Eric Segall, Georgia State University College of Law, Atlanta (Courtesy photo)

There has been intense “will he or won't he” speculation about whether U.S. Supreme Court nominee Brett Kavanaugh, if confirmed, will vote to overturn the high court's 1973 decision in Roe v. Wade, 410 U.S. 113, should he get the opportunity.

Given the charged atmosphere surrounding the issue, the Aug. 22 decision of the U.S. Court of Appeals for the Eleventh Circuit blasting Roe and its progeny as an “aberration” cooked up by a Supreme Court majority that “discovered” a woman's right to an abortion “lurking somewhere in the 'penumbras of the Bill of Rights''' is being interpreted as a particularly strident invitation to the justices to overturn Roe.

The appellate court upheld a lower court's injunction against an Alabama law banning some “dilation and extraction” abortions, but Chief Judge Ed Carnes and Judge Joel Dubina made clear that they were bound by high court precedent.

“As one of the 'inferior courts,' we follow its directions,” wrote Carnes in the majority opinion.

“There are certainly a fair amount of situations where a Court of Appeals judge might say, 'We don't agree with Supreme Court precedent, but we're bound by it,' said Eric Segall, a constitutional law professor at Georgia State University.

“But usually, they just say it in one or two sentences, then move on to the opinion,” he said. “Essentially, almost this entire opinion is just saying 'Roe v. Wade was wrongly decided.' That's very unusual.”

In a one-paragraph special concurrence, Dubina said he embraced the opinions of the late Justice Antonin Scalia and Justice Clarence Thomas, who had found no basis for the right to an abortion in the Constitution. But Dubina concluded that he was “bound by my oath to follow all of the Supreme Court's precedents, whether I agree with them or not.”

The third member of the panel, Judge Leslie Abrams of Georgia's Middle District, sitting by designation, wrote that she concurred in judgment only.

Carnes' often-graphic 38-page opinion in West Alabama Women's Center v. Williamson, No. 17-15208, included the district court's findings of fact and the appellate arguments surrounding the procedure, ultimately concluding that its enforcement would place an unconstitutional obstacle in the path of women seeking an abortion.

“There is only one Supreme Court, and we are not it,” wrote Carnes, upholding the injunction issued by Alabama Middle District Judge Myron Thompson.

In response, senior staff attorney Andrew Beck of the American Civil Liberties Union's Reproductive Freedom Project said the “upshot of this ruling is that women's health, not politics, will guide important medical decisions about pregnancy.”

Decrying the law as “part of a larger strategy by anti-abortion politicians to push abortion out of reach entirely,” Beck said the ruling “affirmed a woman's right to get the care she needs.”

Alabama Attorney General Steve Marshall, while “disappointed” by the ruling, was obviously heartened by Carnes' and Dubina's commentary.

In a statement, Marshall said it was “encouraging that the court recognized the state's important and legitimate interests in ending barbaric abortion procedures.” He said he is considering whether to petition the Supreme Court for review.

Segall—who authored “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges”—said the changing makeup of the Supreme Court and the likely addition of Kavenaugh probably had little to do with the appellate ruling's tenor.

Even so, he said, the opinion is “of course” an invitation for the Supreme Court to overturn Roe and its progeny.   

While more expansive that most judicial rulings opposing legal precedent, he said the West Alabama Women's Center opinion continues an approximately decade-long trend of lower court opinions criticizing Roe and subsequent rulings.   

“You never know what's in the minds of the judges, but it's become very common over the last 10 years for Court of Appeals judges to express opinions disagreeing with court precedent, and opposition to Roe and [other rulings upholding abortion rights] is becoming very popular among conservative appellate judges,” he said.

Segall noted that the Alabama ruling, while pointed, hewed to established high court precedent, and said the Supreme Court's striking down of the Fifth Circuit in an abortion case out of Texas in 2016—a decision cited repeatedly in the Eleventh Circuit's ruling—had left its impression on the appellate courts.

In 2013, Texas passed a series of restrictions including a requirement that doctors working at abortion clinics have admitting privileges at a hospital within 100 miles of the facility and imposing stringent requirements on the construction of the centers themselves.

A district court judge found the requirements violated Texas women's 14th Amendment rights by unduly restricting their liberty to obtain an abortion and enjoined the law's enforcement.

The Fifth Circuit reversed the district court, ruling among other things that the law was “rationally related” to the state's interest in protecting women's health and that there was no evidence that a “large fraction” of women seeking abortion would be impacted by the law.

In 2016's Whole Woman's Health v. Hellerstedt, the Supreme Court overturned the appellate ruling, with Justice Stephen Breyer writing for the five-justice majority that the law created an “undue burden on abortion access” in violation of the Constitution.

“What happened was that the Fifth Circuit in the Whole Women's Health case wrote an opinion that would have effectively overturned Roe, and they were slapped down by Justice Breyer's decision, which [now-retired Judge Anthony] Kennedy joined,” Segall said.

“There's certainly nothing inherently wrong with saying, 'We're bound by Supreme court precedent' and then issuing an opinion that disagrees with that precedent,” he said.

“I do think that, on the one hand, the Eleventh Circuit's language was unusually strong, given the existing state of the law,” he said. “On the other hand, it speaks for them and the rule of law that—unlike like the Fifth Circuit—they found themselves bound by that precedent.”

“What happened in the Eleventh Circuit never happens in the Supreme Court,” added Segall.

“I've been saying that Supreme Court justices are not really judges, they're politicians, and they're not really bound by anything,” said Segall. “The only thing that limits what the Supreme Court does is their own perception of what the American people will say.”

Veteran constitutional law attorney Emmet Bondurant said that, while Carnes and Dubina's comments may have been “unusual,” they are “honest expressions of opinion with controlling law on a controversial issue, that is shared by a minority of  Supreme Court Justices, and as such, [are] not improper—especially since they faithfully applied the controlling law despite their personal views to the contrary.”

“There are a number of Supreme Court decisions that I think are wrongly decided and federal statutes that have been upheld by the Supreme Court that I believe are unconstitutional,” said the Bondurant, Mixson & Elmore partner.

“If I were a federal district or circuit judge, and were confronted with a case in which I was forced to apply what I strongly believed is bad law that produces an unfair and unjust result, I would not hesitate to, in a proper case, point out the flaws in the existing law and urge that it be reconsidered,” he said.