An injunction blocking the enforcement of an Alabama law that would have banned a second-trimester abortion procedure was upheld by a federal appeals court on Wednesday.
The 2016 law in question would have criminalized dilation and evacuation abortions (D&Es), dubbed “dismemberment abortions” by the state Alabama, which are the most common type of abortion performed in the second trimester.
Dilation and evacuation abortions are only used by two abortion clinics in the state, West Alabama Women’s Center and Alabama Women’s Center, which challenged the law with representation from the American Civil Liberties Union.
In a 3-0 decision Aug. 22, the judges of the US Court of Appeals for the 11th Circuit found the law to be unconstitutional. The law was similarly blocked last October by U.S. District Judge Myron Thompson, who said it was unconstitutional because it would have effectively banned abortion in the state after the first trimester.
Alabama Attorney General Steve Marshall told reporters that while he was disappointed with the court’s decision, he was encouraged 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."
In his decision, Chief Judge Ed Carnes wrote that “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,” he said.
Carnes wrote that the Alabama law posed an “undue burden” on women seeking second trimester abortions because the alternatives were not considered “safe, effective or available.”
“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,” Carnes wrote.
U.S. District Judge Joel Dubina wrote separately to concur with Carnes, adding that he agreed with Supreme Court Justice Clarence Thomas’ criticism of the Supreme Court’s “abortion jurisprudence”, which “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. “Therefore, I concur.”
U.S. District Judge Leslie Abrams wrote separately to note that she agreed with the court in its final decision only.
Marshall has said his office may appeal the case to the Supreme Court.
Alabama has had mixed results in passing recent pro-life legislation. In August 2017, a federal judge struck down an Alabama law requiring more scrutiny for minors who seek an abortion without parental consent.
The state is still considered to be one of the most restrictive in terms of abortion law. Alabama law requires that women be given counseling and an ultrasound prior to having an abortion, though it is optional for the woman to view the ultrasound image. It also has restrictions on the health insurance coverage of elective abortions that are not performed for reasons of life endangerment, rape or incest.