Appeals court strikes Alabama ban on dismemberment abortion of living unborn babies

State AG expresses his disappointment, office considers appeal

By Dave Andrusko

Alabama’s attorney general said today that “Our legal team is carefully considering whether we will petition the Supreme Court for review of this case,” referring to the decision by the 11th Circuit Court of Appeals to uphold a lower court verdict striking the state’s Unborn Child Protection from Dismemberment Abortion Act. “We expect to reach a decision soon,” Steve Marshall said in a statement.

As reported by NRL News Today, the law bans a hideous dismemberment abortion technique in which a living, growing human being is torn apart and pulverized. Using steel tools, dismemberment abortions rip heads and legs off of tiny torsos as the defenseless child bleeds to death.

Alabama is one of nine states to ban dismemberment abortions along with Kansas, Oklahoma, West Virginia, Mississippi, Louisiana, Arkansas, Texas, and Kentucky.

“I am 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,” Marshall went on to add. “I also appreciate Judge Dubina’s separate opinion that the United States Supreme Court’s abortion jurisprudence ‘has no basis in the Constitution.’”

In the first paragraph of its 40 page decision, the appeals court panel immediately acknowledges what pro-lifers call the “abortion distortion” factor—where ordinary jurisprudence takes a back seat when abortion is involved–and the incredible brutality of dismemberment abortion:

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.

Dismemberment abortion, the court observed

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 State has an actual and substantial interest in lessening, as much as it can, the gruesomeness and brutality of dismemberment abortions. That interest is so obvious that the plaintiffs do not contest it.

However, according to the panel

But the fact that the Act furthers legitimate state interests does not end the constitutional inquiry. The legitimacy of the interest is necessary but not sufficient for a pre-viability abortion restriction to pass the undue burden test.

As we previously reported, the West Alabama Women’s Center in Tuscaloosa and the Alabama Women’s Center in Huntsville appealed the law to the very favorably disposed U.S. District Judge Myron Thompson.

Last October Judge Thompson blocked the Alabama law which the House of Representatives passed in 2016 on a vote of 74-26, and the state Senate by 30-2. (The Unborn Child Protection from Dismemberment was to have taken effect in 2017.)

In March 2017 the governors and attorneys general of 22 states joined together to file an amicus curiae (friend of the court) brief to support Alabama’s ban on dismemberment abortions. The brief was organized by the Office of Louisiana’s Attorney General Jeff Landry.

This filing reminded that as noted in the U.S. Supreme Court’s 2007 Gonzales ruling upholding the federal ban on partial-birth abortions, states have the right to pass abortion restrictions that (1) protect and foster respect for the unborn, and (2) regulate the medical profession as to judgment and ethics.

Moreover, as the amicus notes

“the abortion method involved in this case is an exceptionally gruesome one, potentially even more so than the ‘partial-birth’ procedure at issue in Gonzales. …

“By limiting the use of particularly ‘brutal’ abortion procedures, States further respect for life, both in society at large and in the medical profession in particular. They also protect women from the deep grief many of them are likely to feel if and when they later discover exactly how their unborn children were killed.”