Supreme Court Rejects Alabama Bid to Bar Common Abortion Method

(Bloomberg) -- The U.S. Supreme Court steered clear of the nation’s fractious abortion debate, refusing to consider Alabama’s effort to ban the most common method used for women in their second trimester of pregnancy.

The state was seeking to revive a ban on a method, known as dilation and evacuation, that involves dismembering the fetus and then removing it from the uterus. Alabama called the procedure a “particularly gruesome type of abortion” that states have the power to prohibit.

The court as a whole made no comment, though Justice Clarence Thomas renewed his call for the court to reconsider its abortion-rights precedents. "We cannot continue the reality of what this court has wrought," Thomas wrote.

It’s the second time in recent weeks the Supreme Court has passed on a chance to add an abortion case to its 2019-2020 calendar. In May the court turned away Indiana’s bid to bar abortions based on a fetus’s race or gender or the risk of a genetic disorder. Still, the justices did uphold a separate Indiana law requiring clinics to bury or cremate fetal remains.

The high court action Friday came a day after the justices issued the final opinions of their nine-month term.

Abortion opponents have been trying to take advantage of the high court’s beefed-up conservative majority now that Justice Brett Kavanaugh has succeeded the retired Justice Anthony Kennedy.

Opponents of the Alabama law say it would have eliminated access to abortion in the state after the 15th week of pregnancy. Nine other states have similar laws, though courts have blocked those everywhere except West Virginia and Mississippi.

“The method prohibited here is the standard operating procedure, the heartland of second-trimester abortion care,” argued the Alabama clinics and doctors that sued to challenge the law.

The law is separate from a new, broader Alabama measure that would make abortion a felony in almost all cases. That law takes direct aim at Roe.

‘One Supreme Court’

In striking down the less sweeping Alabama law, an Atlanta-based federal appeals court suggested it was doing so only because it was bound by the Supreme Court’s abortion-rights precedents.

“In our judicial system, there is only one Supreme Court, and we are not it,” Judge Ed Carnes wrote for the three-judge panel. In a concurring opinion, Judge Joel Dubina said he agreed with Supreme Court justices who have called for the court to overturn its rulings that guarantee the right to abortion.

The appeal by Alabama Attorney General Steve Marshall said the Supreme Court could uphold the state’s ban without toppling any precedents. Marshall contended that the measure was similar to a federal ban on what critics call “partial-birth abortion,” upheld in 2007 by the Supreme Court. The law bars abortions in which a fetus is partially removed from the mother before being killed.

“There is no meaningful difference between death-by-dismemberment abortion in the womb and partial-birth abortion outside it,” argued Marshall, a Republican.

Marshall said his appeal didn’t challenge the 1992 Supreme Court ruling that reaffirmed the constitutional right to abortion.

The state says there are alternative approaches to abortion in which doctors can kill the fetus before dismembering and removing it, but a federal trial judge rejected that contention. The judge said none of those approaches is a feasible method and each would subject women to significant health risks.

The legal challenge was filed by two of Alabama’s five abortion clinics and two doctors. They say the lower courts correctly concluded that the measure would create an insurmountable obstacle to women seeking abortions.

The Supreme Court “has never so much as suggested that a theoretical alternative proven by the medical evidence to be infeasible in practice could justify a prohibition of the only available abortion method,” the group argued in court papers.

The case is Harris v. West Alabama Women’s Center, 18-837.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Ros Krasny

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