Alabama law on ‘dismemberment abortion’ unconstitutional, appeals court rules


August 23, 2018

By Carrie Brown McWhorter

The Alabama Baptist

The U.S. 11th Circuit Court of Appeals on Aug. 22 upheld a lower court’s ruling that Alabama’s law prohibiting “dismemberment abortion” is unconstitutional.

In response to the appeals court ruling, Alabama Gov. Kay Ivey released a statement saying she “was supportive of the bill when it passed through the Legislature in 2016, and I signed it as president of the Senate. I am disappointed in the court’s ruling today; however, we should not let this discourage our steadfast commitment to protect the lives of the unborn.”

In a separate statement, Alabama Attorney General Steve Marshall said he is “disappointed that the 11th Circuit sided with the lower court in this case, but it is encouraging that the court recognized the State’s important and legitimate interests in ending barbaric abortion procedures — in this case, procedures that literally tear apart babies living inside their mothers’ wombs.”

Dismemberment abortions are performed through a process called dilation and evacuation (D&E). They are typically performed during the second-trimester of pregnancy between 15 and 18 weeks.

In a dissenting opinion to the U.S. Supreme Court’s 2000 Stenberg v. Carhart decision, Justice Anthony Kennedy wrote that in dismemberment abortions, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.” Kennedy added in the Court’s 2007 opinion, Gonzales v. Carhart, which upheld the ban on partial-birth abortion, that dismemberment abortions are “laden with the power to devalue human life.”

As of April 2018, nine states, including Alabama, had passed laws banning dismemberment abortions.

The Alabama Unborn Child Protection from Dismemberment Act was signed into law by former Alabama Gov. Robert Bentley in May 2016 and was set to go into effect Aug. 1, 2016. U.S. District Judge Myron Thompson blocked the law before it went into effect after two abortion clinics, the West Alabama Women’s Center in Tuscaloosa and the Alabama Women’s Center in Huntsville, filed a lawsuit against the state.

In October 2017, Thompson ruled the law unconstitutional and blocked the state from enforcing it on the grounds the law would “clearly impose an impermissible burden on a woman’s ability to choose an abortion.” The state appealed to the 11th Circuit Court of Appeals, who upheld Thompson’s ruling.

In its ruling, the appeals court noted, “In our judicial system, 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.”

Senior U.S. Circuit Judge Joel Dubina wrote in a special concurring statement in the ruling that he agrees with other judges and justices, including Supreme Court Justice Clarence Thomas that “the (Supreme) Court’s abortion jurisprudence, including … Roe v. Wade … has 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 all of the Supreme Court’s precedents, whether I agree with them or not,” Dubina wrote.

In his statement Marshall said he appreciates Dubina’s statement and will consider carefully whether to petition the U.S. Supreme Court for review of the most recent ruling.

Ivey in her statement seemed to support an appeal to the high court, adding, “This ruling clearly demonstrates why we need conservative justices on the Supreme Court, and I look forward to the confirmation of Brett Kavanaugh.”

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