Analysis Law and Policy

Supreme Court Will Consider Weighing In on Alabama Law Banning Most Second-Trimester Abortions

Jessica Mason Pieklo

The Roberts Court could step into the fight over states' efforts to ban dilation and evacuation abortions.

Abortion rights will be back before the U.S. Supreme Court on Friday, when the justices will consider reviewing a lower court decision that blocked an Alabama ban on the most common method for second-trimester abortions.

The case is Marshall v. West Alabama Women’s Center and involves a challenge to SB 363, an Alabama law that targets dilation and evacuation (D and E) procedures. First passed in 2016, the law prohibits a physician from performing a “dismemberment abortion”—the favorite anti-choice term for D and E abortions—unless it is necessary to prevent serious health risk to the pregnant person. SB 363 contains no exceptions for cases of rape, incest, or fetal anomaly; it subjects physicians to up to two years in prison for violations.

In defending its ban, attorneys for the state of Alabama suggested alternative, riskier procedures that physicians can use to ensure fetal demise and still be compliant with the law. The lower court heard evidence about those methods, which included information about their attendant risks, their technical difficulty, their untested nature, and the time and costs associated with performing them. The court also considered the lack of training opportunities for such alternative methods and the inability to recruit experienced practitioners to perform them. Ultimately, the lower court found this evidence amounted to a substantial obstacle to getting an abortion. The 11th Circuit upheld those findings and ruled that these alternatives are not a suitable workaround to an otherwise unconstitutional abortion ban.

Currently, the federal courts all agree that measures like Alabama’s are patently unconstitutional. That should make this case an easy one for the justices to turn away. By all traditional measures of Supreme Court review, there’s no reason for the Court to take this case.

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But there’s also no reason for the Court to consider—for the ninth time and counting—taking the case involving Indiana’s fetal burial requirements and its ban on abortions based on the race, sex, or apparent disability of the fetus. As with D and E bans, the federal courts are in agreement that those types of restrictions are unconstitutional. Yet the Court is giving Indiana’s petition a hard look, which means it’s likely to do the same in Marshall.

When the justices review Marshall, they’ll review the 11th Circuit’s 40-page opinion. That means they’ll be reviewing a decision that calls into question, right out of the gate, the validity of abortion rights jurisprudence. They’ll be considering an opinion that, even as it blocks an abortion restriction, borrows heavily from the language of anti-choice activists to describe D and E procedures as “tearing apart. … what was until then a living unborn child.”

And that’s exactly the point of Alabama’s petition: to keep a steady drumbeat of anti-abortion sentiment from conservative appellate courts buzzing in the justices’ ears. The justices might not take the Alabama case. But it’s only a matter of time before the Court weighs in again on abortion rights.

Texas is another conservative state that joined the chorus in passing a D and E ban, and in March the Fifth Circuit Court of Appeals said it was going to hold off on deciding whether or not that ban was unconstitutional until the Supreme Court decided what it was going to do with another abortion rights case: June Medical Services v. Gee. That is the case involving a Louisiana law, Act 620, that requires doctors who perform abortions to have admitting privileges at a nearby hospital. In February, the Supreme Court stayed a Fifth Circuit decision that would have allowed Act 620 to take effect, pending advocates’ appeal of that decision to the Roberts Court. That petition is due this month, meaning the case could end up on the Court’s calendar for next term. Meanwhile, the very conservative Eighth Circuit Court of Appeals heard arguments in December in a case challenging Arkansas’ D and E ban. A ruling in that case could happen any day now.

If the current Supreme Court term is ending on a relatively quiet note following the Brett Kavanaugh confirmation battle, the 2019-20 term has the potential to be a barnburner.

The Court could announce as early as next Monday if it will hear Marshall v. West Alabama Women’s Center next term.

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