SCOTT HARRIS, IN HIS OFFICIAL CAPACITY AS STATE HEALTH OFFICER, ET AL. v. WEST ALABAMA WOMEN’S CENTER, ET AL.
No. 18–837
SUPREME COURT OF THE UNITED STATES
June 28, 2019
588 U. S. ____ (2019)
THOMAS, J., concurring
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, concurring.
In 2016, Alabama adopted a law prohibiting “dismemberment abortion[s].”
“In this type of abortion the unborn child dies the way anyone else would if dismembered alive. It bleeds to death as it is torn limb from limb. It can, however, survive for a time while its limbs are being torn off. . . . At the end of the abortion—after the larger pieces of the unborn child have been torn off with forceps and the remaining pieces sucked out with a vacuum—the abortionist is left with a tray full of pieces.” West Alabama Women’s Center v. Williamson, 900 F. 3d 1310, 1319–1320 (CA11 2018) (citations and internal quotation marks omitted).
Dismembering a child alive is—in respondents’ words—“the most commonly used second-trimester abortion method,” and it “account[s] for 99% of abortions in the state from [15 weeks] onward.” Brief in Opposition 1. Put differently, the more developed the child, the more likely an abortion will involve dismembering it.
The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible. But under the “undue burden” standard adopted by this Court, a restriction on abortion—even one limited to prohibiting gruesome methods—is unconstitutional if “the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016) (slip op., at 1) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992) (plurality opinion); emphasis deleted). Here, abortion providers persuaded the District Court—despite mixed medical evidence—that other abortion methods were too risky, and the lower courts therefore held that Alabama’s law had the effect of burdening abortions even though it did not prevent them. Ordinarily, balancing moral concerns against the risks and costs of alternatives is a quintessentially legislative function. But as the Court of Appeals suggested, the undue-burden standard is an “aberration of constitutional law.” 900 F. 3d, at 1314; Stenberg v. Carhart, 530 U. S. 914, 982 (2000) (THOMAS, J., dissenting) (explaining that the standard “was constructed by its authors out of whole cloth”).
This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control. Earlier this Term, we were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2). Today, we are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution. Gonzales v. Carhart, 550 U. S. 124, 169 (2007) (THOMAS, J., concurring). Although this case does not present the opportunity to address our demonstrably erroneous “undue burden” standard, we cannot continue blinking the reality of what this Court has wrought.