The 11th Circuit Court of Appeals just affirmed a lower court’s ruling that an Alabama law banning dismemberment abortions is unconstitutional. The legal rationale, laid down in higher-court precedent, was that the ban creates “additional risks” for women seeking to abort.
However, although the three-judge panel ruled unanimously against the Alabama Unborn Child Protection from Dismemberment Act, two of the three judges made it clear just how unhappy they were to be following Supreme Court precedent.
“There is constitutional law and then there is the aberration of constitutional law relating to abortion,” Chief Judge Ed Carnes wrote in this week’s ruling. “What we must apply here is the aberration.”
“In our judicial system, there is only one Supreme Court, and we are not it,” he added. “The primary factfinder is the district 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.”
Carnes’ great displeasure in ruling against the Alabama law is evident throughout the ruling, which goes to great lengths to detail the abortive procedure that Alabama state politicians sought to outlaw.
He writes, “This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. 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. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating.”
The ruling includes similarly graphic language, including descriptions of a patient losing blood “while undergoing contractions and placental separation” and “bleeding on the table [while] the practitioner must decide whether to wait for her to bleed even more in order to trigger the health exception, or to start the dismemberment of the unborn child and risk having a jury second guess his judgment that the risk to the woman’s health justified doing so.”
Then there are the ruling’s footnotes:
Carnes was joined in his overall opinion by Circuit Judge Joel Dubina, who wrote in the ruling, “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. Therefore, I concur.”
The third judge on the panel, U.S. District Judge Leslie Abrams, wrote simply: “I concur in the judgment only.”
