On Tuesday, the Alabama state legislature passed a bill effectively banning abortion in the state, but with an underlying goal of challenging the legal precedent across the country: overturning the landmark Roe v. Wade ruling.
The bill now goes to the desk of Republican Governor Kay Ivey, who is expected to sign it into law. According to the text of the bill itself, abortion and attempted abortion are felony offenses, “except in cases where abortion is necessary in order to prevent a serious health risk to the unborn child’s mother.” The doctor performing the abortion would be criminally liable, not the mother.
The bill’s sponsor, Republican Alabama State Rep. Terri Collins, said her goal was to challenge the Supreme Court’s 1973 ruling. “My goal with this bill, and I think all of our goal[s], is to have Roe v. Wade turned over, and that decision be sent back to the states so that we can come up with our laws that address and include amendments and things that address those issues,” she said.
The American Civil Liberties Union (ACLU) of Alabama wasted no time in helping Collins reach her goal. They vowed to file a lawsuit as soon as the bill is signed into law.
The ACLU of Alabama, along with the National @ACLU and @PPFA, will file a lawsuit to stop this unconstitutional ban and protect every woman’s right to make her own choice about her healthcare, her body, and her future. #alpolitics
— ACLU of Alabama (@ACLUAlabama) May 15, 2019
An amendment proposed by Alabama Democrats sought to allow abortions for pregnancies caused by rape or incest, but it failed 21-11. The tactic of prohibiting abortion in nearly all circumstances and providing only one exception seems to be a direct aim at challenging the heart of Roe: the idea that laws cannot place an “undue burden” on access to abortion.
Other states are rapidly passing laws that challenge Roe‘s standard, which allowed abortion nationwide up until the point at which a baby could be born and survive outside the womb, or around 24 weeks into a pregnancy. “Heartbeat bills” which prohibit abortion after a fetus’ heartbeat is detected (about six weeks into pregnancy) have passed this year in Georgia, Kentucky, Mississippi, and Ohio, and previously in North Dakota and Iowa.
States are anticipating that these laws will be appealed and become cases picked up by the now conservative-swinging Supreme Court. An uptick in these bills is likely thanks to the pro-life movement which redoubled its efforts to overturn Roe after the appointment of Justice Brett Kavanaugh. After the death of Justice Antonin Scalia and the retirement of Justice Anthony Kennedy, the court now consists of five conservative justices (and four liberals) on the bench.
Eric Johnston, founder of the Alabama Pro-Life Coalition, who helped write the Alabama bill, told the New York Times that passing a “heartbeat bill” instead of banning abortion outright would be a wasted opportunity with the current Supreme Court.
“Why not go all the way?” he asked.
Pro-abortion activist groups such as Planned Parenthood, the ACLU, and Center for Reproductive Rights maintain hope that the Supreme Court is hesitant to overturn precedent that has been set for decades. Both Kavanaugh and Justice Neil Gorsuch acknowledged in their nomination hearings that Roe v. Wade is “settled Supreme Court precedent” that has been “reaffirmed many times” over the years.
And yet, just last June, SCOTUS overturned precedent in Janus v. AFSCME, where they reversed a 40-year-old decision regarding public union fees that violated the First Amendment. Justice Stephen Breyer dissented, saying, “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law.”
Even as more states pass extreme abortion laws in both directions, a potential Supreme Court reversal is far off in the future as the appeals to state laws could take years to work their way up through circuit courts. The fight against abortion in Alabama—and the red states that will perhaps follow—is only the beginning.