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Appeals court seems unlikely to uphold ‘fetal demise’ abortion law

A panel of judges on Thursday sharply questioned a state attorney who asked the federal appeals court in Atlanta to uphold Alabama’s so-called “fetal demise” law.

The judges expressed concern that the 2016 statute requires abortion doctors to perform additional procedures that critics say put women at increased and unnecessary risk of harm and infection. These procedures would be performed before a physician conducts a dilation and evacuation abortion, in which the fetus is removed in pieces with forceps and suction.

If upheld, the law would allow criminal prosecutions of abortion doctors in Alabama who fail to comply. The statute is being challenged by abortion clinics and doctors represented by the American Civil Liberties Union.

Last year, Senior U.S. District Court Judge Myron Thompson in Montgomery struck down the law. “Alabama women would likely lose their right to pre-viability abortion access at or after 15 weeks,” he wrote.


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Dilation and evacuation is the most commonly used procedure for second-trimester abortions. It takes 10 to 15 minutes and is considered to be extremely safe, Thompson found.

Even so, Alabama Assistant Attorney General Jim Davis asked the court to recognize that dilation and evacuation abortion is “a monstrous procedure.”

“We do think the state has a profound interest in the life of the unborn,” Davis told the three-judge panel for the 11th U.S. Circuit Court of Appeals. “We think this should be done in a more humane way.”

The 11th Circuit court rulings set precedent for law in Georgia, Alabama and Florida.


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In a court filing, attorneys general from more than 20 states, including Georgia, asked the 11th Circuit to uphold Alabama’s law.

“The abortions here, referred to as ‘dismemberment’ abortions, kill fetuses quite literally by tearing them limb from limb while they are still alive in the womb,” the attorneys general said.

The case has the attention of anti-abortion groups in Georgia, said Camila Zolfaghari, executive director of the Georgia Life Alliance.

“We watched these laws as they’re passed in other states and watch them closely as they go through the courts so we can help Georgia craft laws that can withstand legal challenges,” Zolfaghari said. Georgia does not have a law like the one on appeal from Alabama, she said.


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Fifteen other states, many in the Northeast and out West, filed their own brief asking the 11th Circuit to strike down Alabama’s law. “(It) is part of a larger national strategy to limit access to abortion care and interfere with women’s constitutionally protected right to make reproductive choices,” they said.

During Thursday’s arguments, Senior Judge Joel Dubina noted that Thompson — the judge who struck down the law last year — made specific fact findings and credited the ACLU’s experts over the state’s experts, who said women would not be placed at undue risk of harm.

U.S. District Court Judge Leslie Abrams of Albany, sitting as a visiting judge, agreed with Dubina. “Judge Thompson found your experts weren’t credible,” she told Davis.

In court motions, Alabama attorneys said there are other ways besides dilation and evacuation to induce “fetal demise.” These include severing the umbilical cord or injecting potassium chloride or the medication digoxin into the fetus. Once one of these three methods is performed, the dilation and evacuation procedure can then be used, the state said.

Chief Judge Ed Carnes of the 11th U.S. Circuit Court of Appeals in Atlanta (HANDOUT)

Through their questions, all three appellate judges showed no inclination to uphold the statute.

“The evidence more than suggested that most women face greater risk,” Chief Judge Ed Carnes said.

Then, referring to lower-court hearings, Carnes asked, “Who testified it wouldn’t raise the risk for women?”

“Nobody,” Davis replied. He then contended that women would not face a significant risk.

“It’s not a significant increase of risk unless you’re the person on the procedure table,” Carnes shot back.



The chief judge then cited testimony from an expert who said there was up to a 10 percent chance that women could suffer serious complications when undergoing one of the “fetal demise” procedures.

“Does the state say that’s close enough for government work and sorry for all those other folks?” Carnes asked.

ACLU attorney Alexa Kolbi-Molinas noted that the vast majority of dilation and evacuation abortions are performed long before a fetus can feel pain.

“This law imposes undue burdens,” she said. “It would force every woman seeking an abortion after 15 weeks painful, unnecessary, experimental and risky procedures.”

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