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Tipsheet

Alabama Asks the Supreme Court to Review and Uphold Ban on 'Gruesome' Dismemberment Abortions

Alabama Attorney General Steve Marshall asked the Supreme Court Thursday to hear a case on a 2016 Alabama law banning second trimester “dilation and evacuation” abortion procedures which the state called “dismemberment abortions.” The ban on these procedures has been ruled unconstitutional by lower courts.

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Marshall described the “gruesome” abortion procedure in his petition to the Supreme Court.

A doctor “dismember[s] a living unborn child and extract[s] him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp . . . a portion of the unborn child’s body to cut or rip it off.”

“Dismemberment abortion is similar to partial birth abortion, which this Court has said the government can prohibit,” he claimed.

The state’s petition also emphasized the minimal impact the ban would have on abortion clinics and abortionists. It said that only seven percent of abortions in the state would be affected by the ban as the majority of women in the state get abortions before the second trimester when the procedure is performed.

“Although the law is a procedure ‘ban,’ its only practical requirement is that a doctor kill the unborn child through a medically appropriate procedure before removing the unborn child’s body from the woman,” according to the petition.

“For the approximately 7% of abortions that the Act may affect, there are alternatives available that do not require a doctor to terminate fetal life by ripping a living fetus apart limb by limb,” Marshall added. “As described in more detail below, an abortionist may, first, end fetal life by an injection or by severing the umbilical cord and, then, remove the dead fetus in whatever way is appropriate.”

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Marshall called the question of the constitutionality of such a ban “an important question of national significance” and pointed out that at least nine states have enacted such bans.

“Litigation over some of these similar abortion laws is pending in the Fifth Circuit, the Eighth Circuit, and multiple state courts,” the petition noted.

Last year, a judge sided with the two abortion clinics in Alabama that perform such procedures, the West Alabama Women's Center in Tuscaloosa and the Alabama Women's Center in Huntsville. 

District Judge Myron Thompson ruled that the law placed “an impermissible burden on a woman's ability to choose an abortion.”

An appeals court upheld that ruling in August.

"At that stage of pregnancy, it is settled under existing Supreme Court decisions that the State of Alabama cannot forbid this method of abortion entirely," the appeals court wrote in its decision.

"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,” they acknowledged. “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."

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The ACLU is representing the abortion clinics in the case and issued a statement on Alabama’s petition this week.

“The state’s request that the high court take up the case is part of a long-standing strategy to ban abortion in Alabama,” Randall Marshall, executive director of the ACLU of Alabama commented. “The ACLU is committed to seeing this fight through to ensure that all women in Alabama can get the care they need without political interference, shame, or stigma.”

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