The abortion ban approved Tuesday night by the Alabama Senate and signed into law Wednesday by Republican Governor Kay Ivey is more than just the most restrictive legislation passed by any state in the 46 years since the Supreme Court legalized abortion nationwide.
It is also the opening of a new front in the abortion wars, and the clearest statement yet that the tsunami of state abortion restrictions introduced this year is less about actually enforcing those particular restrictions than about giving the justices an opportunity to reverse the 1973 ruling.
“It’s like a racehorse in the Kentucky Derby — blinders on all side,” said Democratic Sen. Rodger Smitherman shortly after he voted against the bill, which would ban all abortions for any reason and carry prison sentences of 99 years to life for doctors who perform them. “They just keep on this Roe v. Wade thing.”
In the hours before last night’s 25-6 vote, a proposed amendment that would have allowed abortion in the case of rape or incest was voted down, 21-11, with four Republicans joining the few Democrats in the body. The bill’s sponsor, Rep. Terri Collins, explained that while she is sympathetic to rape and incest survivors, many of whom filled the gallery, “if that amendment was to get on the bill then … it won’t go to the Supreme Court,” adding that there would be time for such amendments after the court returns the right to decide abortion law to the states.
In other words, it was a bill crafted not to govern, but to provoke a case that could reach the high court, the latest of a series of state laws with that purpose, the culmination of a strategy that has been employed since shortly after Roe was decided, but which has gained new impetus with a conservative majority on the court.
The result is a multi-tiered conversation — one about abortion rights, one about abortion politics and one about legal strategy.
In the first, pro-choice groups cite polls that consistently show public support for Roe and opposition to the government involving itself in women’s medical decisions; anti-abortion groups portray abortion as murder, not medical care.
In the second, both groups fundraise and create petitions — to unseat legislators who don’t vote their way, to persuade governors to sign or veto legislation, and, in the case of pro-choice coalitions, to urge blue state legislators to strengthen abortion rights as red states weaken them.
And on the third level, both groups try to predict which cases the newly constituted court might accept and how they might rule. It is the newest territory in this evolving landscape, where strategy is still being debated.
One school of thought believes the court is most likely to approve incremental changes to Roe — particularly Chief Justice John Roberts, who is thought to be reluctant to reverse long-standing precedents. The approach has been effective over the decades, as access to abortion has been whittled down by state laws requiring counseling, waiting periods and parental consent. In many states — states like Alabama, where only three abortion clinics remain of the 13 that existed 20 years ago —this effectively made abortion unavailable to many women.
In the months since Brett Kavanaugh joined the court and tipped the ideological balance, there has been a jump in the number of such incremental bans. But there has also been a new tack: bills that would outlaw abortion completely. Six states have passed laws that would ban abortion after six weeks, which pro-choice advocates say is effectively a total ban because most women do not know they are pregnant until about that time. And now Alabama has passed a total and unconditional ban with no exceptions, the clearest possible challenge to Roe.
“What we’re seeing now is much more of a full-frontal attack” on abortion rights and access compared with recent years, Elizabeth Nash, a senior state issues manager at the Guttmacher Institute told Yahoo News. “We are seeing a real shift away from the incremental strategy that dominated abortion laws for decades and now we’re seeing the goal of banning abortion outright.”
Not all anti-abortion groups agree with the tactic, even if they are in sympathy with the broad aims. Conservative televangelist Pat Robertson said: “I think Alabama has gone too far. It’s an extreme law, and they want to challenge Roe v. Wade, but my humble view is this is not the case we want to bring to the Supreme Court because this one will lose.”
But those who crafted it predict that their overarching legislations will be more likely to be heard by the court.
“The back door hasn’t worked, I’ll just tell you,” said Rep. Rich Wingo, a Republican member of the Alabama House, who helped craft the ban, which compares abortion to Nazi concentration camps, Russian gulags, and genocides in Rwanda and Cambodia. Incremental methods to eradicate abortion “haven’t worked to date,” he said. “This is a yes or no, up or down.”
Alabama’s governor also welcomed the court fight.
“No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions,” Ivey wrote in a statement Wednesday. “Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.”
On a press call this morning with reporters, Planned Parenthood officials addressed questions of whether pro-choice groups are playing into the hands of anti-abortion groups by challenging all these laws. If the goal is to appeal a bill all the way to the Supreme Court, then perhaps not challenging them would stymie the strategy?
“We aren’t playing into their hands. We’re not playing games, they are,” said Staci Fox, president of Planned Parenthood Southeast Advocates. “They are playing political games with women’s lives. They know and say publicly that these laws are unconstitutional and they don’t care.”
Both sides agree that they have no idea which of the many bills racing toward the Supreme Court will arrive first.
In fact, there have been additions to the pro-choice playbook in the past two years, as both sides adapt to the new field. There have been successful campaigns to increase abortion protections in more progressive states, such as the New York state Legislature, now controlled in both houses by Democrats, which voted in January to declare abortion a “fundamental right,” and Vermont is poised to do the same.
And there are some more creative pushbacks as well. In Alabama, Democratic Sen. Vivian Figures attempted to add amendments that would, among other things, make vasectomies a felony and require lawmakers who vote for the ban to personally pay the legal fees to defend it in court.
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