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Friday, the Supreme Court of the United States issued its long-awaited ruling in Dobbs v. Jackson Women’s Health Organization. In the decision, the Court overturned two key precedents which had prohibited states from limiting abortion as each sees fit: Roe v. Wade and Planned Parenthood v. Casey.
These precedents have been rightfully abandoned. As the Court made clear, there is no right to abortion in the United States Constitution.
This does not mean that abortion is now illegal in America. The Supreme Court simply no longer considers it a right that cannot be touched by lawmakers.
Now the issue is in the hands of the various legislatures in our nation. At any point, the United States Congress could codify Roe as law and therefore force the legal status of abortion on all fifty states. On the other hand, Congress, if it desired, could ban abortion in all fifty states.
Neither of these options appear likely in today’s environment. Instead, the issue will sit at the feet of thousands of state legislators across the country.
In 2019, Alabama legislators approved, by wide margins in the Senate and almost unanimously in the House, the Human Life Protection Act. The law bans abortion in Alabama except in cases where it is necessary in order to save the life of the mother or to prevent a serious health risk to her. Now that Roe is overruled, the Alabama Attorney General’s Office will seek to dissolve the current court injunction against the Act. Once that is dissolved, the law will go into effect.
This is a strong pro-life law. It values the unborn child, allows exceptions for the life of the mother, and does not punish women for seeking abortion.
For pro-life Alabamians, the bottom line is this: Alabama does not need to change its abortion law.
Below, we demonstrate why this is the case.
Understanding Roe and Today's Ruling
Roe v. Wade (1973)
An important detail for Americans to remember is that Roe v. Wade, which has now been overturned, was never a law. Congress did not pass Roe. It was also not an executive action of the president. Instead, Roe v. Wade was a legal decision of the Supreme Court of the United States. Like any legal decision of the Court, it could be overruled at a later date. That is what has happened here.
Before the Supreme Court ruled in Roe v. Wade, abortion was illegal in most states, though some states allowed it in certain circumstances. In 1973, Roe v. Wade, a case challenging a Texas law banning most abortions, was decided. In the decision, the Court ruled that the right to privacy included a woman’s decision to continue or terminate her pregnancy without interference from the state during the first trimester. During the second trimester, states were allowed to require reasonable health regulations. It was only in the third trimester that states could prohibit abortion, as long as there were exceptions included for the life of the mother.
This ruling of the Supreme Court has kept both Congress and state legislatures from regulating abortion as they see fit since 1973. Even so, states have repeatedly attempted to restrict abortion. Often pro-life laws were struck down, with courts citing Roe as the reason.
Planned Parenthood v. Casey (1992)
In 1992, a case regarding a Pennsylvania law that regulated abortion was ruled on by the Supreme Court. Many court-watchers predicted that, in this decision, Roe would be overturned, as the Court supposedly leaned right. That did not happen. Instead, the Court ruled in Planned Parenthood v. Casey to uphold Roe while admitting that some of its arguments were not valid. Just like in Roe, however, the Court in Casey took on the role of Congress and legislated. Among other rules, it provided a new policy regarding what could be regulated by the states, exchanging the trimester framework in favor of a viability analysis, which ruled that abortion could not be prohibited before a baby could survive outside the womb.
It is important to note here that, under both the Roe and Casey decisions, abortion could be legal in the United States at any point in the pregnancy. Neither Roe nor Casey’s subjective rules protected unborn children. The Court did not ban abortion in the final trimester in Roe nor did it ban abortion after viability with Casey. Instead, the Court ruled that it was unconstitutional for states to ban abortion before these points. After them, the Court simply would not say ‘no’. States that wanted to allow abortion up to birth were free to do so.
Dobbs v. Jackson Women’s Health Organization (2022)
The reaffirming of Roe in 1992 through Casey appeared to extinguish any hopes of getting rid of such a bad precedent. In the decades to follow, states passed many pro-life laws that were, just as before Casey, struck down as unconstitutional because of the Court’s prior rulings. Some limited pro-life laws survived, but most consequential laws were rejected by our nation’s judicial system.
In 2018, Mississippi passed a law banning most abortions after fifteen weeks of pregnancy. This period is about two months earlier than Roe and Casey allow. As a result, the Fifth Circuit Court of Appeals kept the law from being enforceable. That decision was appealed to the Supreme Court, which ruled in favor of the state of Mississippi on Friday, overruling its previous precedents set by Roe and Casey.
In Dobbs, the Court is returning the right to regulate abortion to the legislative branches of government. To be clear, the Court did not make abortion illegal. Instead, it simply gave legislative authority back to Congress and state legislatures to decide the matter as the Founding Fathers designed–through the representatives of the people.
Alabama's Current Abortion Law
Alabama’s ban on abortion comes primarily through the Human Life Protection Act, which the Alabama legislature passed in 2019. At that time, Roe remained the controlling judicial precedent of the nation, making it nearly impossible for most pro-life laws to come into effect. This was known both to the bill authors and to the legislators who supported the bill. When Governor Ivey signed the bill, she remarked that its purpose was, at least in part, to force the Supreme Court to “revisit this important matter.”
This certainly was one goal of the Human Life Protection Act. Proponents knew the bill would, for the time being, be unenforceable and hoped it would make its way through the judicial system all the way to the Supreme Court. The Supreme Court, then, would have an opportunity to reassess all it had previously ruled in Roe and Casey. Our 2019 law could end its legal trajectory in Roe being overturned.
This was not the only goal of the legislation, however. According to attorney and legal scholar Eric Johnston, who wrote the Human Life Protection Act, the law is “good, viable, and enforceable” policy. It was written with the intent to be enforced – with the possibility of Roe being overturned – and is legally sound and morally just.
So, what does our abortion law do?
“Except in cases where abortion is necessary in order to save the life of the mother or to prevent a serious health risk to her, which is closely defined, it bans all abortions,” Johnston said in an interview with the Alabama Policy Institute. “We use the criminal definition that we have in our law from several years ago that says the fertilized egg has to implant in the uterine wall. And the reason we used that definition is because that is a provable case.”
This definition is important. It means that the morning-after pill and other emergency contraceptives will not be affected by the Alabama law. It also means that the law will not impact those pursuing in vitro fertilization.
Additionally, women are not penalized for seeking an abortion by this law, according to Johnston. “If she tried to do it on her own, there’s no crime committed,” he said. “If she goes to another person for a back-alley abortion, that person would be prosecuted. If she tried to use an abortifacient, she had ordered a drug out of state, then it would be up to the attorney general to locate who sent that, and you could prosecute the person who sent that into the state.”
The mother, in no case, would be prosecuted. Instead, the Class A Felony, which is punishable by life in prison, would be levied against the person performing or providing the abortion.
Alabama’s Pro-Life Constitutional Amendment
In addition to the Human Life Protection Act, Alabama voters in 2018 added a pro-life amendment to the Alabama Constitution that binds the legislature from weakening the state’s abortion ban. “Any attempts to weaken the Act would violate the Alabama Constitution,” Johnston said.
Another impact of the constitutional amendment, according to Alabama Attorney General Steve Marshall, is that abortion supporters cannot, in a last-ditch attempt to keep abortion legal in the state, honestly argue that the Alabama Constitution provides a right to abortion. The amendment explicitly states that the Alabama Constitution does not provide such a right. That clarity in the Constitution, according to Attorney General Marshall, will make defending pro-life laws easier in the courts.
What Happens Now
Roe has been overruled. Even so, Alabama’s abortion ban was not instantaneously the law of the land and had to wait until U.S. District Court Judge Myron Thompson lifted his injunction that had prevented the provisions of the Human Life Protection Act from going into effect. Thompson granted Alabama Attorney General Steve Marshall's emergency motion to rescind his injunction Friday afternoon.
While legislators in other states may have to adjust their laws to account for the will of the people in a post-Roe era, Alabama legislators do not. The Human Life Protection Act already does that. We are one of the most pro-life states in the nation and our law reflects this reality.
Suggestions that Alabama legislators should change our law, though likely well-intentioned, ought to be rejected. As described above, the Human Life Protection Act is not a haphazard swing at Roe but an effective and enforceable law. Any representation otherwise is inaccurate.
Some would like to change the law by adding exceptions for rape and incest. This is not a helpful proposition, and, for those concerned, emergency contraceptives are available and will continue to be available in Alabama post-Roe. The desire for these exceptions is primarily emotional and does not withstand examination.
This is because the pro-life community opposes abortion, because of the belief that every human being is endowed with the right to life. The unborn person is just that, a person.
Rep. Terri Collins (R-Decatur), the original bill sponsor, said in 2019 that the law was written as it was because “an unborn baby is a person who deserves love and protection.”
The pro-life community has worked diligently to argue this position. Ultrasounds and advancements in medicine have made the case easier to make. More people are seeing the personhood of the unborn child.
Allowing abortions for rape and incest is inconsistent with this view. If we are correct that the unborn child is a person, it does not matter how they were conceived. They are a person and therefore have all the rights of a human being. This is not to discount the hurt, pain, and suffering that bearing a child conceived in rape or incest may inflict on a mother. That said, allowing evil to be repaid with evil will do nothing to adjudicate that pain.
It is this belief in the personhood of the unborn that differentiates the pro-life position from the pro-choice position. The pro-choice position does not answer the question of personhood. The pro-life position does. A failure to recognize the personhood of those conceived by rape or incest is a failure to stand firm in our commitment to life.
Across the nation, our laws already recognize the life and personhood of unborn children, regardless of how they are conceived. Killing or injuring an unborn child, if not done as an “abortion,” yields the same penalty as killing or injuring a fully developed adult under federal law. Murdering a pregnant woman is considered a double homicide. If an unborn child is a person, this makes sense. If it is not a person, these laws are illogical.
Even so, there is already national and local pressure proposing we “fix” our law. There is no fix necessary. The bottom line for pro-life Alabamians is that the law does not need to be changed. It is true to pro-life principles, will keep women from prosecution, and represents Alabama values well. It is a morally just law of which our state ought to be proud.
We are thankful for this ruling. If the legislature is energized to “fix” Alabama law, we recommend they streamline the adoption process and make it easier for the families of our state, through foster care or adoption, to care for Alabama children.
The Alabama Policy Institute (API) has a thirty-year award-winning record of research and conservative advocacy on issues of public policy. Alumni of the Board of Directors and former API staff have served, or are serving, at all levels and in every branch of state and federal government.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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