This past week, with the approval of the Alabama law which restricts abortion in the state, without any exceptions, the issue has exploded onto the national stage in the backdrop of the 2020 presidential election. Several other states recently passed similar laws, though less restrictive, with more planning to enact them. The goal, of course, is to push the issue back before the Supreme Court with the intention of overturning the landmark Roe v. Wade decision which legalized abortion in all 50 states.
It’s also worth noting that the Alabama law is also being framed by the bill’s authors as a direct response to laws passed in other states, such as the Reproductive Health Act in New York, which eased many restrictions on late-term abortions.
The Washington Examiner reports that Alabama lawmakers were intending to be provocative and aiming to start a national fight:
Sen. Josh Hawley, R-Mo., said that Alabama’s passage of the nation’s strictest anti-abortion bill is a reaction to late-term abortion legislation seen in states like New York, and exaggerated the extent of the proposed measures.
“It’s a direct response, Steve, to the extremism we’ve seen in places like New York and Virginia where you have Democrat politicians who are … passing laws that would allow a baby to be born and then killed after birth,” Hawley said in an interview with Fox News’ Steve Doocy on Thursday. “It’s just incredible the extremism that we’re seeing, and I think you’re seeing these states responding.”
Hawley’s comments come after Alabama Gov. Kay Ivey signed legislation that would outlaw almost all abortions. Under the law, doctors who perform abortions could face up to 99 years behind bars. It does not provide exemptions for cases of rape and incest, but does allow women whose health is jeopardized by the pregnancy to obtain an abortion.
Hawley is partially right, but he’s wrong about Virginia where a law similar to New York’s was proposed but never moved much past a committee in the House of Delegates.
The Examiner also notes that the New York law which Hawley referenced does loosen abortion restrictions, but also retains language which says late-term abortions can only be performed under certain conditions, such as dangers to the “patient’s life or health.”
Opponents of that language, which leaves an open-ended definition of “patient’s health,” in their view, say that an abortion could be performed in the last trimester if a woman claims a minor health issue such as fear of emotional distress over birth or fear of postpartum depression.
2020 Democrats Attack Alabama Law
As would be expected, all the 2020 Democratic candidates, in near unison, lashed out at the Alabama law, and others like it, that restricts access to abortion or attempts to overturn Roe v. Wade. USAToday reports:
Sen. Kirsten Gillibrand, D-N.Y., denounced the new Alabama law, saying that women deserve better.
“Women are half of this country, and they deserve a hell of a lot better than this,” she tweeted, linking to an article about Ivey signing the bill into law.
Sen. Kamala Harris, D-Calif., denounced the recent spate of restrictive bills as an attack on women’s health care, and said she “will not stand for it.”
“We must say loud and clear that women’s health care is under attack. We will not stand for it and we won’t go down without a fight. Too much is at stake,” she tweeted after Ivey signed the Alabama bill.
Sen. Amy Klobuchar, D-Minn., tweeted after the Alabama bill was passed Tuesday in the legislature that it’s “unconstitutional.”
“This bill in Alabama is effectively a ban on abortion. This is wrong. This is unconstitutional,” she tweeted.
Sen. Elizabeth Warren, D-Mass., is ready to fight.
The Massachusetts senator called Alabama’s law “dangerous and exceptionally cruel” and tweeted Wednesday evening that “Women across the country are watching and we will fight back.”
In a video posted on Twitter, the 2020 hopeful also called out Trump for “stacking the courts” with judges who are trying to ban abortion.
Former Vice President Joe Biden denounced the Alabama law, and other’s like it, saying they are unconstitutional.
“Republicans in AL, FL, GA, and OH are ushering in laws that clearly violate Roe v Wade and they should be declared unconstitutional. Roe v Wade is settled law and should not be overturned. This choice should remain between a woman and her doctor,” Biden tweeted.
Sen. Bernie Sanders, I-Vt., said Alabama’s law “disrespects the fundamental right a woman has to make decisions about her own body.”
“The governor of Alabama just signed a near-total ban on abortion. What an utter disgrace,” the senator tweeted after Ivey signed the bill into law.
South Bend, Ind., Mayor Pete Buttigieg denounced the law as “ignoring science” and “punishing women.”
“The Alabama legislature is ignoring science, criminalizing abortion, and punishing women. Instead, the government’s role should be to make sure all women have access to comprehensive affordable care, and that includes safe and legal abortion,” he tweeted.
Administration Defends New Abortion Laws
On the other end, as expected, the Trump administration has defended tightening abortion laws in several states, with Vice President Pence attacking states like New York where abortion restrictions are being loosened:
Speaking to reporters in Wisconsin, Mr. Pence praised states such as Alabama that are passing laws that ban abortion when a fetal heartbeat is present, saying such efforts “are embracing life.”
“But sadly, many states around the country are also adopting extreme pro-abortion legislation,” Mr. Pence said. “We recently saw the state New York embrace late-term abortion.”
New York enacted a law in January protecting the “fundamental right” to an abortion. In Massachusetts, the legislature is considering a bill that would remove the requirement for minors to get parental consent for an abortion.
Mr. Pence also said the U.S. Senate “refuses even to vote on a bill that would protect children that are born alive is deeply troubling to millions of Americans.”
Abortion may be the hottest lightning rod issue in American politics today as far as the culture war is concerned. Same-sex marriage used to carry a similar weight, though the Obergfell Supreme Court case in 2015 basically ended the issue by legalizing it in all 50 states.
Abortion remains a divisive topic in America, with roughly half the country, depending on the poll, considering themselves “pro-life,” and the other half considering themselves “pro-choice.”
Alabama Law May Fall Short
Despite being designed as an overt ban intended solely to evoke a Supreme Court battle, some analysts believe the Alabama law to be one that gets struck down in lower courts without ever making it to the high court.
Famed Harvard Law professor Alan Dershowitz, writing in Newsweek, explains that the Alabama law may die in a district court:
If the goal of this benighted legislation is to get the Supreme Court to reverse its decision in Roe v. Wade, it will likely backfire. Opponents of the law will challenge it in Federal District Court. A district court judge has no choice but to apply Roe v. Wade because that is the current law, and district court judges are bound by Supreme Court precedents. The same is true for the United States Court of Appeals. So the law will likely be struck down by the district court and that decision will be upheld by the court of appeals. The state of Alabama will then seek a writ of certiorari —a discretionary decision that requires four justices to agree to take the case. It is unlikely that four judges will vote to hear the case unless they are assured there is a fifth justice to constitute a majority.
Dershowitz also believes the law may hurt Republicans in 2020 since polls show most Americans don’t support an outright abortion ban:
From a political point of view, the Alabama statute is likely to hurt Republicans in the 2020 election. Most Americans oppose a total ban on all abortions and the criminalization of doctors who perform them. Threatening doctors and nurses with imprisonment for performing what they believe are medically warranted abortions will not garner votes among suburban voters who switched from Obama to Trump in 2016 and then switched to the Democrats in 2018. These swing voters are likely to be moderate when it comes to abortion, favoring neither advocates of no restrictions on choice (even on late-term abortions) nor those who advocate no choice at all.
Opponents of the Alabama law might take some comfort in Dershowitz’s analysis, but there are many other states with similar laws waiting to push their way to SCOTUS if the Alabama law falls short.
For the 2020 presidential election, this means an ongoing fight over this issue, with the sides pretty clearly defined as those wishing to overturn Roe v. Wade, returning abortion laws to the states, and those wishing to codify Roe v. Wade into law to take this issue out of the courts.
Also worth noting is that some religious conservatives, like Pat Robertson, for example, have said the Alabama law is too extreme, though they support the overall goal:
Pat Robertson, a televangelist and Christian fundamentalist who has long opposed abortion rights, says the new anti-abortion bill in Alabama is too “extreme.”
“I think Alabama has gone too far,” Robertson said Wednesday on his long-running TV program, “The 700 Club,” referring to the hefty prison sentence for anyone who performs an abortion — 99 years or life behind bars.
The Alabam law has served to galvanize all factions of the issue. Pro-lifers will be out in force, as well as pro-choice advocates on the other side. Hollywood is lining up against these new laws, threatening to boycott production in states which attempt to restrict abortion.
One way or another, this will eventually land at the Supreme Court, though the Justices don’t seem eager to have this matter re-litigated anytime soon.