by Thomas Valentine
Alabama has enacted the first law in decades to make abortion illegal again in a state. The new law is designed as the boldest and most direct challenge to Roe v. Wade in over 25 years.
The law, titled the Alabama Human Life Protection Act, was passed by an overwhelming vote (74-3 in the state House and 25-6 in the state Senate) and promptly signed into law by Governor Kay Ivey. It will take effect in six months if it is not blocked by a court and will make abortion a felony punishable by up to 99 years in prison for any person who performs one. It does not provide exceptions for cases of rape and incest, which account for less than 0.1 percent of all abortions, and only excepts medical emergencies that directly threaten the life of the mother. The law also disallows any kind of punishment for the mother, stating explicitly, “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.”
The law comes six months after Alabama voters approved a constitutional amendment making it state policy to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life” and to state that no provisions of the constitution provide “a right to an abortion or require funding of abortion.” The amendment was enacted in November 2018 by a 59 percent to 41 percent vote.
The text of the bill recognizes that the Declaration of Independence’s “all men are created equal” truth extends to the abolishment of slavery, women’s suffrage, prosecution of war crimes at Nuremburg, the civil rights movement, and the battle to end abortion. It lays out medical and scientific evidence that the unborn child is a unique human life. And it describes how the estimated 50 million babies aborted since Roe v. Wade was handed down in 1973 outnumber the combined total of deaths in the Holocaust, Stalin’s gulags, Chinese purges, Cambodian killing fields, and the Rwandan genocide — combined.
The law is intended as a direct challenge to Roe v. Wade now that Justice Brett Kavanaugh has replaced Anthony Kennedy on the Supreme Court. Kennedy had initially voted to overturn Roe v. Wade in the 1992 case Planned Parenthood v. Casey but switched his vote and became a staunch supporter of legalized abortion for the remainder of his tenure.
But there is a question over how Kavanaugh would rule in such a case. Kavanaugh authored a pro-life dissent in the case of an illegal immigrant who was seeking a taxpayer-funded abortion while in U.S. custody as a circuit court judge, but he voted not to take up an appeal of a lower court ruling that states could not block abortion providers from receiving Medicaid funding.
Chief Justice John Roberts is also a question mark. Roberts urged the reversal of Roe as an attorney in the George H.W. Bush administration and dissented from the 2016 ruling Whole Woman’s Health v. Hellerstedt declaring Texas laws imposing health and safety regulations on abortion clinics unconstitutional. Roberts is seen by court observers as taking an increased interest in preserving the Supreme Court “as an institution” and may not want to issue sweeping rulings.
The Alabama law comes a week after Georgia enacted a law prohibiting abortion after the baby’s heartbeat can be detected, which is around six weeks into pregnancy. Pro-abortion forces have vowed to challenge both laws, and they are almost certain to be blocked by lower court judges. They will likely take at least two years to make it to the Supreme Court, and four justices are needed to take up a case.
There are a number of possible outcomes, but there are a few that seem most plausible at this point.
One is that Kavanaugh and Roberts join with the Court’s liberals and decline to take up either Alabama’s or Georgia’s laws, allowing lower court rulings blocking the laws to stand. They could decline to take up one but accept the other. They could take them both at the same time and issue a more generalized ruling that restricts more abortions but isn’t a complete reversal of Roe. Or Kavanaugh and Roberts could decide to put themselves in the company of the justices who overturned unjust precedents in Brown v. Board of Education, and throw Roe out. If Roe was overturned, it would most likely send abortion back to the states to govern.
It will likely be years before something happens, but Roe v. Wade seems on shakier ground than it’s been in over 25 years.
Photo credit: Anna Levinzon via Flickr, CC BY 2.0