Alabama Abortion Decision Raises Alarms Ahead of Kavanaugh Hearings

This week, a federal appeals court struck down Alabama’s ban on a safe, medically proven abortion method. The decision shows just how high the stakes are ahead of next month’s Senate confirmation hearings for Brett Kavanaugh, President Trump’s nominee to the Supreme Court. 

In recent years, anti-abortion politicians across the country have enacted hundreds of dangerous restrictions aimed at preventing women from obtaining abortions. Alabama has been at the forefront of this coordinated national campaign, with politicians there enacting a multitude of restrictions designed to make it impossible for a woman to get the medical care she needs. 

The latest legal battle concerned Alabama’s ban on dilation and evacuation (D&E) abortions. On Wednesday, the Eleventh Circuit Court of Appeals affirmed a lower court order invalidating the ban. The statute we challenged in the case, West Alabama Women’s Center v. Miller, 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.” The Eleventh Circuit judges affirmed that decision, explaining that their “role is to apply the law the Supreme Court has laid down,” and as a result of previous Supreme Court’s decisions, the Alabama statute plainly could not stand. 

But this positive decision came with an ominous twist. One of the judges wrote separately to note “on the record” that, while Supreme Court precedent required him to block this harmful restriction, if he had a seat on the Supreme Court, he would have upheld the statute and voted to invalidate Roe v. Wade altogether. “The problem I have,” Judge Dubina explained, “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.” 

This case is one of dozens of reproductive rights cases working their way through the federal court system, any one of which could reach the Supreme Court. They include cases challenging abortion bans like Alabama’s, mandatory delay laws designed to interfere with women’s abortion access, and efforts by Kentucky politicians to close down the last clinic providing abortions in the state. It also includes the ACLU’s legal challenge to the Trump administration’s policy blocking undocumented minors from obtaining abortion care — a policy Judge Kavanaugh was unwilling to put a stop to when the case came before him. 

Read more: Brett Kavanaugh's One Abortion Case

This brings us back to the pivotal juncture where we now find ourselves. Judge Kavanaugh’s confirmation hearings are scheduled to start in less than two weeks, and he has begun meeting with senators. In one meeting this week, he told Republican Senator Susan Collins of Maine that “he agreed with what Justice Roberts said at his nomination hearing, at which he said that [Roe] was settled law.” Some have assumed, notwithstanding Trump’s express commitment to nominating justices who would overrule this landmark precedent, that this statement is sufficient to assure us not to worry about a woman’s right to abortion if Judge Kavanaugh were confirmed to the Supreme Court. 

Such an assumption would be dangerous. 

Of course Roe is settled law — today.  But as the Eleventh Circuit’s ruling this week recognized, there are nine jurists in this country who get to decide what will be settled law tomorrow. Judge Kavanaugh’s agreement with Chief Justice Roberts on this issue should be particularly concerning to anyone who cares about a woman’s ability to actually get an abortion if she needs one. When the issue of abortion access was last before the Supreme Court in a case called Whole Woman’s Health, Chief Justice Roberts, who dissented from the court’s ruling, would have upheld medically unnecessary restrictions that would have shuttered most of the abortion clinics in Texas. 

Get Kavanaugh's position on abortion on the record

Judge Kavanaugh has been nominated to fill the seat of Justice Kennedy, who joined the majority in invalidating Texas’s harmful restrictions. If Chief Justice Robert’s view had prevailed, abortion would have been as good as outlawed for millions of women in Texas, even without the court expressly overturning Roe. One can treat Roe as settled law and nevertheless water down its protections to the point that they are meaningless. The question is not simply whether Roe remains settled law, but whether the constitutional commitments it embodies are fully enforced. 

Given the huge stakes of a lifetime appointment to the nation’s highest court, senators must demand detailed, substantive answers from Judge Kavanaugh on this and other fundamental questions. They 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. 

Anything less would be an abdication of senators’ constitutional responsibilities, and a betrayal of the people they represent. 

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Dr. Timothy Leary

This is appalling. Without the D&E abortion method, we would have to go back to the C.H. & C.O. (Coat Hanger and Castor Oil) method.

SgrA*

I don't think any judge choice by a cheat like Trump should be considered. The Kavanaugh review should be closed-down, it is public knowledge that the President is in jeopardy for censure and removal from office. In fact, this raises the question, how do you unwind consequences from corrupted election results? We know a timeline of proof with the ability to show that -- if not for those actions taken by several campaign members on Donald Trump's 2016 presidential election -- wrongfully committed acts will be prosecuted as crimes, and there will be people who need to be compensated through legal settlements, and reparations where needed. No need to complicate this matter further by continuing with the presumption of a Kavanaugh's nomination.

Anonymous

Scripture passages which speak of our humanity in the womb...........

And the children struggled together within her; and she said, If it be so, why am I thus? And she went to inquire of the LORD. And the LORD said unto her, Two nations are in thy womb, and two manner of people shall be separated from thy bowels; and the one people shall be stronger thanthe other people; and the elder shall serve the younger. And when her days to be delivered were fulfilled, behold, there were twins in her womb. " - Genesis 25:22-24

• "Did not he that made me in the womb make him? and did not one fashion us in the womb?" - Job 31:15

• "I will praise thee; for I am fearfully and wonderfully made: marvellous are thy works; and that my soul knoweth right well. My substance was not hid from thee, when I was made in secret, and curiously wrought in the lowest parts of the earth. Thine eyes did see my substance, yet being unperfect; and in thy book all my members were written,which in continuance were fashioned, when as yet there was none of them." - Psalm 139:14-18

• "He that observeth the wind shall not sow; and he that regardeth the clouds shall not reap. As thou knowest not what is the way of the spirit, nor how the bones do grow in the womb of her that is with child: even so thou knowest not the works of God who maketh all." - Ecclesiastes 11:4-5

• "Yet now hear, O Jacob my servant; and Israel, whom I have chosen: Thus saith the LORD that made thee, and formed thee from the womb, which will help thee; Fear not, O Jacob, my servant; and thou, Jesurun, whom I have chosen." - Isaiah 44:1-2

• "Thus saith the LORD, thy redeemer, and he that formed thee from the womb, I am the LORD that maketh all things; that stretcheth forth the heavens alone; that spreadeth abroad the earth by myself;" - Isaiah 44:24

• "Listen, O isles, unto me; and hearken, ye people, from far;The LORD hath called me from the womb; from the bowels of my mother hath he made mention of my name...And now, saith the LORD that formed me from the womb to behis servant, to bring Jacob again to him, Though Israel be not gathered, yet shall I be glorious in the eyes of the LORD, and my God shall be my strength." - Isaiah 49:1,5

• "Then the word of the LORD came unto me, saying, Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations." - Jeremiah 1:4-5

• "He took his brother by the heel in the womb, and by his strength he had power with God: Yea, he had power over the angel, and prevailed: he wept, and made supplication unto him: he found him in Bethel, and there he spake with us;" - Hosea 12:3-4

• "And it came to pass, that, when Elisabeth heard the salutation of Mary, the babe leaped in her womb; and Elisabeth was filled with the Holy Ghost...For, lo, as soon as the voice of thy salutation sounded in mine ears, the babe leaped in my womb for joy." - Luke 1:41,44

AnonymouS

Too bad you don't feel the same holiness for our Earth's climate. How can you be holier than thou when you pollute God's creation so much, and follow a deceiver like Trump? You'll support kids in cages. Your categorizing of old scripture platitudes is like 'pouring old wine into new wine skins,' it just breaks and is wasted.

ProfoundStatement

And you are absolutely free to hold whatever religious views you wish. What you are not free to do, however, is force others to live by your religious beliefs, and the Bible is not the law.

Anonymous

The very same bible that not only condones abortion but gives instructions on how and why???
Numbers 5:11-31 New International Version (NIV)
The Test for an Unfaithful Wife
11 Then the Lord said to Moses, 12 “Speak to the Israelites and say to them: ‘If a man’s wife goes astray and is unfaithful to him 13 so that another man has sexual relations with her, and this is hidden from her husband and her impurity is undetected (since there is no witness against her and she has not been caught in the act), 14 and if feelings of jealousy come over her husband and he suspects his wife and she is impure—or if he is jealous and suspects her even though she is not impure— 15 then he is to take his wife to the priest. He must also take an offering of a tenth of an ephah[a] of barley flour on her behalf. He must not pour olive oil on it or put incense on it, because it is a grain offering for jealousy, a reminder-offering to draw attention to wrongdoing.

16 “‘The priest shall bring her and have her stand before the Lord. 17 Then he shall take some holy water in a clay jar and put some dust from the tabernacle floor into the water. 18 After the priest has had the woman stand before the Lord, he shall loosen her hair and place in her hands the reminder-offering, the grain offering for jealousy, while he himself holds the bitter water that brings a curse. 19 Then the priest shall put the woman under oath and say to her, “If no other man has had sexual relations with you and you have not gone astray and become impure while married to your husband, may this bitter water that brings a curse not harm you. 20 But if you have gone astray while married to your husband and you have made yourself impure by having sexual relations with a man other than your husband”— 21 here the priest is to put the woman under this curse—“may the Lord cause you to become a curse[b] among your people when he makes your womb miscarry and your abdomen swell. 22 May this water that brings a curse enter your body so that your abdomen swells or your womb miscarries.”

“‘Then the woman is to say, “Amen. So be it.”

23 “‘The priest is to write these curses on a scroll and then wash them off into the bitter water. 24 He shall make the woman drink the bitter water that brings a curse, and this water that brings a curse and causes bitter suffering will enter her. 25 The priest is to take from her hands the grain offering for jealousy, wave it before the Lord and bring it to the altar. 26 The priest is then to take a handful of the grain offering as a memorial[c] offering and burn it on the altar; after that, he is to have the woman drink the water. 27 If she has made herself impure and been unfaithful to her husband, this will be the result: When she is made to drink the water that brings a curse and causes bitter suffering, it will enter her, her abdomen will swell and her womb will miscarry, and she will become a curse. 28 If, however, the woman has not made herself impure, but is clean, she will be cleared of guilt and will be able to have children.

29 “‘This, then, is the law of jealousy when a woman goes astray and makes herself impure while married to her husband, 30 or when feelings of jealousy come over a man because he suspects his wife. The priest is to have her stand before the Lord and is to apply this entire law to her. 31 The husband will be innocent of any wrongdoing, but the woman will bear the consequences of her sin.’”

Anonymous

The ACLU needs to look into the closure of the Dayton Ohio women's health site just very recently. Ohio's anti-choice men are marching!!! GOP reps are all in favor. Please look at Ohio.

Jo

I agree and want to ask a different question. Why does a uninducted co-conspirator nomination for a Supreme Court Justice receive any consideration by U.S.Senators at all - ever?

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