If the newly reinforced conservative majority of the Supreme Court is eager to take on abortion, it won’t have to go far — a blocked Alabama law already is in the court system.
State officials in 2016 passed the Alabama Unborn Child Protection from Dismemberment Act, which banned a certain type of late-term abortion. A federal judge predictably stopped the law from taking effect, and the Atlanta-based 11th U.S. Circuit Court of Appeals in August upheld that decision.
But the majority opinion in that case goes out of its way to make clear that Supreme Court precedent ties the hands of lower court judges and practically begs the justices to revisit the issue.
Pro-life advocates hope the arrival of Justice Brett Kavanaugh gives the high court the majority it needs to overturn or severely limit the landmark Roe v. Wade decision, which guaranteed abortion as a protected right in 1973.
“I am prayerful that this will be the case that overturns Roe once and for all,” said state Rep. Mack Butler, a Republican who co-sponsored the law.
Some legal experts said they believe the chances are good the court would agree to hear the case if Alabama appeals the 11th Circuit decision.
“It would be a direct challenge to Roe v. Wade … I think there is a high likelihood that the court overturns Roe v. Wade,” said Mat Staver, founder of the Liberty Counsel.
Staver’s organization, which represents evangelical Christian interests, weighed in on the matter with a friend of the court brief supporting the state.
Other experts are skeptical, however, that the court would take such a bold step — particularly so soon after Kavanaugh took the bench.
Ryan Owens, director of the Tommy G. Thompson Center on Public Leadership at the University of Wisconsin-Madison, said “excessive panic [among liberals about abortion] … is, frankly, overblown.”
Owens, an expert on the Supreme Court, told LifeZette that he doubts Chief Justice John Roberts would go along with an effort to overturn such a high-profile precedent even if the other four conservative justices wanted to.
“Chief Justice Roberts is always very cautious about the court’s institutional legitimacy,” he said. “So he may not want to pull the trigger right away … I don’t see it as an issue that they’re going to unsettle in a major way.”
Roberts Court Has Overruled Precedents
Staver acknowledged that Roe v. Wade has been precedent for a fairly long time. But he told LifeZette that it is not necessary to reach back further than this year to find an instance in which the Supreme Court was willing to overturn a precedent nearly as old.
In Janus v. AFSCME, the high court in June overturned a precedent  that had stood since 1977 and found that public employee unions cannot force nonmembers to pay “agency fees” to cover the costs of negotiating labor contracts. Roberts was in the majority in that 5-4 ruling.
“That gives me hope Roberts also would be willing to do the same on abortion,” Staver said.
It seems to be a desire shared by at least two of the judges on the federal appeals court that struck down the Alabama abortion law. The 38-page opinion drips with contempt for Roe v. Wade and characterizes the procedure targeted by the law in barbaric terms.
The law bans a method of abortion known as dilation and evacuation, usually performed between the 15th and 18th week of pregnancy, which involves tearing apart the unborn child and then suctioning its body parts out of the uterus.
“There’s no constitutional provision that says abortion has to be performed a certain way.”
Chief Judge Ed Carnes, who wrote the opinion for the unanimous three-judge panel, noted that the state 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,” the opinion states.
Carnes affirmed the ruling of Senior U.S. District Judge Myron Thompson, who determined that alternative methods of abortion proposed by the state were not feasible and that the law therefore placed an “undue burden” on access to abortion, in violation of the Supreme Court’s 1992 precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey.
Carnes suggested that Supreme Court decisions springing from the Roe v. Wade case may be an “aberration of constitutional law.” But he made clear that only the Supreme Court could correct such an aberration.
“In our judicial system, there is only one Supreme Court, and we are not it,” he wrote. “As one of the ‘inferior courts,’ we follow its decisions.”
Alabama Attorney General Urged to Appeal
Senior U.S. Circuit Judge Joel Dubina, who also is the father of Rep. Martha Roby (R-Ala.), wrote a concurring opinion aligning himself with the views of Justice Clarence Thomas that the court’s “abortion jurisprudence … has no basis in the Constitution.”
But Dubina added that as an appellate court judge, he is bound to follow all of the Supreme Court’s precedents “whether I agree with them or not.”
The third judge on the panel, Leslie Joyce Abrams, made clear that she did not agree with the hostility toward Roe expressed by Carnes. Abrams, who was appointed by President Barack Obama, wrote a six-word concurrence: “I concur in the judgment only.”
To even have a chance to make it to the high court, Alabama Attorney General Steve Marshall first would have to decide to appeal the 11th Circuit ruling. He expressed disappointment with the decision in August, but his spokesman told LifeZette on Wednesday that the office had no comment on a possible appeal.
Butler, the Alabama state representative, told LifeZette that he believes the Supreme Court will uphold his law “without a shadow of a doubt, if they actually weigh the merits.” He said the procedure he tried to outlaw is monstrous — and kills unborn children with beating hearts and the ability to feel pain.
State Sen. Phil Williams, who sponsored the bill in Alabama’s upper chamber, said he found it “unconscionable” that the appeals court struck down the law and added that he hopes Marshall appeals it.
But Williams told LifeZette that he cannot say for sure that the Supreme Court would overturn Roe v. Wade even if it took the case and sided with the state. He said the justices could uphold the law without overturning Roe.
“There’s no constitutional provision that says abortion has to be performed a certain way,” he said.