The governor of Alabama has signed a bill designed to lead to a new Supreme Court decision on Roe v. Wade, the landmark 1973 ruling that hamstrung states’ ability to restrict abortion.
The bill passed the state Senate on May 14 and was signed into law one day later by Republican Gov. Kay Ivey. It outlaws all abortions except in cases when the pregnancy puts the prospective mother’s life is at risk. While it doesn’t penalize a woman for undergoing an abortion, it makes it a felony to perform it, imposing penalties of 10 to 99 years in prison.
Alabama Democrats, and even some Republicans, criticized the bill for being too strict. But state Rep. Terri Collins, the Republican who introduced the bill, suggested it was intentionally uncompromising so as to increase the chance that it would result in a challenge to Roe v. Wade.
Collins and others are banking on pro-abortion entities to challenge the law in courts until the case is eventually picked up by the Supreme Court, where the law’s legal reasoning could strike at the core legal argument behind Roe v. Wade.
Roe v. Wade
The landmark 1973 decision established that it is part of a woman’s “right to privacy” to undergo abortion (pdf).
It ruled that states can’t regulate abortion in the first trimester, when the decision “must be left to the medical judgment of the pregnant woman’s attending physician.”
After the first trimester, states can only “regulate the abortion procedure in ways that are reasonably related to maternal health.”
States can only ban abortion after “viability,” meaning “potentially able to live outside the mother’s womb, albeit with artificial aid.” Even there, however, abortion must be allowed “where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Lower courts have subsequently ruled that even a risk to the mental health of the woman provides sufficient grounds for aborting a viable baby.
The Roe v. Wade decision was based on the case of Norma McCorvey, a 21-year-old drug addict living on the streets when she fell pregnant in 1969 with her third child. McCorvey had already given up one child for adoption.
At the time, McCorvey said she had been raped and was thus eligible for a legal abortion in Texas, but her request was refused because she couldn’t provide a police report proving that she had reported the rape. She was approached by Linda Coffee, a lawyer who wanted to challenge abortion restrictions and was looking for a pregnant woman she could introduce as the plaintiff for her case. McCorvey became that woman, entering the lawsuit anonymously as “Jane Roe.”
Together with another lawyer, Sarah Weddington, who ultimately argued the case before the Supreme Court, Coffee got the 7–2 decision saying that a woman has a right to abortion “free of interference by the state.”
Decades later, McCorvey admitted that she made up the rape story. She said that at the time, she didn’t want to go through the pain of giving up another baby for adoption, so she opted for abortion instead. But because the case took years to resolve, she ended up having the baby and putting it up for adoption. In her 2005 congressional testimony (pdf), she said, “I am glad today that that child is alive and that I did not elect to abort.”
McCorvey said that after spending years working at abortion clinics, she realized that abortion is wrong, not only because it kills the unborn, but because it traumatizes the women who undergo it.
“Participating in the murder of your own child will eat away at your conscience forever if you do not take steps to cleanse your conscience,” she said.
Nearly 56 million babies were aborted between 1973 and 2014, estimated from the yearly average based on data collected by the Guttmacher Institute.
McCorvey said she felt partially responsible by letting her story be used in the lawsuit.
The Alabama law takes aim at the core issue of whether an unborn child can be considered a person, as discussed in Roe v. Wade. In the Supreme Court’s 1973 decision, the justices acknowledged that “if this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
The court sided against Texas in this argument, stating that neither the Constitution, nor Texas’s own statutes, suggested that an unborn child should be treated as a “person.”
The Alabama law (pdf) defines a “person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”
The law appears designed to make the argument that, this time, the state is serious about treating the unborn as human beings who should be granted legal protection.
The lawmakers even rejected an amendment that would allow abortion in instances of rape and incest, in what seems to be an attempt not to undermine the personhood reasoning.
“I’ve answered many emails from people who have poured out their hearts with real stories,” Collins told AL.com. “My goal with this bill is not to hurt them in any way. My goal with this bill, and I think all of our goals, 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.”
Governors in Georgia, Kentucky, Mississippi, and Ohio have already signed into law bills that prohibit abortion later than about six weeks into pregnancy. Other Republican-led states have similar bills on the way. The Alabama one, however, appears to be the strictest.
The American Civil Liberties Union has pledged to challenge the Alabama law in court.
The current wave of anti-abortion legislation came after Trump appointed Justice Brett Kavanaugh to the Supreme Court in 2018, tilting the bench to five conservative-leaning justices versus four liberal-leaning ones. Trump already appointed Justice Neil Gorsuch in 2017.
It’s not clear whether the conservative-leaning justices will be persuaded to reconsider Roe v. Wade. If they strike it down, it’s not clear how they’d choose to redraw the lines on abortion restrictions.
Several states with Democrat-controlled legislatures have proceeded to preemptively relax their abortion restrictions. New York has passed a law allowing abortion up to 24 weeks of pregnancy for any reason. A similar bill was introduced in Virginia. A child born at 24 weeks already has more than a 50 percent chance of surviving if provided hospital care, a 2015 study found.
Deregulating abortion appears to clash with the beliefs of most Americans. The number of voluntarily reported abortions has been decreasing for years. And while about 1 in 9 abortions happens in the second trimester or later, according to the Guttmacher Institute, only 28 percent of Americans think abortion should generally be legal at that stage, according to Gallup.
If anything, Americans appear to have shifted away from supporting abortion. A Feb. 12–17 Marist Poll found that 47 percent of Americans identified as “pro-life,” meaning generally anti-abortion, while 47 percent identified as “pro-choice,” meaning generally pro-abortion. Just a month prior, the poll showed “pro-choice” identification prevailing 55 to 38 percent.