U.S. Appeals Court: Roe v. Wade Was ‘Aberration of Constitutional Law’

The nation’s lower courts are bound by Supreme Court precedent on abortion cases, but that doesn’t mean they can’t speak out and criticize it.

The U.S. Eleventh Circuit Court of Appeals issued a 3-0 ruling Wednesday agreeing that an Alabama law that banned a common abortion procedure was unconstitutional. 

The Alabama Unborn Child Protection from Dismemberment Act had prohibited abortion doctors from using Dilation and Evacuation, which involves killing an unborn baby by tearing it apart. This means the doctor will extract, for example, a head, two arms, a torso and two legs – all of the parts until the uterus is empty. Under Supreme Court precedent, the procedure remains legal.    

“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,” wrote Chief Judge Ed Carnes, who was nominated by President George H.W. Bush.

His opinion was joined by Judge Joel Fredrick Dubina, who also was nominated by George H.W. Bush. Judge Leslie J. Abrams, nominated by President Obama, wrote a note saying she was agreeing in the “judgment only” – meaning she didn’t affirm Carnes’ criticism of Roe.  

Dubina, though, wrote a concurring opinion that went even further than Carnes, saying he agrees with…