Wednesday, August 22, 2018

11th Circuit judges speak their minds on Roe v. Wade (and it wasn't Judge Bill Pryor!)

The case is West Alabama Women's Center v. Williamson.

Chief Judge Carnes starts off his opinion this way:  "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." (Footnote omitted).

If there is any question as to how he feels about abortion, you can see it here in the first paragraph of the intro section: "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."

Judge Dubina concurs just to make sure that everyone knows that he personally disagrees with Casey and Roe too: 
I concur fully in Chief Judge Carnes’s opinion because it correctly characterizes the record in this case, and it correctly analyzes the law. 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.
OK, Judge Dubina. You're on record now.

In other 11th Circuit news, the court addressed the Georgia state court bail system where an man was arrested and was too poor to post bail.  Therefore he was held for 6 days even though the misdemeanor he was arrested for could not be punished by a jail sentence.  Judge O'Scannlain (visiting from the 9th Circuit) along with Julie Carnes said as long as bail is addressed within 48 hours, all is OK.  Judge Martin started her persuasive dissent like this:

Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail. He challenges the City’s practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27. In this way, the Majority renders it unnecessary to review the City’s practice with heightened scrutiny. I believe the Majority rewrites this court’s binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that “[t]he incarceration of those who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057. The Majority fails to recognize this infringement on the rights of indigents, so I dissent.


Anonymous said...

Why are all the visiting court of appeal judges conservatives?

Anonymous said...

As far as their description of the abortion procedure , it is 100% accurate. The dismemberment of a baby is what abortion is all about. Liberals have been trying to hide this fact from the public for eons. Kudos to Carnes for exposing this inhumane business.

Anonymous said...

Everyone out there trying to get onto Trump's short list

Anonymous said...

I love the condescending "OK, Judge Dubina. You're on record now." If a liberal appellate judge made a similar comment about say, citizens united, would you be just as condescending? Me thinks no.

I believe we should try, if we can, to respect each other's strongly held beliefs.

Anonymous said...

5:38 PM -- I doubt that. Because of their age, neither Carnes nor Dubina has any chance of being elevated to the Supreme Court, a fact that both of them know well.

Anonymous said...

@5:36, "liberals" are not trying hide anything. There is, however, an honest and good faith disagreement at play. Some people, myself included, do not believe that there is such a thing as a "living unborn child." To many of us, a child, by definition, has been born.

I understand that this might just feel like semantics to some people. I don't call those people liars, though. To most of us who support the right to an abortion (not to be confused with supporting abortion), we believe that the issue is an exceedingly difficult and complicated issue. And that in a free country where government should be limited, that the proverbial tie goes to the runner, i.e., when in doubt, we should be limiting the power of the government to tell us what we must and must not do.

I appreciate that, from some, this may illicit a "what about Obamacare - you liberals are such hypocrites" type response. But, for now, you have no idea whether I am a liberal or a libertarian or just an American (which, at the risk of killing the suspense, is what I am). So, for those inclined, skip the whataboutism.

Anonymous said...

5:36 -
I would bet DOM's paycheck that you are male, just like the two 11th Cir judges on this panel discussing the morality of an abortion that they will never have to face.
You and all conservatives have no problem forcing women to go through all pregnancies.
Liberals simply want each woman to have a choice and to be free to act on that choice.