U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

Court 'Begrudgingly' Strikes Alabama's Ban on Second-Trimester Abortions

If the U.S. Eleventh Circuit Court of Appeals had its way, abortion would be illegal.

At least that's what three judges of the appeals court seemed to say in West Alabama Women's Center v. Williamson. They affirmed a decision that gutted Alabama's ban on second-trimester abortions, but it wasn't easy for them.

They called the banned procedure "dismemberment abortion" because "it involves tearing apart and extracting piece-by-piece" the unborn fetus. Judge Joel Frederick Dubina, in a concurring opinion, said what the judges were really thinking: "Roe v. Wade has no basis in the Constitution." 

No Basis

Of course, the U.S. Supreme Court dictates the meaning of the Constitution. That's about the only reason the Eleventh Circuit followed precedent, however, as the judges suggested they were stuck between a rock and hard place.

"In our judicial system, there is only one Supreme Court, and we are not it," Chief Judge Ed Carnes wrote. "The primary factfinder is the district court, and we are not it."

The appeals panel unanimously affirmed the trial court decision. Carnes said that Alabama's abortion ban -- criminalizing any second-trimester abortion unless a fetus is dead -- violated the law.

But it was a "begrudging ruling" for the appellate judges, the Courthouse News reported. They said "that there is constitutional law and then there is the aberration of constitutional law relating to abortion."

Dilation and Evacuation

In 2016, Alabama banned dilation and evacuation -- a common procedure used in second-trimester abortions. Legislators called it "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," the Eleventh Circuit said in its decision. "This is usually done during the 15 to 18 week stage of development, at which time the unborn child's heart is already beating."

Alabama's law required abortion providers to inject a lethal dose into the fetus or to cut its umbilical cord to ensure its death before evacuation. Abortion providers faced up to two years in prison and a $10,000 fine for violating the law.

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