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With abortion measures, states see chance to challenge Roe v. Wade

With the Supreme Court's conservative makeup, more states are implementing legislation that tests the limits of Roe v. Wade. Alabama's governor has signed the most restrictive abortion law in the country, while Vermont aims to preserve abortion rights into the future. Amna Nawaz talks to The Montgomery Advertiser's Brian Lyman, VTDigger's Anne Galloway and Florida State University's Mary Ziegler.

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  • Amna Nawaz:

    With new conservative additions to the U.S. Supreme Court, more and more states are passing laws meant to test the limits of Roe vs. Wade.

    The latest, Alabama, where last night the state Senate passed the most restrictive abortion bill in the country.

    Inside the Alabama Senate chamber, four hours of heated debate.

  • Clyde Chambliss, R-Ala.:

    When that unborn child becomes a person, and we need legal guidance on when that is.

  • Vivian Davis Figures, D-Ala.:

    But that's not your business. You don't have to do anything for that child, but yet you want to make the decision for that woman that that's what she has to do.

  • Clyde Chambliss:

    I want to make the decision for that child.

  • Amna Nawaz:

    Outside the Statehouse, dozens of protesters.

  • Protester:

    When repro rights are under attack, what do we do?

  • Protesters:

    Stand up, fight back.

  • Amna Nawaz:

    All of it culminating with an overwhelming yes vote.

  • Man:

    House Bill 314 passes.

  • Amna Nawaz:

    And the nation's most-restrictive abortion bill.

    Alabama's HB-314 would ban almost every abortion at every stage of pregnancy. It would make it a felony for doctors to perform abortions. They could face up to 99 years in prison. The bill has no exceptions for cases of rape or incest, only when the mother's health is at risk.

    Alabama's bill is the latest attempt to limit abortion access in the seven months since Justice Brett Kavanaugh joined the Supreme Court. Since office October, 10 states have passed some form of restriction that range from fetal heartbeat bills banning abortion after six weeks, to requiring that fetal tissue be buried or cremated.

    Alabama's Republican Governor Kay Ivey says she wants to review the bill before deciding its fate, but the bill's advocates expect her to sign it. The new law is scheduled to go into effect in six months, but will almost certainly be blocked by the courts before then.

    All this puts Alabama on potential path to Supreme Court and the landmark Roe vs. Wade decision that legalized abortion nationwide more than 45 years ago.

    Now we take a look two states' efforts, Alabama and Vermont, to enact new and opposing abortion laws.

    I'm joined by Brian Lyman, a political reporter at The Montgomery Advertiser. He's in Montgomery, Alabama. Anne Galloway, editor of the VTDigger, joins us from Burlington, and, via Skype, Mary Ziegler. She's a law professor at Florida State University and author of several books on abortion and politics, including "After Roe: The Lost History of the Abortion Debate."

    Welcome to all of you. And thank you for being here.

    Brian, let's start with you, where we left off in the piece, in Alabama, the most restrictive abortion ban in the country. From your reporting, what do we know about why that bill was crafted the way that it was?

  • Brian Lyman:

    There is only within reason this bill was written the way it was. The supporters say they are trying to mount a direct challenge to Roe v. Wade.

    They believe that this law will create a legal challenge that they will probably lose in the lower courts, but they think they can appeal this all the way to the U.S. Supreme Court, and they think with the current makeup of the Supreme Court, they think they can get Roe overturned.

  • Amna Nawaz:

    Mary Ziegler, give us a little bit of context here. Alabama is not alone in passing some of these restrictions.

    A number of states have been making efforts over a number of years. Give us the landscape. What kinds of bills and restrictions have been making their way through state legislatures?

  • Mary Ziegler:

    Sure.

    So I think this is more of a long shot, if you're looking at what the court is actually likely to do. We have seen so-called heartbeat bills, including one recently passed in Georgia, all of which ban abortion at roughly the sixth week of pregnancy.

    And we have also seen more kind of incremental legislation that tends to focus on later abortions, including laws that ban abortion at 20 weeks on the grounds of fetal pain prevention. We have seen laws banning violation and evacuation, which is the most common second trimester procedure.

    And the Supreme Court even has a couple of cases before it right now that it could choose to hear, if it was so inclined, including a law that was passed in Indiana when Mike Pence was the governor.

  • Amna Nawaz:

    And I want to be clear about this, Mary Ziegler. A number of these incredibly restrictive bills that have been pushed more recently, are any of them actually in place? Are they implemented on the ground?

  • Mary Ziegler:

    No, all of them have either been blocked by a court or haven't gone into effect. And we wouldn't expect any of them to go into effect or not be challenged in a court.

    So we're really not talking about any of these laws being enforced in the near or mid-future.

  • Amna Nawaz:

    Anne Galloway, let's talk about Vermont now. We have talked a lot about the abortion restrictions that have been going into place.

    It's activity on the other end of the spectrum in Vermont. There's two legislative efforts on the table. Tell us what they do and how they would change current abortion law in Vermont.

  • Anne Galloway:

    Yes.

    Right now, Vermont law is silent on abortion. There are no restrictions or permissions in place. Lawmakers have proposed legislation that passed overwhelmingly in both the House and Senate, and that Republican Governor Phil Scott is poised to sign.

    This state statute would give blanket protection for abortion access across the state. At the same time, lawmakers have put forward a constitutional amendment that over the long term would provide more permanent protection for the woman's right to choose.

  • Amna Nawaz:

    So, there's both a state law and a constitutional amendment effort under way. Why both?

  • Anne Galloway:

    Well, that's because lawmakers are very nervous about the conservative majority on the U.S. Supreme Court, and the potential for the overturning of Roe vs. Wade.

    And they really are developing contingency plans should that happen, and they're really belt-and-suspender-ing it here. The state statute gives some temporary protection. They're worried about a conservative governor down the road who might put rulemaking in place that could gut funding for abortions in Vermont or that could restrict abortions through insurance plans and that kind of thing.

    So, long term, they feel that a constitutional amendment is the best way to ensure that women are able to access abortions in the future.

  • Amna Nawaz:

    Mary Ziegler, we hear a lot about the restrictions that are being put into place. Is Vermont alone in these kinds of efforts? Are there other states that have been pushing through, trying to enshrine protections for abortion rights?

  • Mary Ziegler:

    Yes.

    New York, obviously, is probably the best known, because its Reproductive Health Act attracted so much controversy. There 10 other states that already have protections for abortion rights on their statute books or in their state constitutions.

    Other state courts are introducing protections. For example, the Kansas Supreme Court recently issued a decision strongly protecting abortion in that state's constitution. And there are other states that are considering measures now, including New Mexico.

    So we probably haven't seen the end of efforts like the ones in Vermont to kind of create a world in which abortion is protected in some states after Roe is gone.

  • Amna Nawaz:

    So, Brian, back in Alabama, I want to be clear about this, though. The Republican legislators who voted for this did not include any exception for rape or incest in this.

    So they did that only with the assumption that this law would never actually go into place. Is that right?

  • Brian Lyman:

    The supporters of the bill are arguing this is purely a legal challenge to Roe vs. Wade. And they have kind of tried to hedge the effects of this bill by arguing that, if Roe were overturned, the state could come back and do its own abortion law which could include these exceptions for rape and incest.

    The problem is, is that there are two — well, there are two problems. One is that Alabama last fall approved a constitutional amendment that said there was no right to an abortion in the Alabama constitution, which seems like it would make it more difficult to address these exceptions in a post-Roe world.

    The other — the other issue here is that this legislature overwhelmingly voted to keep those rape and incest exceptions out of the bill. And these were not close votes. So it's very hard to see how this current legislature, at the very least, would want to take up this issue again, after voting so overwhelmingly to not include exceptions for sexual assault in this bill.

  • Amna Nawaz:

    And, very quickly, I wanted to ask you. We hear a lot about the — and we saw a lot of the protesters right outside of the Alabama Statehouse, the pushback against the restrictions.

    Has there been any pushback in Vermont against the effort to protect abortion rights there?

  • Anne Galloway:

    Yes, there has been pushback from the Vermont Right to Life Committee and from Bishop Christopher Coyne, the head of the Catholic Church here in Vermont.

    But lawmakers overwhelmingly passed the abortion rights legislation that I mentioned earlier. And there were Republicans and Democrats alike who backed it. And, in point of fact, 70 percent of Vermonters in a recent Pew Research poll said that they support a woman's right to choose.

    So there is broad-level support here. It's not a politically polarizing issue, as it is in other states.

  • Amna Nawaz:

    Mary Ziegler, this is the million-dollar question now.

    Of course, all these restrictive efforts that have been going into place, is this a question of if or when one of these will get before the Supreme Court?

  • Mary Ziegler:

    I think it's a question of when the Supreme Court will reconsider Roe v. Wade.

    I don't think it's anything like a sure thing that the Supreme Court will ever consider one of these extreme laws. I think it's telling that you had figures like Pat Robertson coming out and saying, this is too far, and the Supreme Court won't like this kind of law.

    We know that Chief Justice Roberts is deeply concerned about the reputation of the court and about optics, about keeping the court above the political fray, or at least appearing to do so. We know that Brett Kavanaugh, during his confirmation hearings, talked a lot about respect for precedent.

    And it would require the court to really undo decades of precedent in one decision, with really very little advanced warning that that was going to happen. And that seems to be kind of a long shot.

    I think we're much more likely to see the court unravel Roe more slowly by upholding kind of a series of more incremental restrictions and offering some hints that Roe is not long for this world, and then getting rid of Roe entirely several years down the road, so more kind of like a death of 1,000 cuts than something sudden, which is what Alabama lawmakers seem to have in mind.

  • Amna Nawaz:

    And is there a sense of a timeline of when that could happen?

  • Mary Ziegler:

    We don't really know. I mean, it could start soon, or the court might want to stay out of abortion altogether for a few years.

    I mean, I would guess in the next five years, but it's really unpredictable. It's possible that the court could even uphold a law like the Alabama law. I wouldn't put money on it, but it's not out of the question.

    I think we're looking more, though, at a series of judicial decisions over a number of years, not something that would happen in the next 12 months.

  • Amna Nawaz:

    Mary Ziegler of Florida State University, Anne Galloway from Vermont's VTDigger, and Brian Lyman from Alabama's Montgomery Advertiser, thanks to all of you for being here.

  • Mary Ziegler:

    Thanks for having us.

  • Anne Galloway:

    Thank you.

  • Brian Lyman:

    Thank you.

  • Amna Nawaz:

    And an update on this story.

    Just moments ago, Alabama Governor Kay Ivey signed that abortion bill into law.

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