After Abortion Advocates Score Victory in Alabama, Foes Look to Supreme Court

by | August 23, 2018

By Ivana Hrynkiw

A federal appeals court agreed Wednesday with a lower court's ruling that Alabama can't limit a woman's access to second-trimester abortions.

The 11th Circuit Court of Appeals issued a ruling that blocks a state law -- the Alabama Unborn Child Protection from Dismemberment Act -- that bans a certain abortion procedure. The ban was struck down by federal judge in Montgomery last year, but the state appealed that ruling.

The appeals court's order stated, "In our judicial system, there is only one Supreme Court, and we are not it. As one of the 'inferior Courts,' we follow its decisions... Our role is to apply the law the Supreme Court has laid down to the facts the district court found."

Alabama Attorney General Steve Marshall issued a statement Wednesday afternoon disagreeing with the ruling.

"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 stated.

"I also appreciate Judge Dubina's separate opinion that the United States Supreme Court's abortion jurisprudence 'has no basis in the Constitution,' Marshall stated. "Our legal team is carefully considering whether we will petition the Supreme Court for review of this case. We expect to reach a decision soon."

Governor Kay Ivey also reacted to the decision.

"I was supportive of the bill when it passed through the Legislature in 2016, and I signed it as president of the Senate. I am disappointed in the court's ruling today; however, we should not let this discourage our steadfast commitment to protect the lives of the unborn, even if that means taking this case to the U.S. Supreme Court. This ruling clearly demonstrates why we need conservative justices on the Supreme Court, and I look forward to the confirmation of Brett Kavanaugh."

The Foundation for Moral Law condemned the appeals court decision.

Kayla Moore, the Foundation's President, said in a statement that "Because the Eleventh Circuit had an amicus brief in front of it explaining why the court's duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children's right to live."

"The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court," Moore statement. "The victims of the Eleventh Circuit's passivity are Alabama's unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating."

Last October, U.S. District Judge Myron Thompson blocked the Alabama law that would criminalize the most common method of second-trimester abortion in the state, effectively ending the right to an abortion at 15 weeks. The method is called dilation and evacuation-- but is referred to in Alabama law as dismemberment abortion-- and is typically performed between 15 and 18 weeks of pregnancy.

The Legislature passed the ban in 2016, and it was set to take effect last year. After the ban was passed, the West Alabama Women's Center in Tuscaloosa and the Alabama Women's Center in Huntsville filed a lawsuit against the state. The district court ruled in their favor, but the state appealed to the 11th Circuit.

The appeals court wrote in its decision Wednesday, "At that stage of pregnancy, it is settled under existing Supreme Court decisions that the State of Alabama cannot forbid this method of abortion entirely." The ruling continued, "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.

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."

The order also notes that almost 93% of abortions performed in Alabama happen before 15 weeks, and a different method is used.

In Alabama, the appeals court said, the majority of women who have abortions at the West Alabama Women's Center and the Alabama Women's Center live in poverty and cannot afford the other methods that "prolong the abortion" suggested by the state.

(c)2018 Alabama Media Group, Birmingham