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THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
SCOTT HARRIS, IN HIS OFFICIAL CAPACITY AS
STATE HEALTH OFFICER, ET AL. v. WEST
ALABAMA WOMEN’S CENTER, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 18–837. Decided June 28, 2019
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, concurring.
In 2016, Alabama adopted a law prohibiting “dismem-
berment abortion[s].” Ala. Code §26–23G–3(a). The law
does not prohibit women from obtaining an abortion, but it
does prevent abortion providers from purposefully “dis-
member[ing] a living unborn child and extract[ing] him or
her one piece at a time from the uterus through use of
clamps, grasping forceps, tongs, scissors, or similar in-
struments” that “slice, crush, or grasp . . . a portion of the
unborn child’s body to cut or rip it off.” §26–23G–2(3). As
the Court of Appeals explained, this method of abortion is
particularly gruesome:
“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,”
2 HARRIS v. WEST ALABAMA WOMEN’S CENTER
THOMAS, J., concurring
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 bur-
den” standard adopted by this Court, a restriction on
abortion—even one limited to prohibiting gruesome meth-
ods—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 viabil-
ity.’ ” 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) (plu-
rality opinion); emphasis deleted). Here, abortion provid-
ers 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 quintessen-
tially 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. Car-
hart, 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
Cite as: 588 U. S. ____ (2019) 3
THOMAS, J., concurring
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., concur-
ring). 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.