By Dave Andrusko
Tip of the hat to an unusual source: the pro-abortion blog Rewire.news.
In a story posted yesterday, the author, Jessica Mason Pieklo, reminded me of a story we posted back in late August when a three judge panel of the 11th Circuit Court of Appeals upheld a lower court verdict striking down Alabama’s Unborn Child Protection from Dismemberment Abortion Act.
Ten states have enacted a ban on dismemberment abortions.
The law bans a hideous dismemberment abortion technique, which the panel readily acknowledged (and which made the author of the Rewire.news story uncomfortable) : It
involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating. …
The State has an actual and substantial interest in lessening, as much as it can, the gruesomeness and brutality of dismemberment abortions. That interest is so obvious that the plaintiffs do not contest it.
Nonetheless, according to the panel,
But the fact that the Act furthers legitimate state interests does not end the constitutional inquiry. The legitimacy of the interest is necessary but not sufficient for a pre-viability abortion restriction to pass the undue burden test.
A coalition of 20 state attorneys general has filed a 30-page brief with the Supreme Court, writes Pieklo, “argu[ing] for the constitutional power to endanger patient safety.” Of course that is absurd, but it gives you some appreciation how nervous the Abortion Industry and its support staff in the media are that the Supreme Court will take the case and agree the ban is constitutional!
Let’s go beyond Pieklo’s distortions of the amicus brief and spotlight three arguments that explain why Alabama’s SB 363 meets constitutional muster.
*The key is the very first paragraph—balance:
The question presented in this case goes to the heart of the States’ authority to regulate abortion. This Court has held that States (1) have an interest in protecting and fostering respect for human life, including unborn life, and (2) have the power to regulate the medical profession, including on matters of medical judgment and ethics connected to abortion. See Gonzales v. Carhart, (2007). As a result, not only may States prohibit specific abortion procedures that threaten to erode respect for life, but they may balance any related medical tradeoffs when they do so, on condition that they do not unduly burden the decision to obtain an abortion. Although the decision to obtain an abortion has been constitutionally protected, access to a particular abortion method — even a method favored by abortion providers — is not.
Abortionists prefer an abortion methods that the amicus brief describes as “an exceptionally grisly one, at least as, and potentially even more so than, the ‘partial birth’ procedure at issue in Gonzales.” All the law requires is the baby’s demise before the abortionist tears her to pieces. But this is too much for the Abortion Industry.
*The brief emphasizes that the states must have the authority “to protect both unborn life and human dignity in that small way.”
The States’ authority to regulate abortion for the purpose of protecting unborn life and advancing respect for life is unquestionable. See, e.g., Gonzales. Alabama defended the challenged abortion regulation on that ground. It is also beyond serious question that this abortion procedure threatens to undermine respect for life. Alabama is thus empowered to defend against that threat. Gonzales held that when a State regulates abortions for the sake of fostering respect for life, including unborn life, it has leeway to balance that interest against possible medical tradeoffs. Even when some abortion providers consider a forbidden procedure to be medically preferable, the State’s reasonable resolution of the tradeoffs prevails. Abortion providers instead must work to find abortion methods that are more consistent with respect for life. The nature of the State’s interest distinguishes cases like this one and Gonzales from cases like Hellerstedt, where the State justified its abortion regulations solely in medical terms.
*One other. The amicus brief argues that the litigants are going far beyond demanding the right to slaughter living unborn children:
abortion providers and their counsel appear to have interpreted Hellerstedt as declaring open season on State abortion laws (sometimes even including common sense regulations as fundamentally sound as requiring sterile instruments). Only this Court can clarify that Hellerstedt was not the watershed abortion providers claim it was and reaffirm the right of States to enact reasonable abortion regulations.