Alabama AG about to appeal decision overturning ban on dismemberment abortions to the Supreme Court

By Dave Andrusko

In late August NRL News Today  reported on the unfortunate decision by a three judge panel of the 11th Circuit Court of Appeals to uphold a lower court verdict striking Alabama’s Unborn Child Protection from Dismemberment Abortion Act. We also wrote at length about Judge Joel F. Dubina’s very thoughtful dissent.

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.

At the time. 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.”

Marshall added, “Our legal team is carefully considering whether we will petition the Supreme Court for review of this case.”

On Tuesday the AG’s office said it would file a motion with the Supreme Court, asking for an additional 30 days to file its petition. “The constitutionality of a state ban on dismemberment abortion is an important question of national significance,” they wrote in their motion.

Nine states have passed bans on dismemberment abortions. 1. Kansas (2015) 2. Oklahoma (2015) 3. West Virginia (2016) 4. Mississippi (2016) 5. Alabama (2016) 6. Louisiana (2016) 7. Arkansas (2017) 8. Texas (2017) 9. Kentucky (2018).


The West Alabama Women’s Center in Tuscaloosa and the Alabama Women’s Center in Huntsville appealed the law, passed in 2016, to the very favorably disposed U.S. District Judge Myron Thompson.

In October 2016, 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.”

11th Circuit Court of Appeals decision

Try 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 (as noted above) 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.