Alabama’s Abortion Ban Was Meant to Overturn Roe. Can It?


May 24, 2019

When Alabama Gov. Kay Ivey signed legislation effectively eliminating legal abortions last week, abortion-rights groups swiftly mobilized. The ACLU called the law unconstitutional, and announced with Planned Parenthood that they planned to sue.

That is exactly what the law’s advocates were counting on.

“The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur,” Ivey said in a statement.

The Alabama law signals a tactical shift. After years of slowly trying to constrict access, abortion opponents — emboldened by a conservative majority Supreme Court — are making their move.

“My goal with this bill, and I think all of our goal, is to have Roe v. Wade turned over,” said state Rep. Terri Collins, a Republican who sponsored the bill in the Alabama House of Representatives.

Until recently, some abortion opponents thought overturning the landmark decision on abortion would be impossible. In 1992, the Supreme Court further safeguarded the right to terminate a pregnancy in its Planned Parenthood v. Casey decision, but left room for abortion to be regulated on the state level. After Casey, lawmakers and activists tried a different approach.

“We would go from writing bills that would seek to reverse Roe to writing bills that would regulate the abortion procedure process to reduce the number of abortions,” Eric Johnston, president of the Alabama Pro-Life Coalition, who helped author the new law, told The New York Times.

It was part of a process of chipping away at abortion rights, so that even with Roe still on the books, access would be limited. But the Alabama ban is different.

“This is just a full-frontal attack,” said Maya Manian, a law professor at the University of San Francisco. “Since [Supreme Court Justice Brett] Kavanaugh’s appointment, and now with so many Trump appointees on the federal bench, the sense is, ‘We’ve got the votes on the court now to overturn Roe or to gut it, and so we need to put these cases in the pipeline.’”

The Alabama law, which outlaws nearly all abortions and designates fetuses as people, is a direct contradiction to the constitutional rights granted under Roe. That’s by design — by passing something that is clearly unconstitutional, it opens the door for a challenge.

“The idea was to do a bill to make abortion a crime,” Johnston said. “I think having a pure direct approach, saying the unborn child is a person, is the only way you can really attack Roe.”

But some experts believe that the Alabama ban isn’t a safe bet for overturning Roe. The law leaves no room for incremental changes, and would force judges to make the highly political move of overturning Roe outright. Clarke Forsythe, senior counsel for Americans United for Life, said that if the law makes its way to the Supreme Court, justices will likely decide not to take up the case — at least for now.

“I doubt whether the justices want to be characterized [by the media] as approving the Alabama law when the real question is, is it consistent with the Constitution?” he said. “To avoid that, it would be easier for the court to re-examine Roe in a case with say, a 20-week limit or an informed consent law or an ultrasound law.”

Mary Ziegler, a professor at the Florida State University College of Law, agrees that the court would be more likely to move gradually in confronting Roe. If the decision were overturned, Ziegler said it would be a years-long process that mirrored abortion opponents’ longtime strategy of incrementalism.

“I think that would be the logical strategy — to use the tools the court has already given you to chip away at Roe and ask the court for only so much at a time, because the justices are very particular and very powerful people, and they don’t like being told what to do,” she said.

Experts anticipate the law will likely be blocked from taking effect and tied up in courts — perhaps as long as two years. But even if the law doesn’t reach the Supreme Court, recent research shows access to the procedure in Alabama has already been curtailed by incremental restrictions.

“For many women, especially poor women and disproportionally women of color, they’re already in a post-Roe world, there’s such little access to abortion care,” Manian said.

Catherine Trautwein, Tow Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowship

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