With a vote of 25-7 yesterday (May 14), the state Senate voted for HB 314, a measure that criminalizes the medical procedure from the moment of conception. There are no exemptions for rape or incest, and pregnant people can only get a legal abortion if their lives are seriously in danger. Under the measure, abortion providers could be punished with up to 99 years or life in prison.
The next step is for Governor Kay Ivey (R), a vocal opponent of abortion, to sign the bill into law. Should that happen, the American Civil Liberties Union (ACLU) has already said that it will file a lawsuit to block it.
BREAKING: Alabama’s legislature just passed a law that criminalizes doctors and makes abortion illegal. Abortion is NOT a crime — it’s a constitutional right. We will sue to stop this law from ever taking effect.— ACLU (@ACLU) May 15, 2019
The state Senate is comprised of 35 people. Its four female senators voted against the bill, and 25 Republican White men all cast their votes in favor of it. Three men abstained from voting. The Democratic minority leader, Bobby Singleton, who is Black, reportedly said after the vote, “You’ve got 27 men over on the other side ready to tell women what they can do with their bodies.”
Before the passage of this bill, Alabama—a state that is nearly 27 percent Black and the sixth poorest in the nation—already made it difficult to obtain an abortion. The BBC reports that there are only three medical centers that perform abortions in the entire state. In addition, there is a mandatory 48-hour waiting period—requiring two trips to the facility, a hardship for many because of distance, travel costs and time needed off work.
Dr. Yashica Robinson, a board member for Physicians for Reproductive Health and an ob/gyn in Huntsville, Alabama, said in an emailed statement: “As a physician serving the families of Alabama for 15 years, I know that abortion is health care … [the law] would have a disastrous effect on the health and well-being of Alabamians. Physicians will be unwilling to help patients in need, even when continuing pregnancy is detrimental to a patient’s health, or potentially fatal, out of fear of being scrutinized by the criminal justice system.”
While Kentucky, Ohio, Georgia and Mississippi have all passed bills prohibiting abortion after six weeks of pregnancy this year, the Alabama law is the most restrictive in the nation. Lawmakers in the state expect it to be legally challenged—and welcome landing before the Supreme Court of the United States as a direct challenge of Roe V. Wade, the 1973 landmark decision that made abortion legal nationwide.
Abortion opponents also see it as the best time to successfully overturn Roe because the Supreme Court has a conservative majority. Eric Johnston, founder of the Alabama Pro-Life Coalition, which co-drafted the bill, told NPR, “There are a lot of factors and the main one is two new judges [Neil Gorsuch and Brett Kavanaugh] that may give the ability to have Roe reviewed. And Justice Ginsburg—no one knows about her health.”
The doctrine that will likely determine if the Supreme Court overturns Roe is called stare decisis. The New York Times explains that it directs judges to uphold prior decisions even when they think they are wrong. In addition, reports the outlet:
Under the doctrine, justices shouldn’t overrule an earlier ruling unless several things are true: The decision is unworkable and has generated inconsistent results; it rests on outdated facts; and it represents an outdated mode of legal thinking. The court is also not supposed to overrule precedent where parties have relied on the decision to structure their lives.
Many legal scholars have identified stare decisis as a substantial obstacle to the overturning of Roe, since women have relied on Roe and it is not unworkable. Roe is also not an aberration—it is part of a long line of cases protecting rights that are not specifically enumerated in the Constitution. Nor does Roe rest on outdated facts; medical advances have made abortion safer, whereas maternal mortality rates in the United States have climbed.
Yet this week, on Monday (May 13), the Supreme Court overturned the 1979 decision in Nevada v. Hall, ignoring stare decisis and ruling that the prior decision was, reports The New York Times, “an ‘erroneous precedent’ that ‘is contrary to our constitutional design.’” In an op-ed, legal scholar Leah Litman wrote, “The guardrails of stare decisis have fallen. Roe v. Wade may very well be next.”