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Alabama Abortion Law, Take Two

By William Vogeler, Esq. on May 20, 2019

If you didn't hear it the first time, the U.S. Eleventh Circuit Court of Appeals really doesn't like the state of the law on abortion.

The last time the appeals court ruled on abortion in Alabama, the justices begrudgingly struck down the state's second-trimester abortion ban. But they made it loud and clear they didn't want to do it. They called the law that recognizes a woman's right to abortion an "aberration of the constitutional law relating to abortion."

If they get another abortion case -- or when they get to review Alabama's newest abortion law -- the judges will probably rule the same way. Probably.

'An Aberration'

What is certain, however, is that Alabama's new law effectively bans abortion. It allows no exception for rape or incest, and is seen by some as the case to challenge Roe v. Wade If so, it will not likely get any help from the Eleventh Circuit. In West Alabama Women's Center v. Williamson, the appeals court expressed its displeasure with the law since Roe. But that's the law, and they applied it. "In our judicial system, there is only one Supreme Court, and we are not it," the judges said.

It's not often that lower court judges call out their superiors in the judicial hierarchy. But there it is in the words of Chief Judge Edward Carnes: "Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration." Carnes, appointed to the Eleventh Circuit by President George H.W. Bush in 1992, has been chewing on it for a long time. He had his chance to say something about abortion last year, and he may soon have another chance. The American Civil Liberties Union has already said it will file a lawsuit to stop the Alabama legislation, which is set to take effect in six months.

In appellate time, that means it could be years before the case gets to a hearing before the U.S. Supreme Court -- if it gets that far. Some legal experts think the Alabama law will not survive. Alabama's own, U.S. Senator Doug Jones, called it "extreme," callous," and "shameful" for making rape and incest victims "political pawns."

'Fetal Personhood'

Like Georgia's new "heartbeat law," the Alabama law would protect "fetal personhood." Mary Ziegler, a law professor at Florida State University, says that's shaky ground. "I don't know if the Court would really want to get into that business because if an unborn child is a rights-holding person, that's not going to be true just in the context of abortion, that's going to be true across a lot of legal contexts, and that's going to create a whole body of law -- not just undoing Roe," she told Time. "It's going to start the court down a new legal path."

Conservative jurists, of course, don't usually do that. Just like the new Supreme Court -- and the judges of the Eleventh Circuit. Usually.

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