Last week, Alabama Governor Kay Ivey signed into law the most restrictive abortion ban in recent US history.
The bill, called the Alabama Human Life Protection Act, enacts a blanket ban on abortions after six weeks of pregnancy – a deadline which can pass before women even become aware that they are pregnant. The law makes the performance or attempted performance of an abortion after this deadline a felony offence carrying a prison sentence of 10 to 99 years.
Unlike even the strictest abortion laws in the US, the Alabama bill does not allow abortions to be performed in cases of rape or incest.
In fact, the only circumstances in which the law allows abortions to be performed are when the foetus develops a “lethal anomaly” that will lead to stillbirth or death shortly after birth, or when there is a “serious health risk” to the mother.
Any health risk to the mother must be physical in order to qualify for the exception: “emotional conditions” and “mental illnesses” are expressly excluded.
Taken together, the early cut-off for legal abortions and the alarmingly restrictive exception framework means that this law is, in effect, a near-complete criminalisation of abortion in Alabama. Similar laws have been passed in other states, too, including Georgia and Missouri.
As New York Representative Alexandra Ocasio-Cortez said, what we’re seeing is a “backdoor ban”.
Legal experts and activists say the law is unconstitutional. The Governor herself knows this law could turn out to be unenforceable. The lawmakers who passed it know it too.
Anti-abortion activists who support the law don’t mind that it’s likely to be thrown out. In fact, they’re relying on it. Here’s why.
Since 1973, abortion rights across all 50 states have been protected by the Supreme Court’s decision in Roe vs Wade. In that case, Jane Roe brought a class action lawsuit against a Texas law banning abortions in situations other than those which threaten the life of the mother.
The Court in Roe said that the Due Process clause in the 14 Amendment is, in effect, a protection for US citizens against state action. That includes, they said, an implied right to privacy against state interference.
So does a right to privacy include a right to abortion? Yes. The Court said that a woman’s rights to sexual privacy exist in the “penumbras” of the 14 Amendment. The word “penumbra” means “shadow”. The Court basically said: you may not be able to see this right in the text of the Constitution, but it’s there.
Since 1973, the penumbras of the 14 amendment have prevented states from improperly encroaching on a woman’s right to abortion.
So is the Alabama law unconstitutional? The short answer is, at the moment, yes. But that could change.
Conservative lawmakers in Alabama, Georgia and Missouri are intentionally passing laws that breach the Roe standard in order to invite the courts to throw out the long-held precedent and extinguish abortion rights across the country.
In the US system, Supreme Court decisions cannot be overridden by legislation, but they can be overridden but a later decision of the same court.
Since Trump took office, he has vowed to appoint judges to the courts who believe that Roe vs Wade should be overturned. Most significantly, Trump’s two Supreme Court appointees, Brett Kavaunagh and Neil Gorsuch, support overturning Roe.
That means that since 2016, the Supreme Court arithmetic on Roe has changed significantly. Previously, the court had only four sitting justices who oppose Roe. Now, it has five. Five is the magic number needed to change the law.
Conservative lawmakers know this, which is precisely why the Alabama, Georgia and Missouri laws were passed. Their proponents hope that these laws are challenged by pro-choice activists so they can fight the case all the way to the Supreme Court – where they will find themselves arguing in front of one of the most anti-choice benches in recent memory.
Activist groups like the ACLU and Planned Parenthood have already announced they will challenge the law in local courts.
If local courts throw the law out, which is likely, Alabama will appeal that decision at every level until it reaches the Supreme Court. Then the Supreme Court will decide whether to hear the appeal. If it does, we can be pretty sure the Court is preparing to overturn Roe.
While this court battle is going on, lawyers will ask the courts for a temporary injunction to stop the law coming into effect until its constitutionality has been determined, which could take years. This is what happened with Trump’s ill-fated “Muslim travel ban”.
This means that one of two things could happen next: either a court will grant an injunction and the right to abortion will be protected in Alabama unless and until the Supreme Court overturns Roe, or a court will refuse to grant an injunction and Alabamans may have to wait years for their rights to be restored.
So the question is not whether the Alabama ban is legal. In all likelihood, it isn’t. The question is whether conservative activists have chosen the right time to ask the US’s highest court to overturn one of the most important decisions it has ever made.
The stakes are impossibly high. While the laws’ puppet-masters wait for the confected legal fight to play out, the rights of Alabamans as currently protected by the Constitution could be stripped away. If the Trump-era court acts as we suspect it might and overturns Roe, the rights of all Americans could be.