Pro-abortion Senator Susan Collins of Maine reportedly came out of a meeting with Supreme Court nominee Brett Kavanaugh yesterday and told the media that Kavanaugh had assured her that Roe v. Wade was “settled law.” In yet another example of what passes for political discourse in the Bizarro World of Washington these days, pro-abortion forces rushed to the mikes to declare that “settled” means nothing, while pro-life forces (including AUL’s own Catherine Glenn Foster, quoted here in the Wall Street Journal) calmly reminded the public that to call a precedent “settled” only restates the position the Supreme Court has taken on Roe.
Of course, there’s no way to know whether Senator Collins conveyed Judge Kavanaugh’s views accurately in the first place. But even if Kavanaugh said words to that effect, he was only stating a truism – that it is the Supreme Court’s job to say “what the law is,” in the words of the High Court itself, and Roe remains the judicial law of the land until five Justices of the Court say that it’s not.
The public was reminded of that fact in a decision issued today by the Eleventh Circuit Court of Appeals. The case involved Alabama’s “dismemberment abortion” ban, which prohibited abortions done by the practice of “D&E abortion” – literally tearing the baby limb from limb. The court of appeals, with the Chief Judge of the Eleventh Circuit, Ed Carnes, writing, ruled that it was forced to apply “the aberration of constitutional law relating to abortion” and struck down the law. This, it did, with Chief Judge Carnes adding this postscript to a very reluctant opinion:
In our judicial system, there is only one Supreme Court, and we are not it. As one of the “inferior Courts,” we follow its decisions. The primary factfinder is the district court, and we are not it. Our role is to apply the law the Supreme Court has laid down to the facts the district court found. The result is that we affirm the judgment of the district court.
Judge Joel F. Dubina, the former chief judge of the circuit, concurred with Carnes’ opinion, and added his thoughts:
I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence … has no basis in the Constitution.” 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.
Interestingly, Chief Judge Carnes and Judge Dubina have at least one thing in common (besides being appointees of George H.W. Bush, not exactly a Red State president); they’re both from Alabama, and University of Alabama undergraduates, in fact. One is reminded of Justice Tom Parker of the Alabama Supreme Court, currently running for Chief Justice of that body on a platform openly critical of Roe, who in a published decision called it “arbitrary,” “incoherent,” and “mostly unsupported by legal precedent.”
Is the tide turning against Roe, or is it just the Tide – Alabama judges and the deep Red State South – turning against Roe? Consider that in the last few years, at least twelve federal appeals court judges have penned criticisms of Roe. Tomorrow, we’ll have a closer look at some of those judicial opinions that have criticized Roe, as we continue to examine whether Roe can truly be said to be “settled law.”