On Wednesday, Alabama Gov. Kay Ivey signed what many consider the nation’s strictest abortion law, which makes any physician performing an abortion guilty of a felony in almost all cases.
The exception would be when a pregnancy poses “a serious health risk to the unborn child’s mother.”
As expected, the national media have been critical of the Alabama law and have given little attention to the Alabama legislature’s goal, which is to challenge the landmark 1973 Roe v. Wade Supreme Court decision by establishing personhood for a baby inside the womb.
With personhood, the Constitution affords certain rights and protections, as explained by the bill’s sponsor in the Alabama Senate, Sen. Clyde Chambliss (R-Prattville).
“The way that this bill is drafted – it goes to ask the question of personhood,” Chambliss said during an interview Thursday on Huntsville radio’s WVNN. “The 14th Amendment gives people, a person the right to life, liberty and property. But it doesn’t say when a person becomes a person. Obviously, if somebody is walking around, we know that’s a person. In the womb, do we know if that is a person or not? Unborn babies can hear, they can feel – at what point can they hear and feel and think and feel pain.”
“And so, we need some guidance,” he continued. “We need some guidance. We need some guidance from the Supreme Court. So this bill has been drafted so that it goes directly to that question. It goes to the Supreme Court, hopefully. And we do expect it to be ruled unconstitutional at the lower court. It has to be. It has no choice because they have to follow Supreme Court precedent. That’s no surprise. We know that’s going to happen. We know that will be found unconstitutional on appeal, but hopefully, we’ll have the Supreme Court to take up the matter. And we hope and we feel that the Supreme Court will rule this law constitutional because it gets to that personhood issue that is so, so important.”
With that in mind, there are still questions regarding the politics and the legal reasoning behind the law.
1 – Why was this passed now and not when the makeup of the Supreme Court actually shifts in a direction to overturn Roe or until after the 2020 election?
This is the first year of a quadrennium, which is the first year of a term for members of the Alabama legislature. Traditionally, big-ticket items are passed in the first year’s legislative session, which began in March.
Given the expected controversy of the issue, the leadership in the Republican-led Alabama legislature perhaps saw this as the best time politically to move on the bill, given voters will have moved on by the 2022 legislative and gubernatorial elections.
The next best possibility for Alabama’s legislature to pass such a law might not have come until 2023. Given that these cases take years to work themselves through the federal court system, the Supreme Court might not get to it until 2025 or 2026. By then, the Supreme Court might not be as favorable for conservatives.
2 – The lack of an exception in the cases of rape and incest seems extreme. Why wasn’t that included?
The purpose of the law is to challenge the Supreme Court’s 1973’s Roe v. Wade decision by establishing a baby in the womb as a person. If exceptions are added for cases of rape and incest, then it contradicts the argument, according to the bill’s sponsor, Rep. Terri Collins (R-Decatur).
“The reasoning is the same reasoning, Roe v. Wade was decided that the baby in the womb was not a person,” Collins said at an event in Huntsville, AL before the bill’s passage. “So this bill bases its reasoning that the baby in the womb is a person. And we based it on the fact that in Alabama law, we currently consider the baby in the womb a person. If you were a drunk driver and you killed a pregnant woman, you have a double homicide on your hands. We voted as a state to be a pro-life state.”
Adding the exception for rape and incest could negate the argument that the baby in the womb is a person, she argued.
“The biggest thing to attack it with is to say, ‘What, you’re not going to include rape and incest?’” Collins said. “Well, how do we say, ‘The baby inside is a person unless they’re conceived in rape or incest’? If that amendment was to get on the bill, then I’ll kill the bill because it won’t go to the Supreme Court. It will contradict itself.
3 – Gov. Ivey said in her statement that this might not even be enforceable. So why was it passed?
The intention of the bill is not meant to be enforceable according to its proponents, but a legal challenge to Roe v. Wade and force the court to rule definitively on the personhood status of the baby in the womb.
4 – Would Alabama women be arrested under this law if they procured an abortion in another state?
No. As written, the law makes the activities of abortion physician illegal. The state of Alabama would not have jurisdiction of what takes places in other states.
5 – Does this bill imprison women who induced abortion on themselves?
No. Its sole focus is on the provider.
6 – Does it make it a felony for women, or just the abortion provider?
Just the provider.
7 – Would this make it illegal for a person to prescribe the Morning-After pill since one would only take that if they thought they were pregnant, and this bill makes abortion illegal from the moment a woman suspects she’s pregnant?
The Morning-After pill, as prescribed, is legally considered birth control and not a form of abortion.
“The decision was based on someone in utero, someone pregnant so we don’t get into conception. We don’t get into birth control,” Collins explained. “We don’t get into the morning-after pill, but in utero, which is the language they used that when a woman is pregnant. This bill criminalizes abortion through the doctor. And not the woman, but the doctor.”
8 – What makes this bill different from so-called “heartbeat” bills passed in other states, like Georgia?
Georgia’s law bans abortions after a physician is able to detect “a fetal heartbeat in the womb.” That can usually be at six weeks, which is before many women realize they are pregnant. In Alabama’s law, doctors cannot perform an abortion once a fetus is “in utero.”
9 – Does this bill make it harder for pro-lifers to win in 2020?
That perhaps depends on the precinct. The block of voters many political watchers fear will be turned off by the Alabama law are suburban women.
However, given the controversial actions of the New York State legislature, and the statement of Gov. Ralph Northam (D-VA), the issue has made somewhat of a comeback.
Although Democrats may attempt to weaponize the state of Alabama’s actions politically, it will force the future Democratic presidential nominee to answer to questions about their party’s view on the issue.
Abortion is a get-out-the-vote hot-button issue for both parties, and one would have to assume it would have been at the forefront with or without the actions of the Alabama legislature.
Follow Jeff Poor on Twitter @jeff_poor