Well, that didn’t take long. Less than a month after Brett Kavanaugh was sworn in as a justice in the face of protests from those who feared he’d resist Roe v. Wade, an Alabama abortion case seems headed for the Supreme Court. The state’s attorney general is asking the court to review a blocked restriction on a type of abortion. If the Supreme Court overturns the ban, it would mean a major blow for the pro-abortion rights cause and could signal that Kavanaugh’s critics were right about his hostility to Roe v. Wade all along.
At issue is the abortion method called “dilation and evacuation” (D&E). Whole Women’s Health and the Planned Parenthood Center for Choice argue that D&E is the “safest” way to terminate a pregnancy after 15 weeks. Banning D&E, they assert, allows doctors “no reasonable alternatives by which to continue providing this abortion care” during that stage of pregnancy.
Alabama’s attorney general is filing a petition asking the Supreme Court to review his state’s latest attempt to ban D&E. The state legislature voted to make the procedure illegal in 2016; later that year, a U.S. District Judge in Alabama declared the new law unconstitutional. Alabama appealed that ruling, but the 11th Circuit U.S. Court of Appeals upheld it in August.
Federal appeals courts are the second-highest courts in the land, so the next step is the Supreme Court. And that’s exactly where Alabama intends to take this case. If the state gets its way, it will end up with a full prohibition on D&E procedures. The Center for Reproductive Rights calls this type of law a “method ban”; such bans technically prohibit just one type of abortion procedure, but in effect, they often significantly restrict abortion access.
Reproductive rights advocates argue that it’s essential to protect women’s right to choose at that stage. Very few people actually seek to terminate their pregnancies then: Per the Center for Disease Control and Prevention, 91.6 percent of abortions occur before 16 weeks of pregnancy and only 1.3 percent occur after 21 weeks. But as Elite Daily points out, there are countless reasons why some women do get abortions after 20 weeks. Oftentimes, lethal abnormalities in the fetus aren’t discovered until then, for example. A 2013 study from Guttmacher found that women who get abortions at this stage are more likely to be young or have “limited financial resources.”
Some anti-abortion advocates falsely argue that D&E should be banned because it hurts the fetus. Actually, as abortion researcher Dr. Daniel Grossman told NBC earlier this year, it’s not clear whether fetuses can feel pain until birth. And if they can, it definitely isn’t until 26-28 weeks into the pregnancy. That’s when nerve fibers develop that hook up the cerebral cortex to pain receptors.
Alabama’s attorney general office has asked for a month to file its petition to the Supreme Court. Of course, the court might not necessarily agree to review the Alabama case. At least four justices must vote in favor of doing so for the case to be taken up, according to ThoughtCo. But if the court does review the D&E ban and decides to allow it, women in Alabama seeking abortions after 20 weeks will have severely restricted options. That would also set the stage for similar outcomes in ongoing D&E cases around the country. Reproductive rights advocates have warned that Roe v. Wade won’t necessarily be overturned outright but that the court may chip away at it just like this.