Thursday, May 16, 2019
States Quickly Passing Restrictive Abortion Bans to Challenge Supreme Court Precedent Recognizing Women's Right of Bodily Autonomy
Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.
It's considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman's life is threatened or there is a lethal fetal anomaly.
Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.
The law does not take effect for several months.
Late Tuesday night, Alabama legislators passed a bill that would outlaw abortion at any stage in a woman’s pregnancy. They’re in good company: Earlier in May, Georgia Governor Brian Kemp signed a law making abortion illegal after a fetal heartbeat can be detected, or roughly six weeks after conception. Ohio, Mississippi, and Kentucky have all passed similar bills this year.
The state legislators who are passing these bills know they will be challenged in court. They also know they will probably lose. But their sights appear to be set higher than their state jurisdictions: With a solidly conservative majority on the Supreme Court, anti-abortion advocates are eager to seed the challenge that could one day take down Roe v. Wade, the 1973 opinion that legalized abortion up to the point of fetal viability. At the very least, they hope the Supreme Court will undercut Roe and subsequent decisions that reaffirmed abortion rights, the idea being that each legal challenge makes it a little harder to obtain an abortion in the United States.
Georgia, Kentucky, Mississippi and Ohio stopped short of outright bans, instead passing so-called heartbeat bills that effectively prohibit abortions after six weeks of pregnancy, when doctors can usually start detecting a fetal heartbeat. Utah and Arkansas voted to limit the procedure to the middle of the second trimester.
Most other states follow the standard set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.
The latest bans are not yet in effect (Kentucky’s was blocked by a judge), and all are expected to face lengthy court battles — indeed, their proponents are hoping they will reach the Supreme Court.
A new law in Alabama bans abortion from conception, except when necessary to prevent a serious health risk to the mother. and even then, access to the procedure would be hard to come by.
The legislation joins a string of measures in pro-life states that are clearly unconstitutional under Roe v. Wade. But the bills' backers are betting the U.S. Supreme Court's new five-justice conservative majority is ready to reverse the 46-year-old precedent.
Under Supreme Court precedent, states can't unduly burden—let alone ban—abortion before fetal viability (generally at 23 or 24 weeks of pregnancy.)
In Ohio, the ACLU and Planned Parenthood have filed suit to block that state's six-week abortion ban, which is set to go into effect in July.
But with Georgia's governor signing into law another six-week ban last week, abortion opponents are confident they have the high court on their side.
The court last affirmed abortion rights in 2016. But Justice Brett Kavanaugh, a conservative, replaced swing Justice Anthony Kennedy, which changed the calculus, according to Professor Caroline Mala Corbin of the University of Miami School of Law.
"The newly configured Supreme Court has given hope to many abortion opponents that they will finally have their way and the right to abortion will be eliminated as a constitutional right," Corbin told FOX 5 NY.