A U.S. federal appeals court on Wednesday upheld a permanent injunction blocking Alabama from banning the most common method of second-trimester abortion.
But two judges from the 11th U.S. Circuit Court of Appeals in Atlanta used the 3-0 decision to cast doubt on the Supreme Court's abortion jurisprudence, including that terminating a pregnancy is a constitutional right.
Abortion is a central issue in the U.S. Senate confirmation process for President Donald Trump’s Supreme Court nominee Brett Kavanaugh, with some states passing restrictive abortion laws they hope might win favor from a conservative Supreme Court.
Alabama was trying to enforce a 2016 law criminalizing the dilation and evacuation (D&E) procedure, which the state called "dismemberment abortions."
That law was challenged by the West Alabama Women’s Center and Alabama Women’s Center, the state’s only abortion clinics performing the procedure. The American Civil Liberties Union represented them.
Last October, U.S. District Judge Myron Thompson blocked enforcement, saying the law would effectively ban abortions in Alabama after 15 weeks.
In Wednesday’s decision, the first by a federal appeals court on the issue, Chief Judge Ed Carnes said the law imposed an “undue burden” on the right to end the pregnancy before the fetus is viable.
Carnes found Alabama’s alternatives to the procedure unsafe, ineffective or unavailable, and said an exception to prevent serious health risks to women did not save the law.
But Carnes, an appointee of President George H.W. Bush, opened his opinion by noting criticism of Supreme Court abortion jurisprudence from Justice Clarence Thomas, late Justice Antonin Scalia and retired Justice Sandra Day O’Connor.
Thomas and Scalia opposed Roe v. Wade, the 1973 decision recognizing a constitutional right to abortion. O’Connor criticized Roe despite being the main architect of the “undue burden” standard.
“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,” Carnes wrote. “If so, what we must apply here is the aberration.”
Circuit Judge Joel Dubina, another Bush appointee, wrote separately to agree with Thomas and Scalia that the abortion right “has no basis in the Constitution.”
U.S. District Judge Leslie Abrams, an appointee of President Barack Obama, also sat on the panel. She agreed only with the result.
Alabama Attorney General Steve Marshall said his office may appeal to the Supreme Court: "It is encouraging that the court recognized the state’s important and legitimate interests in ending barbaric abortion procedures,” he said.
The ACLU said federal judges have blocked similar D&E bans in five other states.
Wednesday’s decision means “women’s health, not politics, will guide important medical decisions about pregnancy,” ACLU lawyer Andrew Beck said.
The case is West Alabama Women’s Center et al v. Miller et al, 11th U.S. Circuit Court of Appeals, No. 17-15208.