argue the case now that the standard for review has again changed. 

Kentucky

On October 30th, 2020, Attorney General Daniel Cameron of Kentucky filed a petition for a writ of certiorari before the United States Supreme Court, asking the Court to hear the challenge to Kentucky's 2018 dismemberment abortion law in light of the June Medical decision.

 

Earlier in 2020, the 6th Circuit Court of Appeals had ruled against the law and the state Cabinet for Health and Family Services (CHFS).  The main party to the litigation, CHFS, which had been represented by Attorney General Cameron, chose not to appeal.

 

Shortly after learning that CHFS would not appeal, Attorney General Cameron moved to intervene in the case and continue to defend his state's law. Just days before the June Medical opinion, the 6th Circuit blocked the Attorney General from intervening. 

 

At that point, the Attorney General petitioned the Supreme Court to vacate the 6th Circuit’s opinion and require the lower court to consider, once again, to hear arguments on the dismemberment law.[xvii] 

 

On December 9th, 2020, a coalition of  20-state attorneys general filed an amicus brief (friend of the court) before the United States Supreme Court supporting Attorney General Cameron’s ability to defend Kentucky’s Dismemberment Abortion Law.  

According to Attorney General Cameron,

The General Assembly put an end to the gruesome practice of live dismemberment abortions when they passed House Bill 454. This law should continue to receive a full defense in court, rather than being invalidated because of one public official's decision. I'm grateful to my colleagues for recognizing the importance of allowing our office to defend the constitutionality of Kentucky's laws, and I'm grateful to General Brnovich for leading the coalition in filing this brief.[xviii]

The Supreme Court has not yet issued a decision. 

Texas

In 2017, Texas lawmakers passed the Dismemberment Abortion Ban Act.  The law never took effect, thanks to a decision authored by U.S. District Judge Lee Yeakel.

On December 8, 2020, Kevin McGill of the Associated Press wrote in the, “Appeals court to rehear Texas abortion case in January”

A three-judge panel of the 5th U.S. Circuit Court of Appeals voted 2-1 to strike down the law in October. But the full court voted to hear the case again. The court on Monday scheduled the hearing for Jan. 21….

But developments since then have given new hope to abortion opponents who hope to revive the ban in Texas, Kentucky, and other states. One reason is a decision in June, in which the Supreme Court struck down a Louisiana law that required doctors who perform abortions to have admitting privileges at nearby hospitals.[xix]

 

The Texas Tribune offered a key explanation

[The decision] comes after the 8th U.S. Circuit Court of Appeals lifted a block on four Arkansas abortion restrictions in August, citing Chief Justice John Roberts’ opinion in the recent Supreme Court case June Medical Services v. Russo. While Roberts' crucial vote, in that case, awarded a victory to advocates of abortion access then, he issued a narrow opinion that said lawmakers have wide discretion "in areas where there is medical and scientific uncertainty" and that weighing the "costs and benefits of an abortion regulation" was not necessarily a job for the courts.[xx]

 

The coming hearing before the full panel and in light of the June Medical case has the law’s advocates hopeful of a different outcome.

Arkansas

In 2017, Arkansas passed a package of legislation which included the Unborn Child Protection From Dismemberment Abortion Act.

In his 2021 Article, “Judge again halts '17 abortion laws” Dale Ellis writes,

Four abortion laws passed in 2017 that are the subject of a lawsuit filed by the American Civil Liberties Union of Arkansas on behalf of abortion providers in the state have been placed on hold once again following a ruling this week by U.S. District Judge Kristine G. Baker.  Baker granted an injunction in 2017 that prevented the legislation from taking effect. Since that time, the laws have been caught in a protracted legal fight as to whether they are constitutional.

 

 

Last August, the 8th U.S. Circuit Court of Appeals vacated Baker's 2017 injunction, asking her to use a different legal standard to review any request to keep the state's laws from taking effect. In December, the 8th Circuit declined to reconsider its decision to vacate Baker's preliminary injunction, which cleared the way for the laws to go into effect on Dec. 22.

 

 

On Dec. 22, Baker issued a temporary restraining order blocking the laws from taking effect until Jan. 5, at which time she issued the preliminary injunction in a 253-page order that was filed at the end of the day Tuesday. The injunction is to stay in effect until further orders from the court are issued.[xxi]

 

Further court action is expected.

 

While Texas, Arkansas, and Kentucky courts examine the constitutionality of the Dismemberment Abortion Ban Act, a discussion of the law and a defense of it is below. 

In each of the state dismemberment abortion bans, the legislation prohibits not all dismemberment abortions but those done with the purpose of 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 before being dismembered.  Dismemberment abortions are a common and brutal type of D&E abortion that 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 U.S.A., accounting for 96% of all second-trimester abortions".[xxii] There are approximately 1 million abortions performed annually in this county.[xxiii] Data from the most recent C.D.C. report published in November 2014 indicates that almost 9% percent of abortions are performed on these very developed babies.[xxiv] 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.[xxv]

What may even be more disturbing is that abortion providers perform dismemberment abortions to yield intact parts that they are accused of then selling to researchers.  In 2017, the U.S. Congressional Select Investigative Panel on Infant Lives concluded work on its report.

According to Congressman Andy Harris, M.D.

The Select Investigative Panel on Infant Lives succeeded in uncovering shameful practices, which undermined the very foundations of ethical American scientific research and have led to 15 criminal and regulatory referrals. Over the course of its year-long investigation of fetal tissue procurement companies and abortion businesses, the Select Panel found evidence that several tissue procurement companies and abortion clinics may have violated federal felony laws prohibiting the sale of human fetal tissue.  As a physician and researcher, it is my sincere hope that our investigation and the subsequent referrals have put an end to these shady and unethical practices.[xxvi]

What is even more unthinkable is that if an abortionist ends the life of the child before dismembering him or her, they are compliant with the Dismemberment Abortion Ban Act. However, causing fetal demise prior to the abortion renders the parts unsellable to researchers.[xxvii]

While critics argue that this is just another doomed attempt to reverse Roe v. Wade, there is solid legal reasoning for how the Supreme Court might uphold these laws.   The states enacting the Unborn Child Protection from Dismemberment Abortion Act do not ask 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 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,”[xxviii] 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.”[xxix]

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 Dismemberment Abortion Ban Act is banning a kind of D & E abortion.

The author of the Gonzales opinion, Justice Anthony Kennedy, used an even more graphic description in his dissent in Stenberg v. Carhart, 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."[xxx]

 

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.”[xxxi]

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.

There are many non-legal arguments thrown at the bill worth reviewing.

Despite the claims from many in the abortion lobby that these sorts of abortions are really just a routine abortion procedure, the brutality of these abortion shocks people, including former

 

Supreme Court Justices.   Dismemberment abortion is the barbaric killing of a human being.  The gruesome nature of dismemberment abortions was described by the Supreme Court in Gonzales v. Carhart: “[F]riction causes the fetus to tear apart.  For example, a leg might be ripped off the fetus . . . .”[xxxii]

Dismemberment abortion is an accurate description of this brutal procedure. As Leroy Carhart, the abortionist who challenged the partial-birth abortion ban said in testimony leading up to Stenberg v. Carhart, “…[W]hen you rupture the membranes, an arm will spontaneously fall out through the vaginal opening …My normal course would be to dismember that appendage and then go back and try to take the fetus out whether foot or skull first, whatever end I can get to first.”[xxxiii] 

When asked how he performed this “dismemberment,” he replied: “Just pulling and rotation, grasping the portion that you can get hold of which would be usually somewhere up the shaft of the exposed portion of the fetus, pulling down on it through the opening, using the internal opening [of the uterus] as your counter-traction and rotating to dismember the shoulder or the hip or whatever it would be.”[xxxiv]

Then he explains that “Sometimes you will get one leg and you can’t get the other leg out.”  The attorney next asks: “In that situation, when you pull on the arm and remove it, is the fetus still alive?'”  Carhart answers: “‘Yes.'”  He adds: “‘I know that the fetus is alive during the process most of the time because I can see fetal heartbeat on the ultrasound.”[xxxv]

Justice Kennedy further wrote:

The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.”[xxxvi] 

           

            and ...

 

“The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may take 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed."[xxxvii]

The violent and dehumanizing nature of dismemberment abortion undermines the public’s perception of the appropriate role of a physician and confuses the medical, legal, and ethical duties of physicians to preserve and promote life.

There are many accounts, even by current abortionists, regarding the brutal nature of the procedure. Dr. Warren Hern, a Boulder, Colorado abortionist who has performed numerous D&E abortions and has written a textbook on abortion procedures, has stated, "there is no possibility of denial of an act of destruction by the operator [of a D&E abortion].  It is before one's eyes.  The sensations of dismemberment flow through the forceps like an electric current."[xxxviii]

While, generally speaking, many of the abortion restrictions in the states contain emergency exceptions, dismemberment abortions are not medically necessary to preserve the life of a mother in acute medical emergencies – dilation of the cervix alone can take at least 36 hours. 

Another prevalent argument relates to the unborn child with a fetal abnormality.  It is a sad truth that some unborn babies start their lives having serious medical conditions. These unborn children have disabilities – not unlike adults.  For a society that prides itself on welcoming people with disabilities (we cut our curbs, make our public buildings and transportation accessible, pass laws to protect the rights of the disabled), it should be unacceptable to solve “disability” by killing those who have the “disability” before they are born. Surely we can do better.

 

Any diagnosis does not negate the fact that a child will feel pain from the abortion procedure at 20 weeks post-fertilization, if not earlier.

Prenatal diagnoses can often be incorrect or inaccurate, unnecessarily putting pressure on a mother to procure an abortion when all she needs is more information and resources about the diagnosed disability, information about perinatal hospice or other services, or more time to see if the diagnosis is correct.

For those children with profound disabilities or conditions incompatible with life, perinatal hospice offers a positive alternative to the trauma of aborting a child. It honors and respects the dignity of the life of every human being. It offers the mother carrying a child with a diagnosed disability extensive counseling and birth preparation involving the combined efforts of Maternal-

 

Fetal Medicine specialists, OB/GYN doctors, neonatologists, anesthesia services, chaplains, pastors, social workers, labor and delivery nurses, and neonatal nurses.

Regardless of any diagnosis received, abortion is an irreversible decision that exacerbates the grieving process and deprives an unborn child of her right to life, which exists no matter what condition a child may have.

While many pro-life advocates see renewed hope at the prospect of the Supreme Court hearing abortion cases due to the current construction of the court, there are numerous cases that could be taken up by the court.  The Dismemberment Abortion Ban Act is one such critically important measure.

 

____________________________

[i] Kapur, Sahil. “Democrats Promise Biden-Era Abortion Showdown over Hyde Amendment.” N.B.C. News, 27 Dec. 2020, www.nbcnews.com/politics/congress/democrats-promise-biden-era-abortion-showdown-over-hyde-amendment-n1251619. Accessed 12 Jan. 2021.

[ii] Public Law 116-94 H.R. 1865, Division A, Title V, General Provisions

[iii]   Michael J. New, Ph.D., Hyde @ 40 ANALYZING THE IMPACT OF THE HYDE AMENDMENT

[iv] (18 U.S.C. §1531)

[v] Gonzales v. Carhart, 550 U.S. 135 (2007).

[vi] For a brief look at the Hyde Amendment see: https://www.nationalrighttolifenews.org/2020/12/nrl-urges-hyde-amendment-be-retained-as-pro-abortion-house-democrats-look-for-ways-to-eliminate-a-measure-that-has-saved-two-million-lives/

[vii] For more information on the E.R.A. see:

https://www.nrlc.org/federal/era/

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

[ix] Wermiel, Stephen. “SCOTUS for Law Students: Supreme Court Precedent.” SCOTUS Blog, 2 Oct. 2019, www.scotusblog.com/2019/10/scotus-for-law-students-supreme-court-precedent/.

[x] https://www.bloomberg.com/news/articles/2020-10-11/barrett-offers-supreme-court-many-paths-to-erode-abortion-rights

[xi]  Bruni v. City of Pittsburgh, 592 U. S. ____ (2021).

[xii] http://www.nrlc.org/uploads/stateleg/StateLawsDismembermentAbortionBans.pdf

[xiii] 550 U.S. 124.

[xiv] https://supreme.justia.com/cases/federal/us/579/15-274/

[xv]  June Medical Services L.L.C. v. Russo, 591 U.S. 207 (2020).

[xvi] https://www.heritage.org/judicialtracker

[xvii] https://kentucky.gov/Pages/Activity-stream.aspx?n=AttorneyGeneral&prId=979

[xviii] https://kentucky.gov/Pages/Activity-stream.aspx?n=AttorneyGeneral&prId=996

[xix] https://abcnews.go.com/Health/wireStory/appeals-court-rehear-texas-abortion-case-january-74611916

[xx] Najmabadi, Shannon. “Texas’ Attempt to Ban Common Abortion Procedure Blocked by Appeals Court.” Texas Tribune, 13 Oct. 2020, www.texastribune.org/2020/10/13/texas-abortion-ban/.

[xxi] Ellis, Dale. “Judge Again Halts ’17 Abortion Laws.” Arkansas Democrat-Gazette, 7 Jan. 2021, www.arkansasonline.com/news/2021/jan/07/judge-again-halts-17-abortion-laws/?news-arkansas. Accessed 11 Jan. 2021.

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

[xxiii] 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. 

[xxiv] Pazol, Karen, Creanga, Andreea, Burley, Kim Jamieson, Denise, and Centers for Disease Control and Prevention (C.D.C.). "Abortion surveillance—United States, 2011." MMWR Surveill Summ 63, no. 11 (2011): 1-41.

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

[xxvi] https://republicans-energycommerce.house.gov/news/press-release/select-investigative-panel-releases-final-report/

[xxvii] https://www.centerformedicalprogress.org/human-capital/special-report-partial-birth-abortion-at-planned-parenthood/#:~:text=Of%20note%2C%20feticides%20like%20digoxin%20cannot%20be%20used,digoxin%20typically%20serve%20two%20purposes%20for%20abortion%20providers.

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

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

[xxx] Quoting Stenberg v. Carhart, 530 U.S. 914, 946-947 (2000)(Stevens, J., concurring).

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

[xxxii]  Gonzales v. Carhart, 550 U.S. 135 (2007).

[xxxiii] https://www.liveaction.org/news/the-troubled-past-of-embattled-abortion-doctor-leroy-carhart/

[xxxiv] Id.

[xxxv] Id.

[xxxvi]  Stenberg v. Carhart, 530 U.S. 914, 958 (U.S. 2000) (Kennedy, J., dissenting)

[xxxvii] Gonzales v. Carhart, 550 U.S. 124, 136 (U.S. 2007)

[xxxviii] Warren M. Hern, M.D., and Billie Corrigan, R.N., What About Us? Staff Reactions to the D & E Procedure, paper presented at the Annual Meeting of the Association of Planned Parenthood Physicians, San Diego, California, (October 26, 1978).