Alabama aims to challenge historical Roe v. Wade Supreme Court decision
Last month, Alabama passed one of the most restrictive abortion laws in U.S. history. The bill, HB 314, passed by the state’s Republican-led Senate by a margin of 25 to 6. It was signed by Republican Governor Kay Ivey on May 15, and requires pregnant people to carry fetuses to full term unless an abortion is necessary “to avoid a serious health risk to the unborn child’s mother,” the “unborn child has a lethal anomaly,” or the person has an ectopic pregnancy.
Under this law, abortion providers could face up to 99 years in prison.
The law further accompanies similar legislation in Louisiana, Mississippi, Ohio, Georgia, Missouri, Iowa, Kentucky, Arkansas, and Utah. Many of these are “heartbeat bills” that ban abortions once a fetal heartbeat can be detected, which can be as soon as six weeks into a pregnancy.
The goal of this type of legislation is to pressure the Supreme Court to overturn Roe v. Wade. This landmark case resulted in the 1973 decision that made it illegal for states to prohibit abortion before the third trimester.
To the Supreme Court
The Roe v. Wade case began when 21-year-old Norma McCorvey, known in the case as Jane Roe, wanted an abortion in Texas. Unfortunately for McCorvey, at the time, Texas prohibited abortion unless the mother’s life was at risk, or in cases of rape and incest.
Her attempts to get an illegal abortion were unsuccessful, and the law ultimately forced her to have the child, which she put up for adoption.
However, she contacted several lawyers who filed a lawsuit against her county’s district attorney, Henry Wade, on behalf of all women “who were or might become pregnant and want to consider all options.” A Texas district court deemed Texas’ law unconstitutional, but Wade said he’d continue to prosecute abortion providers.
Finally, the case reached the Supreme Court, and the justices voted 7-2 that the Texas statute prohibiting abortion was unconstitutional under the 14th Amendment.
The amendment states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The decision overturned anti-abortion laws, not only in Texas but also in many other states as well.
Importance/legal authority of Roe v. Wade
Roe v. Wade had several loopholes, however, that various court cases have filled in over the years, according to Nora Demleitner, a Roy L. Steinheimer Jr. professor of law at Washington and Lee University School of Law. For example, it wasn’t made clear in Roe v. Wade whether Medicaid would cover abortion, but the 1977 Hyde Amendment prohibited the use of federal funds for abortion coverage.
The most significant update to the country’s abortion law, however, came in the 1992 case Casey v. Planned Parenthood of Pennsylvania. This case established that states were allowed to regulate abortion up until the fetus was viable outside the womb, as opposed to before a set number of weeks.
“I’d argue that Roe is only the law on abortion today to the extent that it allows abortion,” said Demleitner. “Casey is the law on the details of regulation once viability occurs.”
The hope of Alabama’s anti-abortion legislators is that, since it violates Roe v. Wade, the case will be challenged in federal court, Demleitner explains. The federal district and appellate courts, the first ones it would go to, would likely declare the law unconstitutional since they have to follow the Supreme Court’s precedent. Then, Alabama would try to take it to the Supreme Court, which they’re hoping would reverse Roe v. Wade.
If Roe v. Wade were overturned, that wouldn’t prohibit abortion throughout the country, but it would allow states to prohibit it. If this happened, those who could afford it would likely travel to get abortions, and those who couldn’t — mostly poor and young women — would be forced to give birth.
“So, overturning Roe means effectively that the most disadvantaged group of women and girls will be impacted negatively,” said Demleitner. “The standard wisdom on why this is happening now is the change in the make-up of the U.S. Supreme Court.”
A shifting majority
The court acquired a conservative majority in October when Justice Brett Kavanaugh was sworn in. Conservative politicians had been plotting for decades to get more Republican justices on the court, most recently with Majority Leader Mitch McConnell stalling Obama’s nomination of the moderate judge, Merrick Garland.
Republicans’ increased effort to make getting an abortion more difficult in the U.S. may also be a reaction to high support for the right to choose among the younger generations. A 2018 Pew Research survey, for example, found that 63 percent of Americans ages 18 to 29 thought abortion should always or almost always be legal.
“There seems to be a curious sense of urgency about this issue,” said Demleitner. “This may be triggered by concern about a generational and demographic change that may imply this is perhaps the last time to make this effort.”
A Harvard CAPS/Harris poll found that 46 percent of Americans want the Supreme Court to uphold Roe v. Wade, 36 percent want them to modify it, and 18 percent want them to overturn it.
Alabama’s HB 314 isn’t set to go into effect for another six months. As the six-month mark approaches, groups against the law will likely continually ask the lower courts for temporary injunctions or restraining orders that stop it from being enacted. The American Civil Liberties Union (ACLU), ACLU of Alabama, and Planned Parenthood Federation of America have already filed a lawsuit challenging the law on behalf of the state’s abortion providers.
The suit requests a court order to ensure the law never goes into effect. The lower courts will most likely oblige with requests like these in order to follow the precedent of Roe v. Wade, so the law will likely either take a long time to go into effect or never go into effect, according to Demleitner.
Even though the law may not become enforceable, it may still affect people’s behavior.
“I suspect there are women in Alabama who either believe the law is already in effect or fear being turned away because of the law,” said Demleitner. “Therefore, I expect it will have a practical impact though no legal effect.” If nothing else, it may increase abortion stigma in the state and embolden anti-abortion activists, which could dissuade people from seeking abortions.
That being said, it’s unlikely that HB 314 and other laws like it will have their intended effect of overturning Roe v. Wade and making it legal for states to outlaw abortion. More likely, the Supreme Court will either refuse to take on the Alabama case, decide that the law is too extreme or vote to either uphold Roe v. Wade and Casey v. Planned Parenthood of Pennsylvania. (Or keep them with modifications).
“I will be surprised if the Supreme Court were to overturn a line of precedent that is now almost 50 years old,” she concluded. “There are many ways not to overrule Roe/Casey.”