On Wednesday, the 11th U.S. Circuit Court of Appeals upheld a lower court’s ruling blocking an Alabama law that would have both banned the most common form of second-trimester abortion and criminalized doctors who violated the ban. The decision was a win for reproductive rights—but you’d hardly know that by reading the opinion. It drips with anti-abortion animus, invokes the most extreme anti-choice rhetoric, and calls the legitimacy of four decades of constitutional reproductive rights jurisprudence into question. And that’s just in the first paragraph.
The result is to put reproductive rights advocates on notice. As far as conservative federal judges are concerned, there’s nothing settled about abortion rights—and those judges are just one conservative Supreme Court appointment away from losing the constraint of Roe v. Wade as precedent.
In May 2016, then-Alabama Gov. Robert Bentley (R) signed into law SB 363, a measure that prohibits a physician from performing a “dismemberment abortion” unless it is necessary to prevent serious health risk to the pregnant person. The law targets a procedure known as dilation and evacuation (D and E), which is frequently used during second-trimester abortions. Shortly after it was enacted, attorneys on behalf of West Alabama Women’s Center, the Alabama Women’s Center, and the medical directors of both clinics sued arguing the law was unconstitutional on its face because it was effectively a pre-viability abortion ban. A lower court agreed and blocked the law from taking effect, issuing first a temporary restraining order and then a permanent injunction. Attorneys for the State of Alabama appealed and on Wednesday, the 11th Circuit Court of Appeals reluctantly upheld the lower court’s permanent injunction blocking the measure.
Just how reluctant was it? Here’s how the 11th Circuit described the procedure in question: “This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. 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.”
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That’s not exactly the kind of language one expects to see in a decision affirming abortion rights. “Dismemberment abortion” bans share a similar dubious origin story as their predecessor, the “partial-birth abortion” ban. Both replace evidence-based, scientific terminology for safe and effective procedures with colloquialisms designed to appeal to emotion in an attempt to dismantle abortion rights.
This passage, too, reeks of anti-abortion sentiment: “About 20 years after a majority of the [Supreme] Court had discovered that right [to abortion] lurking somewhere in the ‘penumbras of the Bill of Rights’ as illuminated by the ‘concept of ordered liberty,’ a majority of the Court devised an ‘undue burden’ test to go with it,” the 11th Circuit wrote. In two short sentences, the appeals court denounces Roe v. Wade and Planned Parenthood v. Casey, stating the Supreme Court “discovered” a right to abortion in Roe v. Wade and snarking that it devised the undue burden test to support that “discovered” right.
Those brief passages are, in tone and content, representative of the entire 40-page opinion, and that should give all reproductive rights supporters pause. Yes, Wednesday’s decision produced a good outcome because the Alabama measure remains blocked. But can we rest assured, with opinion language like this, that the law is really on the side of reproductive rights and autonomy? I don’t think we can.
“In our judicial system, there is only one Supreme Court, and we are not it,” the 11th Circuit states as it closes its opinion. “As one of the ‘inferior [c]ourts,’ we follow its decisions.”
Those words ring especially ominously in a decision issued the day after Supreme Court nominee Brett Kavanaugh promised Sen. Susan Collins (R-ME) that as far as Roe is concerned, Kavanaugh agreed with Chief Justice John Roberts that the matter is “settled law.” Roberts is, of course, a reliably anti-choice vote who has yet to meet an abortion restriction he wouldn’t vote to uphold, including the Texas restrictions a majority of his colleagues found unconstitutional just a few short years ago in Whole Woman’s Health v. Hellerstedt. The fifth and final vote to strike those restrictions came from retired Justice Anthony Kennedy, whom Kavanaugh, should he be confirmed, would replace.
In other words, on Tuesday Kavanaugh more or less confirmed he’s the fifth vote to strike Roe v. Wade by directly aligning himself with Roberts. And then on Wednesday, the 11th Circuit Court of Appeals provided him a possible vehicle to do so: It is all but a given that Alabama will appeal the decision to the Roberts Court.
And Alabama is not alone. Kentucky, Arkansas, Kansas, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia have all enacted some form of ban on D and E abortions. Only Mississippi and West Virginia’s laws are currently in effect, as federal or state courts have blocked the remaining measures. Arkansas and Texas have their cases pending before the Eighth and Fifth circuit courts of appeals, respectively. A September 2019 trial is scheduled in the case challenging Louisiana’s ban. Kentucky’s ban remains blocked while the case challenging it proceeds.
Any one of these cases, or some combination of all of them, could find their way before the Roberts Court within the next year or two. Should that happen, we will see the first true test of Roe‘s and Casey’s resilience. Can abortion rights jurisprudence survive at the Supreme Court without Justice Kennedy and with someone like Brett Kavanaugh as his replacement? If Wednesday’s opinion is any clue, conservative federal courts sure hope not.