The Alabama Abortion Bill: Too Much Too Soon

Ken AshfordCourts/Law, Supreme Court, Women's IssuesLeave a Comment

Alabama’s state Senate passed a bill on Tuesday to outlaw nearly all abortions, creating exceptions only to protect the mother’s health, as part of a multistate effort to have the US Supreme Court reconsider a woman’s constitutional right to an abortion.

The country’s strictest abortion bill was previously approved by the Alabama House of Representatives and will now go to Republican Governor Kay Ivey, who has withheld comment on whether she would sign but is generally a strong opponent of abortion.

The law, which passed 25-6, would take effect six months after being signed by the governor, but is certain to face legal challenge from the American Civil Liberties Union and other groups which have vowed to sue.

Legislation to restrict abortion rights has been introduced this year in 16 states, four of whose governors have signed bills banning abortion if an embryonic heartbeat can be detected.

The Alabama bill goes further, banning abortions at any time. Those performing abortions would be committing a felony, punishable by 10 to 99 years in prison, although a woman who receives an abortion would not be held criminally liable.

The Republican-controlled Alabama Senate also defeated a Democratic amendment that would have allowed legal abortions for women and girls impregnated by rape and incest.

Anti-abortion advocates know any laws they pass are certain to be challenged, and courts this year have blocked a restrictive Kentucky law and another in Iowa passed last year.

But supporters of the Alabama ban said the right to life of the unborn child transcends other rights, an idea they would like tested.

Republican Senator Clyde Chambliss, arguing in favor of the Alabama bill, said the whole point was “so that we can go directly to the Supreme Court to challenge Roe versus Wade.”

The high court, now with a majority of conservative justices after Republican President Donald Trump appointed two, could possibly overturn Roe v. Wade, the 1973 landmark decision establishing a woman’s right to an abortion.

But I don’t think so.

IFor decades, conservatives have tried to chip away at the corners of Row v Wade with misogynistic laws that LIMIT abortion (or do end runs around it with regulations, like requiring abortion clinics to have really wide hospital-size hallways, which almost none have). In this effort, they have been quite successful.

But Alabama’s law is a full-on frontal challenge to the standing law of Roe. It was intended to be that way, in the hopes that this Supreme Court would overturn Roe.

I think anti-choice advocates may have bitten off more than SCOTUS can chew. The doctrine of stare decisis is that there is a strong presumption against overturning Supreme Court decisions. The conservative belief is that THIS court will shun stare decisis, and has no problem overturning prior decisions.

But the abortion question has been dealt with TWICE by the Supreme Court — once in Roe (1973) and again in another head-on assault in Planned Parenthood v Casey (1992). Overturning a Roe AND Casey SHOULD give the justices pause.

And I think it will give pause to the swing vote, Chief Justice Roberts. He is probably against abortion personally, but he has bigger concerns: he doesn’t want to go down in history as the head of an activist court. He believes the role of the judiciary is to call balls and strikes, and should not change the rules of the game,

If abortion rights were significantly weakened such that Roberts could effectively end Roe without heaving such a heavy load, he would gladly do so. But the anti-abortion movement isn’t there yet. Another sports analogy: The Alabama law is Hail Mary pass from the 50 yard line, not a run-in from the 1 yard line. And Roberts could very well refuse to play ball.

My guess? The district courts will rule the Alabama and Georgia laws unconstitutional (that is predictable), the appeals court will uphold the unconstitutionality, and the US Supreme Court will choose not to review the cases. And so this all dies. Conservatives have made a tactical error by throwing a Hail Mary which might not be caught, thus further cementing Roe v Wade as the law of the land.

UPDATE: Pat Robertson agrees with me: