By Calvin Freiburger
A coalition of twenty states is asking the Supreme Court to side with Kentucky in its bid to have the United States Supreme Court uphold its ban on a second-trimester abortion procedure infamous for dismembering babies in the womb.
In 2018, former Kentucky Republican Gov. Matt Bevin signed HB 454 into law, which bans the dilation and evacuation (D&E) abortion procedure. D&Es are more commonly known as “dismemberment abortions” because they function by tearing a preborn baby apart limb by limb.
The left-wing American Civil Liberties Union (ACLU) quickly sued, and U.S. District Judge Joseph McKinley sided with them last May. This summer, the U.S. Circuit Court of Appeals for the Sixth Circuit agreed, claiming that HB 454 “imposes an undue burden” on “all of the individuals it restricts” and denying Republican Attorney General Daniel Cameron’s request to defend the law after Secretary of the Cabinet for Health and Family Services (CHFS) Eric Friedlander chose not to appeal the case.
Now Cameron wants to take the case to the nation’s highest court, and his counterparts in twenty other states — Arizona, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi,Missouri, Montana, Nebraska, Ohio, Oklahoma,South Carolina, South Dakota, Tennessee, Texas,Utah, and West Virginia — have signed onto an amicus brief supporting him, WYMT reports.
“The threats to these sovereign interests are particularly acute in this case,” the brief argues. “The Sixth Circuit panel majority deprived the Commonwealth of Kentucky from seeking complete appellate review of the District Court’s injunction invalidating one of its duly enacted laws. And it did so on purely procedural grounds, holding that the Kentucky Attorney General could not intervene to vindicate state law on appeal because a single state officer had decided to abandon defense of a law passed by both houses of its Legislature and signed into law by its Governor.”
“Absent correction by this Court, the laws of all states are threatened by the possibility that their democratic processes will be circumvented by strategic surrenders,” the brief continues. “It is one thing to have state laws invalidated when they are found unconstitutional after full litigation of the constitutional merits … But it is quite another to permit federal courts to be used as the contrivance to circumvent state democratic processes and empower single officials to repeal disfavored laws through the simple expedient of capitulation in litigation.”
Pro-abortion activists have objected to the “dismemberment” label as inflammatory and misleading, but the abortion industry itself has effectively admitted its accuracy. The National Abortion Federation’s own instructional materials describe dismemberment abortions as “grasping a fetal part,” then “withdraw[ing] the forceps while gently rotating it” to achieve “separation.”
Defenders also claim dismemberment abortions are the safest second-trimester procedure available (for the mother), but pro-lifers suspect abortionists actually prefer D&E abortions because they can fit more into their schedule, and therefore make more money.
As to the merits of the rulings against the law, supporters note that in 2000’s Stenberg v. Carhart, the pro-abortion Supreme Court Justice John Paul Stevens admitted that partial-birth abortion and dismemberment abortion were “equally gruesome,” and that it was “simply irrational” to conclude that one was “more akin to infanticide than the other.” Stenberg struck down the federal partial-birth abortion ban, but Gonzales v. Carhart ultimately upheld it in 2007.