The nation’s lower courts are bound by Supreme Court precedent on abortion cases, but that doesn’t mean they can’t speak out and criticize it.
The U.S. Eleventh Circuit Court of Appeals issued a 3-0 ruling Wednesday agreeing that an Alabama law that banned a common abortion procedure was unconstitutional.
The Alabama Unborn Child Protection from Dismemberment Act had prohibited abortion doctors from using Dilation and Evacuation, which involves killing an unborn baby by tearing it apart. This means the doctor will extract, for example, a head, two arms, a torso and two legs – all of the parts until the uterus is empty. Under Supreme Court precedent, the procedure remains legal.
“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,” wrote Chief Judge Ed Carnes, who was nominated by President George H.W. Bush.
His opinion was joined by Judge Joel Fredrick Dubina, who also was nominated by George H.W. Bush. Judge Leslie J. Abrams, nominated by President Obama, wrote a note saying she was agreeing in the “judgment only” – meaning she didn’t affirm Carnes’ criticism of Roe.
Dubina, though, wrote a concurring opinion that went even further than Carnes, saying he agrees with Supreme Court Justice Clarence Thomas that the court’s abortion rulings, including Roe vs. Wade and Planned Parenthood vs. Casey, have “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.
Mat Staver, founder and chairman of the religious liberty group Liberty Counsel, said only seven countries in the world allow dismemberment abortions.
“This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions,” he said. “As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, The Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.