Alabama Abortion Decision Raises Alarms Ahead of Kavanaugh Hearings

(Aug. 23, 2018): Alabama Abortion Decision Raises Alarms Ahead of Kavanaugh Hearings, by Andrew Beck:

Last week the Eleventh Circuit struck down an Alabama ban on dilation & evacuation (D&E) abortions, affirming a lower court decision finding the ban unconstitutional.  However, the decision underscored the current fragile state of constitutional protection for abortion.

According to Andrew Beck, the Alabama statute

made it a crime for physicians to provide D&E abortions. Had Alabama been permitted to enforce the ban, it would have prevented hundreds of women each year from being able to have an abortion, because D&E is the only outpatient procedure that is available after the earliest weeks of the second trimester. As the trial court that heard the case explained, the state could not “justify such a substantial obstacle to the constitutionally protected right to terminate a pregnancy.” 

Although the Eleventh Circuit panel agreed that the law was unconstitutional, Judge Dubina wrote separately on the record to express his own personal disagreement with Roe v. Wade.  Judge Dubina noted that while he is bound to follow Supreme Court precedent as an appellate judge, if he were on the Supreme Court, he would have voted to uphold the statute and overturn Roe v. Wade.  Judge Dubina's comments underscore the threat that, following Justice Kennedy's retirement, a newly constituted Supreme Court can overrule Roe v. Wade or water down its protections. 

Beck notes that there are "dozens of reproductive rights cases working their way through the federal court system, any one of which could reach the Supreme Court."  Given that the next Supreme Court appointment will shift the balance of the Court, he emphasizes that Senators questioning Judge Kavanaugh:

must insist that he disclose not whether he acknowledges that Roe is settled law, but whether he believes that the Constitution protects the fundamental right to obtain an abortion, and how meaningful that protection is. To paraphrase Judge Dubina, Judge Kavanaugh should be asked not whether he acknowledges all of the Supreme Court’s precedents, but whether he agrees with them or not.