Alabama Gov. Kay Ivey (R) approved a near-total abortion ban on Wednesday aimed at the United States Supreme Court and designed to overturn Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion under the U.S. Constitution.
Roe v. Wade makes it clear that women have a right to abortion guaranteed by the 14th Amendment, but the Alabama measure almost universally prohibits abortions. Doctors who perform an abortion are to be subject to at least 10 and as many as 99 years in prison. The only exception in the legislation is if a pregnancy puts a woman’s life at risk.
The law is set to become effective in six months.
The legislation comes after Brett Kavanaugh’s appointment to the Supreme Court last year emboldened anti-abortion activists who believe the conservative jurist may finally provide a fifth vote on the court to overturn Roe. Several other states have recently moved to outlaw abortion around six weeks into a pregnancy, leaving women with little time to know they are pregnant, let alone decide to get an abortion.
The American Civil Liberties Union and other groups will quickly challenge the law, said Alexa Kolbi-Molinas, staff attorney for the ACLU Reproductive Freedom Project.
Such a suit would have to go to a federal district court and then the U.S. Court of Appeals for the 11th Circuit before reaching the Supreme Court.
Lower courts are likely to quickly block the measure because it is so clearly at odds with Supreme Court precedent on abortion, said Carolyn Shapiro, an associate professor at the Chicago-Kent School of Law who previously served as the solicitor general of Illinois. The case would likely take a few years to get to the U.S. Supreme Court, said Kolbi-Molinas.
The legislation’s supporters don’t even expect lower courts to uphold it, The New York Times reported, but the goal is to get a lawsuit to the Supreme Court where five justices might be willing to uphold the measure.
“It’s about trying to get the Supreme Court to reverse Roe ... The more extreme the ban, and this one is pretty darn extreme, the more cued up it is for the court to actually do that,” Shapiro said. “They want to take something to the court that clearly will answer the question of whether Roe is the law of the land, remains the law of the land.”
But Laurence Tribe, a law professor at Harvard, doubts the Supreme Court will even take the case if the 11th Circuit upholds a ruling from the district court blocking the law.
“This clumsy gambit will be a total flop,” he wrote in an email.
Courts generally do not frequently overrule themselves, but it does happen. A key part of the American legal system is a legal principle called stare decisis ― the notion that courts should rule in a way that is consistent with prior rulings on an issue. The principle provides critical consistency to the rule of law across generations.
It’s about trying to get the Supreme Court to reverse Roe.Carolyn Shapiro, assistant professor Chicago-Kent School of Law
But the U.S. Supreme Court has repeatedly noted that “stare decisis is not an inexorable command” and has shown a willingness to overrule a prior case when the court’s makeup changes or a majority of justices feel the original ruling was incorrect. The Supreme Court overruled a decades-old precent on state sovereignty this week, prompting Justice Stephen Breyer to publicly wonder which precedents the court would overrule next.
Anti-abortion advocates are hoping Kavanaugh and a majority of justices on the court will be willing to do this with the Alabama case.
Shapiro said it is not unusual for lawmakers to pass laws like the one in Alabama to test the Supreme Court.
“I’m pro-choice. I’m pro-autonomy. But I don’t think it’s an illegitimate thing for legislatures to pass laws designed to challenge constitutional precedent that they think are wrong,” she said.
“That’s how precedents change,” said Leah Litman, an assistant professor at University of California, Irvine law school. “In order to overturn precedent, they have to have a set of facts that implicates that question. States try to do things that are unconstitutional all the time.”
“Usually no one thinks anything of it, because they don’t think the court is gonna be overturning precedent willy-nilly,” she continued. “Clearly, these states don’t think that’s the case for Roe.”
Roe has set one of the most controversial precedents over the last four decades, and the Supreme Court has had several chances to revisit it. In a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court upheld Roe’s central protection of a right to abortion but gave states more leeway than Roe did to regulate them. The case also directed courts to use a weaker standard when evaluating abortion restrictions.
In 2007, the Supreme Court upheld a ban on a specific type of abortion method seven years after striking down a similar law in Nebraska. In 2016, the Supreme Court struck down two parts of a Texas law that required abortion clinics to meet the standards of ambulatory surgical centers and doctors who performed abortions to have admitting privileges at a local hospital. Justice Anthony Kennedy, whom Kavanaugh has replaced, sided with the court’s more liberal justices in that case.
In February, Chief Justice John Roberts sided with the court’s liberal justices to stop a similar law in Louisiana from going into effect while the state appealed a lower court ruling.
There are also multiple pending cases the Supreme Court could act on before it even considers the Alabama law.
Although the sweeping nature of the Alabama law is getting widespread attention, Kolbi-Molinas and Litman said the court could essentially gut Roe before it even hears the case. If it were to reverse its 2016 ruling and uphold the Louisiana law restricting the kinds of doctors who can perform abortions, it would effectively outlaw the procedure while Roe remains on the books.
“States don’t have to ban abortion, pass abortion bans, and the Supreme Court doesn’t have to overturn Roe to basically render the right pretty much meaningless for people in this country,” she said.