ATLANTA (CN) — The 11th Circuit on Wednesday affirmed that Alabama cannot enforce its law that prohibits and criminalize second-trimester abortions unless the fetus is dead before it is extracted.
The begrudging ruling from the three-judge panel, with two reluctant concurrences, cites U.S. Supreme Court precedence, but makes it clear that if the 11th Circuit judges had their druthers they would have reversed the district court.
“In our judicial system, there is only one Supreme Court, and we are not it,” Chief Judge Ed Carnes wrote for the circuit. “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.”
Joining Carnes on the panel were Senior 11th Circuit Judge Joel Fredrick Dubina and U.S. District Judge Leslie Abrams, from Georgia, sitting by designation.
In a brief concurrence, Dubina cited Justice Clarence Thomas’s concurring opinion in Gonzales v. Carhart, “that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.” [Citations omitted.]
Carnes too wrote in the first sentence of his ruling “that there is constitutional law and then there is the aberration of constitutional law relating to abortion.” But Carnes said he was bound to follow Supreme Court precedent.
The panel found that Alabama’s alternatives to dilation and evacuation – the most common procedure used in the second trimester – did not ensure safe and available abortions.
Dilation and evacuation is described as a “superior method” of abortion by the National Academies of Sciences, Engineering, and Medicine in part because of its safety to women.
According to Carnes, Alabama called the procedure dismemberment abortion.
“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,” Carnes wrote. “This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating.”
In 2016, Alabama passed a law requiring abortion providers to cut the fetus’ umbilical cord or inject it with digoxin or potassium chloride to ensure its “demise” before evacuation. Abortion providers who did not do so would face up to two years in prison and a $10,000 fine.
The panel wrote that 93 percent of abortions in Alabama do not use dilation and evacuation, because they are performed before the 15th week of pregnancy when other procedures can be used.
Only two abortion clinics in Alabama perform the procedure, one in Tuscaloosa one in Huntsville. In 2014, the two clinics performed 500 dilation and evacuation abortions and most of their patents had low incomes.
After Alabama passed the law, the clinics filed suit, arguing the law was unconstitutional.
The 11th Circuit found that Alabama’s law requiring fetal demise created additional risks for women seeking abortions.
An abortion provider injecting potassium chloride in a fetus’ dime-sized heart could miss, inject the woman instead and send her into cardiac arrest, the panel found.
In the case of transacting the umbilical cord, doctors would need to wait about 10 minutes for the fetus’ heart to stop beating before extracting it.
“While the abortion practitioner waits for the unborn child’s heart to stop, the patient may undergo uterine contractions and hemorrhage,” Carnes wrote. “The risks are worse in the outpatient setting because clinics lack access to blood banks.”
The state’s procedures required doctors to undergo training and created technical challenges, the panel found.
ACLU attorney Andrew Beck said in a statement Wednesday: “The upshot of this ruling is that women’s health, not politics, will guide important medical decisions about pregnancy.
Laws like this are part of a larger strategy by anti-abortion politicians to push abortion out of reach entirely. Today, the court affirmed a woman’s right to get the care she needs.”
Matt Clark, however, an attorney with the Foundation of Moral Law, said the 11th Circuit should have ignored Supreme Court precedent in cases such as Roe v. Wade because it violates “the God-given right to life that the Constitution presupposes.”
The Foundation of Moral Law was founded by former Alabama Supreme Court Justice Roy Moore, who was removed from office twice, in 2016 for defying the Supreme Court ruling on same-sex marriage.
Judge Abrams closed out the panel’s ruling with a six-word concurrence: “I concur in the judgment only.”
Alabama Attorney General Steve Marshall said he is considering an appeal to the U.S. Supreme Court. He too said in a statement, citing Dubina’s concurrence, “that the United States Supreme Court’s abortion jurisprudence ‘has no basis in the Constitution.’”
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