The Pro-Life movement must force SCOTUS to face dismemberment abortions.


Recently, the Supreme Court of the United States (SCOTUS) decided not to hear a lawsuit challenging an Indiana law prohibiting discriminatory abortions, thereby thwarting Pro-Life hopes that SCOTUS would use this case to correct current abortion jurisprudence.  This represented the first significant disappointment in SCOTUS for the Pro-Life movement since Justice Brett Kavanaugh replaced former Justice Anthony Kennedy.  Unfortunately, SCOTUS followed that disappointment with another by refusing to hear a lawsuit challenging Alabama’s Dismemberment Abortion Ban (DAB).  After what seems to be a disastrous SCOTUS term, many Pro-Lifers are asking, “where does the Pro-Life movement go from here?”  What is the next case SCOTUS should take up to reconsider the court’s current stance on abortion?  The Supreme Court’s decisions and Justice Thomas’ commentary provide the road map, which involves the Dismemberment Abortion Ban Texas passed in 2017.


In his concurrence on the denial to hear the lawsuit over Indiana’s law, Justice Clarence Thomas articulated the eugenic roots of the abortion movement forcefully and profoundly, highlighting the importance and prudence of protecting preborn children from discriminatory abortions.  However, a more useful insight comes from the majority opinion.  SCOTUS stated a hearing was not granted for Indiana’s law because other circuit courts have not heard or ruled on the subject.  Justice Thomas, alluding to the reality that SCOTUS cannot run from abortion, wrote, “this Court is dutybound to address its scope.”  Eventually, SCOTUS must define vague legal theories such as “undue burden test,” must correct scientific inaccuracies within a coherent framework, and must define states’ rights to regulate abortion.  The Pro-Life movement must continue to push bans on dismemberment abortions to compel SCOTUS to address and correct the previous convoluted rulings.


Justice Thomas echoed his frustration over Alabama’s DAB.  He wrote, “the notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible.”  The case over dismemberment abortion “serves as a stark reminder that [the Supreme Court’s]abortion jurisprudence has spiraled out of control.”


A dismemberment abortion is a particularly revolting method of killing a preborn child.  An abortionist kills the child by using surgical instruments to rip her body apart piece by piece.  Numerous states, including Texas, have asserted their state interest in protecting preborn children from this gruesome and barbaric method.  These Pro-Life laws have generated lawsuits from the abortion industry, offering the legal opportunities necessary for SCOTUS to take up the case.


Bans on dismemberment abortions are judiciously written for an appearance before SCOTUS as they ask a targeted, dynamic legal question: Is a dismemberment abortion inhumane enough to warrant legal prohibition?  When SCOTUS upheld the federal Partial Birth Abortion Ban in Gonzales v. Carhart in 2007 the court concluded definitively that some methods of abortion are too inhumane, and too barbaric to remain legal.  By their design, the DAB cases require SCOTUS to revisit this principle and define the precise limitations used in the Gonzales v. Carhart ruling, challenging the very scope of Roe v. Wade


The United States Court of Appeals for the Eleventh Circuit determined Alabama’s DAB violated the Constitution as interpreted by Roe v. Wade.  And the existence of a split in decisions between circuit courts is a crucial element for SCOTUS deciding whether or not to take up a case.  Therefore, Texas comes into the picture.  A lawsuit over Texas’s DAB is currently awaiting a decision by the United States Court of Appeals for the Fifth Circuit.  The Fifth Circuit is one of the more agreeable circuit courts in the country for Pro-Life laws, making a favorable ruling a strong possibility.  A favorable ruling would necessitate SCOTUS taking up the issue of dismemberment abortion bans to settle the split circuit decisions.  

The Texas legislature failed to enact a Pro-Life law that directly saves preborn children during the 86th Legislative Session (including a bill that would have banned discriminatory abortions), but Texas’s most critical Pro-Life victory from 2017 still has the potential to lead to a nationwide Pro-Life victory.  Although SCOTUS temporarily passed on hearing a lawsuit challenging a Dismemberment Abortion Ban, this is the most promising fight the Pro-Life movement needs before the Supreme Court.


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