Further reflections on 11th Circuit’s decision to reject Alabama’s Dismemberment Abortion Ban

By Dave Andrusko

On Wednesday, we reported on the unfortunate decision by a three judge panel of the 11th Circuit Court of Appeals to uphold a lower court verdict striking the Alabama’s Unborn Child Protection from Dismemberment Abortion Act.

The law would ban a hideous 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. It is so awful that abortionists strain to come up with euphemisms to hide its utter depravity,

In discussing the decision Alabama Attorney General Steve Marshall said in a statement, “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.”

And then this…

“I also appreciate Judge Dubina’s separate opinion that the United States Supreme Court’s abortion jurisprudence ‘has no basis in the Constitution.’”

Trying reading the 40 page decision, which begins with Judge Ed Carnes’ expressing doubts about abortion jurisprudence and ends with Judge Joel Dubina’s lament and you can readily see why the ACLU used the decision to write a feel-bad story under the headline “Alabama Abortion Decision Raises Alarms Ahead of Kavanaugh Hearings.”

Here’s what Judge Dubina wrote [internal citations omitted]

I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey] and Roe v. Wade, has no basis in the Constitution.”

But the appeals court panel wrote they were bound by previous Supreme Court decisions which they felt rendered the ban on dismemberment abortions unconstitutional. Supporters of the ban, including the governors and attorneys general of 22 states which filed amicus curiae brief to support Alabama’s ban on dismemberment abortions, vigorously disagree.

As does National Right to Life.

Andrew Beck, Senior Staff Attorney for the ACLU’s Reproductive Freedom Project wrote, “But this positive decision came with an ominous twist. One of the judges wrote separately to note ‘on the record’ that, while Supreme Court precedent required him to block this harmful restriction, if he had a seat on the Supreme Court, he would have upheld the statute and voted to invalidate Roe v. Wade altogether.”

He worries that Judge Brett Kavanaugh , President Trump’s nominee to replace Justice Anthony Kennedy, will not share Justice Kennedy’s perspective that merely requiring abortion clinics to meet commonsense requirements to protect women’s health is an “undue burden.”

Surely most people of good will would agree that a position that extreme doesn’t have “a basis in the Constitution.”