The most restrictive anti-abortion bill in the nation has been signed into law in Alabama, but stands little chance of overturning a person’s constitutional right to abortion established by Roe v. Wade, say two legal scholars at Northeastern University.
The Alabama law, which is set to go into effect in six months, would make abortion and attempted abortion a felony, except in cases where “abortion is necessary in order to prevent a serious health risk to the unborn child’s mother.” Doctors who perform abortions on people who are more than six weeks pregnant could be sentenced to up to 99 years in prison, and the pregnant person herself could be charged with homicide. There are no exceptions for abortions in cases of rape or incest.
But the law—and others like it in Georgia and Missouri—is so punitive that it’ll almost certainly be overturned by federal judges, says Daniel Urman, who teaches a Northeastern course on Constitutional law and the Supreme Court.
“[The laws are] blatant violations of the standard set in Planned Parenthood of Southeastern Pennsylvania v. Casey,” Urman says, referring to a 1992 Supreme Court case that allowed states to regulate abortions as long as that regulation doesn’t place an “undue burden” on the person getting the procedure.
“It’s an undue burden to put a doctor in jail, and to force a woman to make a decision [whether to have an abortion] so early, and not to have exceptions for rape or incest,” Urman says.
Urman and Libby Adler, a professor of law and women’s, gender, and sexuality studies at Northeastern, say that lawmakers took a gamble and passed legislation that was almost certain to be appealed again and again until it wound up before the Supreme Court.
According to The New York Times, an Alabama legislator who sponsored the legislation has said that the bill “is about challenging Roe v. Wade.”
The legislators who created and passed the law looked at the Supreme Court and saw five justices who are generally more conservative, and four justices who are generally more liberal. Doing some “Supreme Court arithmetic,” Urman says, “anti-abortion activists saw five votes from justices who would want to overturn Roe v. Wade.”
Urman and Adler agree that an appellate judge will overturn the Alabama abortion law, and that anti-abortion advocates will appeal again to take the case to the U.S. Supreme Court in an attempt to overturn the constitutional protection of Roe v. Wade.
But, they say, it’s a gamble that likely won’t pay off. They think it’s unlikely the Supreme Court will even hear the case, because there are one or two conservative justices who have shown themselves to be reticent to toss out precedent wholesale.
“This legislation is an overreach,” Adler says of the Alabama law, “and I think the pro-life forces who wrote it are going to regret having done something so drastic.”
The five conservative votes upon which anti-abortion activists are counting—Chief Justice John Roberts and Justices Brett Kavanaugh, Samuel A. Alito, Jr., Neil Gorsuch, and Clarence Thomas—might not shake out that way.
“It’s more complicated than just pro-choice and pro-life,” Adler says.
Chief among them is Roberts, Urman said.
“John Roberts is an institutionalist,” he said. “He’s shown that he wants the Supreme Court to look different than our political system. I don’t see Chief Justice Roberts providing a fifth vote to immediately overturn Roe v. Wade.”