Courageous Judge Writes “Roe v. Wade Has No Basis in the Constitution”

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By Mat Staver, LifeNews, August 23, 2018

WASHINGTON, DC  – The Eleventh U.S. Circuit Court of Appeals criticized the Supreme Court’s abortion decisions, calling them an “aberration of constitutional law.”

While disagreeing with the Supreme Court, the court of appeals acknowledged it is not the Supreme Court, and thus affirmedthe lower court’s decision that found Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.  The three-judge panel’s decision reflects its reluctance to overturn the law, but its allegiance to its role as an intermediate appellate court under the authority of the Supreme Court’s previous decisions.

In her special concurrence, Judge Joel Frederick Dubina opined:

I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. 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.

In West Alabama Women’s Center v. Thomas Miller, Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain.

The opinion refers to Liberty Counsel’s brief regarding the fact that unborn babies feel pain as early as eight weeks gestation.

The court used graphic language to describe the brutal abortion procedure:

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. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.

Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018).

The court continues its description of the barbarous act of dismemberment abortion:

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As Justice Kennedy has described this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958, 20 S. Ct. 2597, 2624 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.” Id. That is not the result of any sadistic impulses of the practitioner but instead is part and parcel of the method. See id. One practitioner explained:

The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is [like] “pulling the cat’s tail” or “drag[ging] a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.” Id.

In this type of abortion, the unborn child dies the way anyone else would if dismembered alive. “It bleeds to death as it is torn limb from limb.” Id. at 958-59, 120 S. Ct. at 2624. It can, however, “survive for a time while its limbs are being torn off.” Id. at 959, 120 S. Ct. at 2624. The plaintiff practitioner in the Stenberg case testified that using ultrasound he had observed a heartbeat even with “extensive parts of the fetus removed.” Id. But the heartbeat cannot last. At the end of the abortion – after the larger pieces of the unborn child have been torn off with forceps and the remaining pieces sucked out with a vacuum-the “abortionist is left with a tray full of pieces.” Id. It is no wonder that Justice Ginsburg has described this method of abortion as ‘gruesome’ and ‘brutal.’ [Gonzales v. Carhart, 550 U.S. 124, 182, 127 S. Ct. 1610, 1647 (2007)] (Ginsburg, J., dissenting) (comparing this method to partial birth abortion and stating that this one “could equally be characterized as brutal, involving as it does tearing a fetus apart and ripping off its limbs,” describing it as “equally gruesome,” and arguing that it is no less “akin to infanticide” than partial birth abortion) (quotation marks omitted).

Alabama’s law is a common-sense solution to a barbaric and gruesome procedure. If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. 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.

LifeNews Note: Mat Staver is the Chairman of Liberty Counsel Action and Founder and Chairman of Liberty Counsel.