reproductive rights

The Legal Fight Over Alabama’s Abortion Law Begins

Protesters in Montgomery oppose Alabama’s drastic new anti-abortion law. Photo: Julie Bennett/Getty Images

Just as the sponsors of Alabama’s total ban on abortion intended, it’s being immediately challenged in court by a host of reproductive rights groups who recognize it as the most blatantly unconstitutional state abortion law yet, as the Washington Post reports:

Planned Parenthood and the Alabama Women’s Center on Friday filed suit against the state of Alabama to block the most restrictive abortion law in the nation.

The near-total ban, signed by Alabama Gov. Kay Ivey on May 15, would criminalize abortion in almost all circumstances — including cases of rape and incest — and punish doctors with up to 99 years in prison. Without any challenges, the law was set to go into effect in as soon as six months.

The lawsuit, filed in United States District Court for the Middle District of Alabama, sets off a chain of events that both sides say is likely to lead to a years-long court battle. State lawmakers have said they passed the law specifically to bring the case in front of the U.S. Supreme Court, which they see as having the most antiabortion bench in decades. The bill was designed to challenge the 1973 Roe v. Wade decision by arguing that a fetus is a person and is therefore due full rights.

The odds of this law becoming the fulcrum for a long-feared conservative reversal or modification of Roe are limited, though. For one thing, a host of other states’ laws (particularly those from Indiana and Louisiana) are further down the pipeline to the Supreme Court. For another, the odds are relatively high that even if there are five votes on the Court to begin chipping away at reproductive rights (and there probably are), they will do so gradually, rather than embracing the drastic Alabama measure. Veteran anti-abortion and Republican Party activist James Bopp was emphatic in telling Politico that a quick leap back to 1972 was unlikely:

Pro-life lawyer James Bopp Jr. said he doesn’t think a case squarely aimed at eliminating Roe will ever be taken up by the high court. “I think it extremely unlikely the court will ever take a direct attack on the Roe case,” said Bopp. “The court just doesn’t operate that way … This idea that you’re going to force them to reconsider Roe v. Wade is just absurd …”

Bopp said he believes at least two justices, Roberts and Justice Brett Kavanaugh, have no desire to be involved in a frontal attack on Roe

The state laws SCOTUS could take up at any moment are less severe. A Louisiana law regulating abortion clinics could give the Court the opportunity to reverse the 2016 decision in Whole Women’s Health v. Hellerstedt that struck down efforts to hamstring providers through bogus health requirements. This ruling came down before the late Antonin Scalia was replaced by presumed abortion foe Neil Gorsuch, and before key reproductive rights swing vote Anthony Kennedy was succeeded by another jurist anti-abortion folk are relying on, Brett Kavanaugh. The Indiana law that’s been right on the brink of review by SCOTUS all this year seeks to ban abortions procured for particular disreputable-sounding reasons and prescribes burial of fetal remains.

Implementation of the Alabama law will certainly be stopped by lower-court federal judges as wildly unconstitutional under current precedents. But unless there’s some sort of quick effort to get to SCOTUS via emergency appeals or efforts to stay lower-court orders (which would require an intense determination on the Court to go large on a Roe reversal), it’s probably years away from Supreme Court review.

The other big timing consideration for SCOTUS is the proximity of a 2020 presidential election to any serious challenge to Roe. The chief justice in particular may be loath to do violence to reproductive rights just in time to help mobilize Democrats to eject Trump from office and prevent further counterrevolutionary measures on this and other constitutional issues. But then again, the Court can’t put off review of state abortion restrictions perpetually. Some action, if only oral arguments, is very likely in the October 2019 SCOTUS term.

The best way to think about it is that anti-abortion lawmakers in Republican-controlled states have given the Court’s conservative majority a smorgasbord of abortion restrictions to choose from in order to begin the assault on reproductive rights. From the point of view of anti-abortion ultras, Alabama’s law is the main course. But SCOTUS will probably choose an appetizer first that undermines but does not openly destroy the right to choose. That would come later, particularly if Donald Trump wins a second term.

The Legal Fight Over Alabama’s Abortion Law Begins