The U.S. Supreme Court declined Friday to revive Alabama’s ban on a specific grisly abortion procedure, but not before Justice Clarence Thomas criticized the institution for its moral logic.
The case involved a 2016 Alabama law prohibiting dilation and evacuation (D&E) abortion -- a late-term procedure in which an unborn baby is torn apart limb by limb, until the womb is empty. Pro-life critics, including Alabama Attorney General Steve Marshall, have labeled it “dismemberment abortion.”
The U.S. 11th Circuit Court of Appeals blocked the law, although two of the three judges indicated they would have upheld the law but were bound by Supreme Court precedent.
Thomas joined his colleagues in affirming the circuit’s decision but said the Supreme Court eventually must face the fallout from its past abortion decisions.
“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote.
He quoted the circuit court’s decision in describing the procedure in excruciating detail: “It bleeds to death as it is torn limb from limb. It can, however, survive for a time while its limbs are being torn off. . . . At the end of the abortion -- after the larger pieces of the unborn child have been torn off with forceps and the remaining pieces sucked out with a vacuum -- the abortionist is left with a tray full of pieces.”
Thomas, who is on record as opposing the Supreme Court’s pro-choice rulings, said the Alabama case serves as a “stark reminder” that “our abortion jurisprudence has spiraled out of control.” Under Supreme Court precedent, an abortion restriction is unconstitutional if it places an “undue burden” on a pregnant woman.
“Earlier this Term, we were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child,” he wrote. “… Today, we are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution.
“Although this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, we cannot continue blinking the reality of what this Court has wrought.”
Thomas was nominated by President George H.W. Bush.
“Ordinarily,” he wrote, “balancing moral concerns against the risks and costs of alternatives is a quintessentially legislative function. But as the Court of Appeals suggested, the undue-burden standard is an ‘aberration of constitutional law.’”
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com