This may be the year that anti-choice advocates finally stop posturing to the courts that they care about the well-being of patients.
That is, if an amicus brief filed to the U.S. Supreme Court by 20 conservative state attorneys general and one governor earlier this month is any indication. Their brief is a full-throated embrace of government power over individual autonomy; it argues states have the ability to force abortion patients to undergo statistically riskier procedures as part of their power to regulate abortion for “moral and ethical” purposes.
The brief—filed by Louisiana Attorney General Jeff Landry (R) and joined by attorneys general from states like Arizona, Texas, Missouri, Indiana, Nebraska, Arkansas, and Oklahoma, along with Kentucky Gov. Matt Bevin (R)—urges the Roberts Court to take the case of Marshall v. West Alabama Women’s Center. The case challenges SB 363, an Alabama measure that targets the most common form of second-trimester abortions: dilation and evacuation (D and E) procedures.
First enacted in 2016, SB 363 has been blocked by federal courts—most recently, and reluctantly, by the conservative 11th Circuit Court of Appeals—as an unconstitutional pre-viability abortion ban. SB 363 prohibits a physician from performing a “dismemberment abortion,” the phrase the anti-choice right has coined to describe D and E abortions. The law has no exceptions for cases of rape, incest, or fetal anomaly, though it does allow D and Es if they are necessary to prevent serious health risk to the pregnant person. SB 363 also subjects providers to up to two years in prison for violations.
By the usual standards of Supreme Court advocacy, there’s no reason why the Roberts Court should take this case. To begin with, the federal courts are all in agreement: Laws like SB 363 are unconstitutional pre-viability bans.
It’s possible that agreement comes to an end at some point. Both the Eighth Circuit and the Fifth Circuit Courts of Appeals are considering similar bans out of Arkansas and Texas, respectively. It’s worth keeping in mind that if the judges on the 11th Circuit Court of Appeals could have found a way to uphold Alabama’s law, their opinion makes it clear that they would have. But under Roe v. Wade and Planned Parenthood v. Casey‘s undue burden framework, they couldn’t.
So far, both the Eighth and Fifth Circuits have similarly been unwilling to reject that framework entirely. But those circuits have only grown more conservative over Trump. We’ve seen at least one Trump appointee to the Fifth Circuit willing to strike at Roe outright in a concurring opinion in a case tangentially involving abortion rights. It’s only a matter of time before one of his judges takes that next step in a majority opinion.
Until that happens in the D and E bans, though, there’s no conflict in the federal courts for the Supreme Court to step in and resolve.
The states’ attorneys general concede this point in their brief. Instead, they tell the Court that it should take the case now in order to “clarify and reaffirm states’ authority to regulate abortion for moral and ethical purposes.” That authority, the attorneys general argue, comes from Gonzales v. Carhart.
I’ve written before about how Gonzales v. Carhart—and specifically Justice Anthony Kennedy’s majority opinion in the case—set the stage for the wave of D and E bans sweeping conservative states. In that case, the Supreme Court upheld an unconstitutional pre-viability abortion ban because of the availability of other procedures, notably dilation and evacuation. And in doing so, he used stigma-filled rhetoric that anti-choice advocates are now using to undercut D and E itself.
In the first round of D and E legislation passed in 2015, reproductive rights advocates successfully used Kennedy’s reliance on the availability of the D and E procedure in Gonzales in their legal challenges. And it’s worked, so far. But Kennedy is no longer on the Court, and his replacement, Justice Brett Kavanaugh, has already shown a willingness to find ways around precedent to try and uphold blatantly unconstitutional abortion rights legislation.
It’s as if the states’ attorney generals wrote their brief with him in mind.
Borrowing Kennedy’s tone and language in the Gonzales decision, the attorneys general describe a D and E abortion as an “exceptionally grisly” procedure, one that is “at least as and potentially even more so” than the procedure banned under Gonzales. The states’ brief then goes on to argue that Alabama’s ban is not really a ban at all. According to attorneys defending these kinds of bans, doctors can take a series of steps to ensure fetal demise prior to performing a D and E and be compliant with the law.
But according to medical testimony that the trial court relied on to block the ban as an undue burden, those steps all subject the patient to greater, and unnecessary, medical risk. And just because an alternative procedure is available in theory does not mean it is available in reality. Some measures, like umbilical cord transection, require additional training that not all practitioners have.
The conservative state attorney generals do not care: “Abortion providers may prefer to perform abortions the old way and may have qualms with the state’s resolution of medical uncertainties, but the moral and ethical judgment is the State’s to make and the medical tradeoffs are the State’s to balance.”
Let’s be very clear here that those “medical tradeoffs” argued for in this brief are unnecessary and involve increased medical risks for pregnant people. But for the conservative state officials, those risks should not outweigh the power of the state to advance fetal life.
It’s hard to understate the power claim the states make here. They are quite literally arguing that lawmakers, not trained medical professionals, are in the best ethical and moral position to determine patient care. And they are simultaneously arguing that those lawmakers are free to disregard patient safety if doing so advances potential fetal life. And they insist the Constitution supports this position.
Reproductive rights advocates will file their response March 4. After that, we will have to wait and see whether the Supreme Court will agree.