Senator Rodger Smitherman (D) speaks during a state Senate vote on the strictest anti-abortion bill in the United States at the Alabama Legislature in Montgomery, Alabama, U.S. May 14, 2019.
Chris Aluka Berry | Reuters
Alabama lawmakers late Tuesday passed the strictest abortion ban in the country. The move is expected to test whether the Supreme Court’s longstanding prohibition on such measures can withstand the addition of President Donald Trump’s two appointees, Justices Neil Gorsuch and Brett Kavanaugh.
The law, which now requires the signature of Republican Gov. Kay Ivey, makes it a felony for a doctor to perform an abortion at any point during a pregnancy, punishable by up to 99 years in prison. Attempting to perform an abortion can lead to a sentence of 10 years.
The legislation provides an exception for cases in which the procedure is necessary to prevent a serious health risk, but not in cases of rape or incest. People who receive abortions do not face punishment under the law. The measure was approved by the Alabama state Senate 25-6 on Tuesday after passing in the lower chamber last month.
“This bill is about challenging Roe v. Wade and protecting the lives of the unborn, because an unborn baby is a person who deserves love and protection,” said Rep. Terri Collins, who sponsored the legislation in Alabama’s House of Representatives, according to the Alabama Political Reporter.
It is not immediately clear whether Ivey will sign the legislation. A spokesperson for the governor told The Associated Press on Tuesday that Ivey plans to “withhold comment until she has had a chance to thoroughly review the final version of the bill that passed.”
Fighting the bill
Groups that defend abortion rights, including the American Civil Liberties Union and Planned Parenthood, have already pledged to fight the bill in court.
Those who drafted the law expected those challenges, and welcomed them, hoping that the case eventually winds up before the nation’s top court. It’s a strategy that has been adopted by a number of other state legislatures.
But the Alabama legislation marks the latest, and most brazen, effort by a conservative state to goad the Supreme Court into reviewing Roe v. Wade, the landmark 1973 case that held that the constitutional right to privacy applied to abortion access.
Many of those efforts have culminated in so-called heartbeat bills that ban abortions after six weeks, a time frame so restrictive that critics say it effectively bans abortions for most people seeking them. This year, Georgia, Kentucky, Mississippi and Ohio have passed such legislation, though none of the laws has taken effect yet.
The flurry is directly related to the addition of Trump’s two appointees. During the presidential election, Trump pledged to nominate justices who would “automatically” overturn Roe.
“Now is our time,” Michael Gonidakis, president of Ohio Right to Life in Columbus, told The New York Times for an article published in April. “This is the best court we’ve had in my lifetime, in my parents’ lifetime.”
Virtually every Democrat running for president condemned Alabama’s move, including former Vice President Joe Biden, the front-runner, who wrote in a post on Twitter that “Roe v Wade is settled law and should not be overturned.”
While both Kavanaugh and Gorsuch said during their nomination hearings before the Senate that Roe is settled precedent, both their critics and defenders questioned whether those pledges would translate into votes to protect the precedent once confirmed.
Fending off challenges
Abortion rights groups have vowed to fend off the challenges.
After Georgia Gov. Brian Kemp signed his state’s six-week abortion ban earlier this month, the chief counsel for the Center for Reproductive Rights, Elisabeth Smith, said that Georgia’s “intentions are clear: they want this law to make it up to the Supreme Court to challenge Roe v. Wade. They see new justices on the court and think it’s possible.”
“But the composition of the court has changed many times in the 46 years since Roe, and the Supreme Court has continuously reaffirmed that women have the right to decide to have an abortion,” Smith said.
The Supreme Court, which will issue the last of its decisions for the current term in June, is not expected to take up any challenge to the slew of new abortion restrictions until at least next year.
Neither Kavanaugh nor Gorsuch has ruled on a significant abortion case since joining the nation’s top court.
In February, both men were in the minority of a 5-4 decision that blocked a Louisiana abortion law from going into effect, though Kavanaugh penned a dissent that suggested his vote was based on narrow, technical grounds. Chief Justice John Roberts joined the court’s liberals.
In December, Kavanaugh sided with Roberts and the court’s liberals in an order, on its face not related to abortion, that dealt a setback to states seeking to defund Planned Parenthood.