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Could Alabama’s abortion ban help the movement to overturn Roe v. Wade?

Alabama Gov. Kay Ivey signed the most restrictive abortion law in the country Wednesday, virtually eliminating the termination of pregnancy across the state with few exceptions. It’s the latest development in a broader movement by abortion opponents and anti-abortion lawmakers across the country, emboldened by President Donald Trump and a conservative majority on the Supreme Court, to push legislation that could prompt the highest court to reconsider Roe v. Wade, a 46-year-old precedent that protects a woman’s right terminate her pregnancy.

“We have long opposed Roe v. Wade,” said Clarke Forsythe, senior counsel for Americans United for Life, an anti-abortion advocacy group and law firm. “It’s an unjust and unconstitutional decision, and we hope it will be overturned as quickly as possible. The question is by what means, what case, and what time frame.”

While the idea of access to abortion remains popular among the general public — the latest Gallup poll found that 79 percent of Americans believe abortion should be legal, at least in some circumstances — it remains a major issue for conservative lawmakers and red-leaning states, who have pushed forward on legislation that would make it significantly harder for women to get the procedure. But support skews heavily along party lines. An October 2018 Pew Research study found that 59 percent of Republicans believe abortion should be illegal in all or most cases, while 76 percent of Democrats believe it should be legal.

Alabama’s bill would criminalize abortions with punishment of up to 99 years in prison for doctors that perform the procedure and includes only limited health exceptions (see sidebar for more). But the bill does not exempt cases of rape or incest.

In Georgia, Republican Gov. Brian Kemp last week signed a “heartbeat bill” that would ban abortion anytime after the first six weeks of a woman’s pregnancy, often the earliest a fetal heartbeat can be detected (though the term “heartbeat” is a matter of medical interpretation at that stage). Similar “heartbeat” bills have already been passed or considered by other state governments throughout the U.S., including Kentucky, Ohio and Tennessee.

Abortion advocates point out that at six weeks, many women may not realize they are pregnant.

“What we’re seeing this year on abortion bans is unprecedented,” said Elizabeth Nash, a senior state issues manager at the Guttmacher Institute, a research institution that advocates for abortion rights. “For 46 years, we’ve typically seen restrictions on abortion — things like waiting plans or limits on coverage. Those kinds of restrictions have been put on the backburner. Conservative legislators are now pursuing near total or total abortion bans.”

Why are states advancing controversial abortion laws now?

While abortion remains legal at the federal level under Roe v. Wade, state legislatures have found ways to chip away at those protections.

States have enacted requirements such as a 72-hour waiting period and mandatory counseling, limited insurance coverage on the procedure, and required doctors to have admitting privileges to nearby hospitals. These restrictions have led to the closure of many clinics across the country, essentially eliminating access for women who cannot travel to different communities. Six states currently have only one abortion provider, according to the Guttmacher Institute.

Extremely restrictive bills, such as the one poised to become law in Alabama, are “unabashedly an effort to force the courts to confront Roe,” said Florida State University law professor Mary Ziegler, and they have gained more traction in recent years.

Trump’s appointments of Neil Gorsuch and Brett Kavanaugh to the high court was seen by abortion opponents as an opportunity to reverse Roe.

“We’re hoping that those new Supreme Court justices are pro-life and we’re going to test that theory and find out,” Republican Ohio state Rep. John Becker told the PBS NewsHour in an interview Tuesday. Becker received national attention for introducing a state bill in April on abortion with a provision widely debunked as scientifically impossible by medical experts.

“These bills are anticipating the gutting or overturning of Roe at the federal level,” said Ashley Gray, a state advocacy adviser at the Center for Reproductive Rights, a nonprofit that supports abortion rights.

On Tuesday night after passage of the Alabama bill, Republican state Rep. Terri Collins said that the legislation is specifically “about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection,” the Washington Post reported. The lawmakers reportedly expect legal challenges to keep the law from taking effect.

Americans United for Life representative Clarke Forsythe acknowledged that for anti-abortion activists looking to overturn Roe as quickly as possible, these “heartbeat” bills may not be the most effective strategy.

“The stronger the limits, the greater the likelihood the courts will strike them down and they won’t go into effect,” Forsythe said. “They may be struck down, go up to the Supreme Court and not heard, leaving the injunction in effect in lower courts.”

But Tom McClusky, president of March for Life Action — which advocates for ending abortion through a yearly national march on Washington — told the PBS NewsHour that even if these restrictive bills are likely to get held up in court, it was important for advocates to support them now because it’s what they believe is the right thing to do — even if the court is not yet ready to act on it.

In reaction to the Alabama ban, the state chapter of the ACLU pledged in a tweet on Tuesday night to sue “to stop this unconstitutional ban and protect every woman’s right to make her own choice about her healthcare, her body, and her future.”

On Wednesday, Planned Parenthood and abortion clinics filed a lawsuit against the state of Ohio, challenging the abortion bill signed in April.

What’s the likely outcome of these bills?

While many of the new restrictive abortion laws have been enacted to force the courts to confront Roe, the strategy is still a “long shot,” said Florida State University’s Ziegler. Rather than making any changes to precedent on abortion, the Supreme Court may just let the decisions of lower courts on this legislation stand and not intervene at all.

On the chance that the Supreme Court does hear an abortion case, there has been “no signal” that it is considering a “radical” change to Roe, said Ziegler. In February, Chief Justice John Roberts joined the court’s more liberal-leaning justices in ruling that a Louisiana law requiring doctors to have specific hospital admitting privileges could not go into effect until the case makes its way through the lower courts.

Given Roberts’ comments about the independence of the judiciary, Ziegler said it is more likely the court may hear cases that allow it to “erode abortion rights more gradually” (e.g. state laws restricting later abortions) without looking “purely partisan.”

The Supreme Court is currently considering whether to hear two abortion-related cases–the Louisiana case and one from Indiana about a law that restricts the disposal of fetal remains and contains a reason ban.

Women protest Georgia’s anti-abortion “heartbeat” bill at the Georgia State Capitol in Atlanta on May 7, 2019. Photo by REUTERS/Elijah Nouvelage

At least six states have passed what are known as “trigger laws,” which will automatically make abortions illegal in the event that the Supreme Court overturns Roe.

“If that all gets reversed at the federal level, then we’re free to fix things at the state level,” said Becker, the Ohio lawmaker. Becker is drafting similar “trigger” legislation to be introduced to the Ohio House later this year. He describes his bill as “a modernized version of where we were in 1972,” the year before the Supreme Court decided Roe.

But as conservative states are working to challenge Roe, more liberal legislatures have taken action to protect abortion rights.

“Legislators from all stripes are looking at the Supreme Court,” noted Elizabeth Nash, who noted that the Vermont House of Representatives this week approved a measure that would limit lawmakers’ ability to place restrictions on abortion access. New York recently passed a similar law, and California already has one in place.

“There is movement in the other direction,” Nash said.

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