This November, both Alabama and West Virginia will vote on proposed state constitutional amendments which stipulate that a right to abortion is not protected at the state level. Although both state legislatures approved the ballot measures last April and May, the two initiatives could have more immediate relevance than expected if Judge Brett Kavanaugh is confirmed and the Supreme Court shifts toward a conservative majority.
Since Justice Anthony Kennedy announced his retirement in late June, conservatives and liberals alike have speculated about the likelihood of a potential court reversal of Roe v. Wade, the landmark 1973 Supreme Court case that legalized abortion nationwide and ruled restrictive state regulation of abortion as unconstitutional. Following the announcement of Trump’s Supreme Court pick, conservatives heralded Kavanaugh and the likelihood of a decidedly conservative court majority with hope. Liberal organizations, on the other hand, voiced fear and concern for the future.
“Tonight Trump made good on his campaign promise to install a justice on the Supreme Court with one singular goal, which is to end Roe and criminalize abortion in this country,” Ilyse Hogue, president of NARAL Pro-Choice America, stated last week. And the Women’s March issued a statement calling Trump’s pick “a death sentence for thousands of women in the United States.”
While some believe that a Roe v. Wade reversal would have immediate and devastating consequences, others argue that changes would not be far-reaching or instantaneous. Even if Roe v. Wade is completely overturned, women would still be able to obtain abortions in most states, said Americans United for Life Senior Counsel Clarke Forsythe.
“The court can’t make abortion illegal,” Forsythe argued. “There’s no federal statute that makes abortion illegal, and there’s no state prohibition in all states that would make abortion illegal.”
Since a Roe reversal would leave the question of abortion up for individual states to decide, pro-life advocates in West Virginia and Alabama are seeking to ensure that abortion is not protected as a fundamental right in their state constitutions. State Rep. Matt Fridy, a Republican who sponsored the amendment in the Alabama legislation, wants to be sure that the Alabama Constitution won’t be used to protect abortions in the event that Roe v. Wade is overturned.
“We want to make sure that at a state level, if Roe v. Wade is overturned, that the Alabama Constitution cannot be used as a mechanism by which to claim that there is a right to abortion,” Fridy said.
In West Virginia, the amendment on the November ballot asserts that the state Constitution neither “secures or protects a right to abortion or requires the funding of abortion.” If approved, the amendment would limit taxpayer dollars currently funding on demand abortions. If Roe v. Wade is overturned, the amendment will also ensure that the West Virginia Constitution can’t be used to protect rights to abortion.
As of now, North Dakota, South Dakota, Mississippi, and Louisiana all have laws in place that outlaw abortion at the state level. If the constitutional amendments in Alabama and West Virginia are approved in November, they will join a small but growing coalition of states in which a Roe reversal would have an immediate impact.
Kristan Hawkins, president of Students for Life in America, applauded the proposed constitutional amendment in West Virginia.
“We know that Roe v. Wade will someday be overturned, and this is exactly the kind of ground game that policy leaders should be championing across the country,” Hawkins said. “State leaders must prepare for the day Roe v. Wade falls, as have other deeply flawed cases such as Plessy v. Ferguson or Dred Scott vs. Sanford.”
Photo credit: Anna Levinzon via Flickr, CC BY 2.0
