Reluctant 11th Circuit Upholds Injunction Against Alabama Abortion Law
Chief Judge Ed Carnes wrote the panel must apply an “aberration” of constitutional law in applying Supreme Court precedent.
August 22, 2018 at 05:53 PM
4 minute read
The U.S. Court of Appeals for the Eleventh Circuit upheld a lower court's injunction against Alabama's law prohibiting some “dilation and extraction” abortions, but two of the judges made clear they did so only because U.S. Supreme Court precedent mandates the ruling.
The first sentence in Chief Judge Ed Carnes' majority opinion published Wednesday is blunt: “Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.”
A short concurrence penned by Judge Joel Dubina notes that, while the opinion correctly analyzes the law, he agrees with U.S. Supreme Court Justices Clarence Thomas and the late Antonin Scalia that the key laws permitting legal abortion, including the seminal 1973 ruling in Roe v. Wade and 1992's Planned Parenthood v. Casey, have no basis in the Constitution.
“The problem I have, as noted in the Chief judge's opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow the all of the Supreme Court's precedents, whether I agree with them or not,” Dubina wrote.
The third member of the panel, Judge Leslie Abrams of Georgia's Middle District, sitting by designation, wrote that she concurred in judgment only. Abrams, who was nominated to the bench by President Barack Obama, is the sister of Georgia gubernatorial candidate Stacey Abrams.
The law at issue was passed by Alabama in 2016 and involves what it termed “dismemberment abortion.”
“That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child,” Carnes wrote. “This is usually done during the 15th to 18th week stage of development, at which time the unborn child's heart is already beating.”
In an effort to “make the procedure more humane,” he wrote, the Alabama law required that the fetus be killed before the extraction.
“Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not,” Carnes wrote.
Violations of the law could subject an abortion provider to a prison term of up to two years and $10,000 in fines.
The West Alabama Women's Center, Alabama Women's Center and their medical directors challenged the law as unconstitutional and sought an injunction.
Among their arguments were that the methods Alabama proposed to kill a fetus prior to extraction, including cutting its umbilical cord, or injecting a fatal doses of potassium chloride or the digoxin into the fetus, were both unreliable and dangerous, and that no safe and effective ways for complying with law existed.
Judge Myron Thompson of Alabama's Middle District agreed, and in 2016 he issued a preliminary injunction, which Alabama appealed.
After weighing both sides' arguments, Carnes wrote that all of the findings “support the conclusion that the law would 'place a substantial obstacle'”in the path of women seeking abortions before the fetus attains viability, which Supreme Court precedent says are permitted.
“In our judicial system,” Carnes wrote, “there is only one Supreme Court, and we are not it.”
“Our role is to apply the law the Supreme Court has laid down to the facts the district court found. The result is that we affirm the judgment of the district court.”
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