Analysis Law and Policy

One of the Worst Abortion Restrictions Has Its Roots in an 11-Year-Old Supreme Court Case

Jessica Mason Pieklo

At least three federal courts of appeals are considering cases on dilation and evacuation abortion bans that could be the next big test of Roe v. Wade.

A federal court last week temporarily blocked a Kentucky law that seeks to ban the most common form of ending a pregnancy in the second trimester: dilation and evacuation (D and E) abortion. The law, like similar measures passed in eight other states, is the inevitable outgrowth of Gonzales v. Carhart, the 2007 U.S. Supreme Court decision that upheld a previous attack on second-trimester abortion rights. And like Gonzales‘ fight over “partial-birth abortions,” the fight over the constitutionality of D and E bans is poised to be the Supreme Court’s next big test of the durability of Roe v. Wade.

At this point, there’s a lot of litigation swirling around one of the most potentially devastating abortion restrictions currently on the books, and none of it is settled. Any one of these cases could be the next Gonzales: in which, 11 years ago today, anti-choice rhetoric transformed into abortion rights jurisprudence.

In addition to Kentucky, Alabama, Arkansas, Kansas, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia have all enacted some form of ban on D and E abortions. Only Mississippi and West Virginia’s laws are in effect. Federal or state courts have blocked the rest. Alabama, Arkansas, and Texas have their cases pending before the Eleventh, Eighth, and Fifth Circuit Courts of Appeals, respectively. A September 2019 trial is scheduled in the case challenging Louisiana’s ban, while the Kansas Supreme Court could rule any day now on the constitutionality of that state’s ban. Back in Kentucky, a federal judge will hear arguments in June on whether to make the order temporarily blocking that ban permanent. Regardless of the decision, an appeal to the Sixth Circuit Court of Appeals is all but given.

In the language of these bans, D and E abortions are typically relabeled “dismemberment” abortions. This is a page out of the Gonzales playbook, when conservative lawmakers zeroed in on a relatively uncommon variation of dilation and evacuation abortion known by providers as an “intact D and E,” or “D and X,” abortion. Finding “intact D and E” an insufficiently salacious enough description for the procedure, anti-choice activists coined the phrase “partial-birth abortion.”

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Neither “dismemberment abortion” or “partial-birth abortion” are medical terms. They are political ones, designed to try to evoke the greatest emotional response.

Then there is the rhetorical play anti-choice activists make to emotion over scientific evidence and the rule of law. It clearly worked in Gonzales: “No one would dispute that, for many, D and E is a procedure itself laden with the power to devalue human life,” Justice Anthony Kennedy wrote for the majority in that case.

“Whether to have an abortion requires a difficult and painful moral decision,” Kennedy continued. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” In those two sentences Kennedy parroted anti-choice talking points about abortion-regret syndrome—a half-baked medical theory he admits has no basis in “reliable data”—into law. That is not legal reasoning; that is paternalistic moralizing.

And the anti-choice movement had worked hard to get that paternalistic moralizing embedded into case law. Seven years prior, Justice Kennedy had written a searing dissent in Stenberg v. Carhart, a case that struck as unconstitutional Nebraska’s “partial-birth abortion” ban. That law failed because, among other reasons, it contained no exception for the health of the pregnant person. Undeterred, the anti-choice movement pressed forward with a nearly identical federal law, a similar litigation strategy, and, as it would turn out, a little luck. Between the time Stenberg and Gonzales were decided, the Court itself underwent a lurch to the right when virulently anti-choice Justice Samuel Alito replaced the reliably pro-choice Justice Sandra Day O’Connor.

In one of their briefs to the Eighth Circuit Court of Appeals, attorneys for the State of Arkansas have employed a similar strategy to defend that state’s D and E ban. “Appellee Frederick Hopkins argues that the people of Arkansas variously prohibited the barbaric practice of ripping an unborn child to pieces, barred sex selection, mandated the respectful treatment of human remains, and imposed reporting requirements where a girl’s age indicates she is more likely to be a sexual assault victim—all simply to impede access to a procedure that is healthier than pregnancy,” the brief states. 

The brief later chides Hopkins and his attorneys for “emotionlessly” describing the D and E procedure banned before going all in on emotion over evidence, quoting Justice Kennedy’s dissent in Stenberg for added effect.

“But [Hopkins] cannot hide the horrifying truth: Dismemberment ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living’ unborn child, rip it off, and continue ripping body parts off until finally the unborn child ‘dies just as a human adult or child would’ by bleeding to death with only ‘a tray full of [tiny human] pieces’” remaining,” the brief states. 

Again, attorneys don’t cite Kennedy here for his legal reasoning. They cite him for his moral condemnation. 

So where does that leave us, in the midst of the legal storm surrounding D and E abortion bans? We could have decisions in at least one of the appellate cases by the end of the year. And while each case is pending in a conservative court of appeals, the laws should remain struck. 

But it only takes one rogue court to create the kind of circuit split the Roberts Court would likely have to address. With at least three different courts weighing in, those odds start to increase. As I’ve written before: Should that happen, Justice Kennedy would find himself again in the spotlight as the potential deciding vote. 

That assumes, however, Kennedy is still on the Court when such a challenge would land. That is not at all a safe assumption. If Kennedy retires and Trump gets the chance to appoint yet another Supreme Court justice, conservatives may see their long game of methodically building off of Gonzales pay the dividends they had hoped for: with a ruling that guts, or reverses, Roe v. Wade entirely.

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