Alabama AG asks Supreme Court to review ruling which overturned state’s Unborn Child Protection from Dismemberment Abortion Act

By Dave Andrusko

Alabama Attorney General Steve Marshall

Among National Right to Life’s and its 50 state affiliates’ highest priorities is enactment of laws forbidding the dismemberment of living unborn children. Ten states have banned this hideous abortion technique which uses steel tools to rip heads and legs off of tiny torsos as the defenseless child bleeds to death.

The latest certiorari petition filed with the Supreme Court came from Alabama Attorney General Steve Marshall. Marshall asked the justices to review the 11th U.S. Circuit Court of Appeals’ August 2018 ruling against Alabama’s 2016 law.

NRL News Today reported on that split decision by a three judge panel of the 11th Circuit Court of Appeals which upheld U.S. District Judge Myron Thompson’s ruling striking down the law. We also wrote at length about Judge Joel F. Dubina’s very thoughtful dissent.

Marshall’s 33-page amicus brief, filed in late December, came two days after Indiana Attorney General Hill asked the High Court to overrule lower court decisions striking down HEA 1337. That law targets the practice of targeting unborn babies diagnosed with a genetic anomaly, most often Down syndrome and requires that abortion clinics bury or cremate the remains of aborted babies in a dignified fashion.

Nine other states have enacted laws forbidding dismembering living unborn babies.

In the Introduction to Marshall’s 33-page brief, the AG notes

The court of appeals recognized the State’s strong “interest in lessening, as much as it can, the gruesomeness and brutality of dismemberment abortion.” But it nonetheless felt constrained by this Court’s abortion precedents to strike down the regulation. Although the court of appeals expressed disquiet over “the aberration of constitutional law relating to abortion,” it also recognized that “there is only one Supreme Court, and we are not it.”

Marshall carefully explains that Alabama’s law is consistent with the reasoning the Supreme Court used in upholding the federal ban on partial-birth abortions. [Internal citations omitted.]

Against this backdrop, this petition does not ask the Court to overturn Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Instead, Alabama asks only that the Court confirm the continuing validity of Gonzales v. Carhart, (2007), which the court of appeals declined to apply in light of confusing language in Whole Women’s Health v. Hellerstedt, (2016). The State’s law “expresses respect for the dignity of human life,” and there is “medical support for [Alabama’s] position” that the law does not “create[] significant health risks for women.” The Court should grant the petition and reaffirm that the Constitution does not condemn such laws.

Marshall explained, as have other state attorneys general, that there are alternative methods to the nihilistic practice of dismemberment abortions.

He argues that because so many states have passed similar bans, “The constitutionality of a state ban on dismemberment abortion is an important question of national significance.”

Marshall concludes, “As the court of appeals expressly recognized, only this Court can resolve the inconsistency in treatment between partial-birth and dismemberment abortion. The Court should grant certiorari and reverse.”