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Court strikes down Alabama’s ‘fetal demise’ abortion law 

The federal appeals court in Atlanta has struck down an Alabama law that would have allowed criminal prosecutions of doctors who performed a commonly used procedure for second-trimester abortions.

The so-called “fetal demise” law would have required doctors to perform additional procedures before conducting a dilation and evacuation abortion, in which the fetus is removed in pieces with forceps and suction.

Chief Judge Ed Carnes, writing for a unanimous three-judge panel, cited evidence that found the additional procedures required by the Alabama law can put a mother’s health at great risk. Moreover, they are largely untested and difficult to perform, he noted.

Such problems place unconstitutional obstacles in the path of women seeking abortions before the fetus attains viability, Carnes wrote.


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The ruling was remarkable in that one judge in the majority, Senior Judge Joel Dubina, wrote separately to say flatly he believes that Roe v. Wade, the 1973 case legalizing abortion, has no basis in the Constitution. And Carnes, who wrote the majority opinion, appeared to condemn dilation and evacuation abortions.

“(T)he method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child,” Carnes 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.”

Chief Judge Ed Carnes of the 11th U.S. Circuit Court of Appeals. (The Atlanta Journal-Constitution)

Dismemberment abortions exact emotional and psychological harm on some who participate in the procedure or those who are present during it, Carnes noted. “(And) the state has an actual and substantial interest in lessening, as much as it can, the gruesomeness and brutality of dismemberment abortions.”

Both Carnes and Dubina said they must follow precedents set by the nation’s highest court.

“In our judicial system, there is only one Supreme Court, and we are not it,” Carnes wrote. “As one of the ‘inferior courts,’ we follow its decisions.”

Said Dubina, “I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Judge Leslie Abrams, a visiting judge from Albany, also wrote separately, simply saying, “I concur in the judgment only.”

Anti-abortion and abortion rights groups in Georgia had been eagerly awaiting the outcome of the case. If the 11th Circuit had upheld Alabama’s fetal-demise law, it would have allowed lawmakers here to enact a similar statute without fear of it being overturned in the Atlanta court.

Georgia’s attorney general Chris Carr had joined attorneys general from more than 20 other states in a legal brief asking the 11th Circuit to uphold Alabama’s law.

Alabama could appeal the ruling to the U.S. Supreme Court, where the nomination of Brett Kavanaugh to replace retiring Justice Anthony Kennedy could lead to a much more conservative court.

Brett Kavanugh has been nominated to fill retiring Justice Anthony Kennedy’s seat on the U.S. Supreme Court. (Matt McClain/The Washington Post)

Abortion opponents are hopeful that could mean the justices may reconsider all, or part, of Roe v. Wade. Senate Hearings on Kavanaugh’s nomination have not yet been scheduled.

In his opinion, Carnes questioned whether the state has “a legitimate interest requiring that the unborn child be humanely killed before it is torn apart.”

Alabama lawyers had argued that “fetal demise” could be accomplished a number of ways before a dilation and extraction procedure was used. These include severing the umbilical cord or injecting potassium chloride or the medication digoxin into the fetus.

But Carnes cited a lower-court judge’s findings that each of these procedures carry significant health risks to the mother, such as infections, cardiac arrest and hemorrhage. As a result, Alabama’s law puts too many undue burdens on women seeking abortions, unconstitutionally restricting their access to the procedure, he said.

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