Editor’s Note: Be aware this story quotes the judges’ graphic description of an abortion procedure:
The 11th Circuit Court of Appeals on Wednesday struck down an Alabama law banning the gruesome, second-trimester abortion procedure in which limbs are removed from a baby’s body in the womb.
But Chief Judge Ed Carnes lamented in his opinion that he was bound by U.S. Supreme Court precedent to rule against the state, writing that “dismemberment” is the best description of the procedure, which clinically is known as dilation and extraction.
“In our judicial system, there is only one Supreme Court, and we are not it,” he wrote, calling the high courts history of abortion rulings an “aberration” of constitutional law.
Abortionists at the West Alabama Women’s Center in Tuscaloosa, Alabama, had fought to reinstate the procedure, and a lower court ruled in its favor.
But Judge Joel Dubina wrote separately to express his agreement with Supreme Court Justices Clarence Thomas and Antonin Scalia in Gonzales v. Carhart in which Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence,” including in Planned Parenthood v. Casey and Roe v. Wade, “has no basis in the Constitution.”
“The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not,” Dubina wrote.
The opinion had no use for the politically correct language of “choice” and “women’s rights.”
“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the state less clinically calls it. 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,” he 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,” he said.
The 11th Circuit ruling said the Supreme Court doesn’t allow the state of Alabama to forbid “this method of abortion entirely.”
So the state moved to forbid “dismembering a living unborn child.”
The panel wrote: “Under the act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. … Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not.”
The opinion snarked that “a majority” of the Supreme Court “discovered that [abortion] right lurking somewhere in the ‘penumbras of the Bill of Rights’ as illuminated by the ‘concept of ordered liberty.'”
Essentially the Supreme Court said a state would not place a substantial obstacle in the path of woman wanting to destroy her unborn child.
The ruling repeatedly condemned the violence inflicted by an abortionist grasping “a portion (such as a foot or hand) of a developed and living fetus and drag[ging] the grasped portion out.”
“In this type of abortion theunborn child dies the way anyone else would if dismembererd alive. ‘It bleeds to death as it is torn limb from limb,'” the ruling said.
“It can, however, ‘survive for a time while its limbs are being torn off.'”
Said the judges, “It is no wonder that Justice Ginsburg has described this method of abortion as ‘gruesome’ and ‘brutal.'”
And while the state has legitimate interests in preventing the procedures, the Supreme Court has ruled it cannot.
“In our judicial system, there is only one Supreme Court, and we are not it. … We follow its decisions.”
Liberty Counsel, which submitted a friend-of-the-court brief in the case, had pointed the court to evidence an unborn child feels pain as early as eight weeks.
Chief Judge Carnes wrote: “Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.”
The court also included in a footnote that it would not call abortionists “doctors.” Nor would it always refer to them as “abortionists.” It chose the word “practitioner.”
