The governor of Alabama has signed a bill designed to lead to a new Supreme Court decision on Roe v. Wade, the landmark 1973 ruling that hamstrung states’ ability to restrict abortion.
Alabama Democrats, and even some Republicans, criticized the bill for being too strict. But state Rep. Terri Collins, the Republican who introduced the bill, suggested it was intentionally uncompromising so as to increase the chance that it would result in a challenge to Roe v. Wade.
Roe v. Wade
The landmark 1973 decision established that it is part of a woman’s “right to privacy” to undergo abortion (pdf).It ruled that states can’t regulate abortion in the first trimester, when the decision “must be left to the medical judgment of the pregnant woman’s attending physician.”
After the first trimester, states can only “regulate the abortion procedure in ways that are reasonably related to maternal health.”
States can only ban abortion after “viability,” meaning “potentially able to live outside the mother’s womb, albeit with artificial aid.” Even there, however, abortion must be allowed “where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Roe’s Story
The Roe v. Wade decision was based on the case of Norma McCorvey, a 21-year-old drug addict living on the streets when she fell pregnant in 1969 with her third child. McCorvey had already given up one child for adoption.At the time, McCorvey said she had been raped and was thus eligible for a legal abortion in Texas, but her request was refused because she couldn’t provide a police report proving that she had reported the rape. She was approached by Linda Coffee, a lawyer who wanted to challenge abortion restrictions and was looking for a pregnant woman she could introduce as the plaintiff for her case. McCorvey became that woman, entering the lawsuit anonymously as “Jane Roe.”
Together with another lawyer, Sarah Weddington, who ultimately argued the case before the Supreme Court, Coffee got the 7–2 decision saying that a woman has a right to abortion “free of interference by the state.”
McCorvey said that after spending years working at abortion clinics, she realized that abortion is wrong, not only because it kills the unborn, but because it traumatizes the women who undergo it.
“Participating in the murder of your own child will eat away at your conscience forever if you do not take steps to cleanse your conscience,” she said.
Personhood
The Alabama law takes aim at the core issue of whether an unborn child can be considered a person, as discussed in Roe v. Wade. In the Supreme Court’s 1973 decision, the justices acknowledged that “if this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”The court sided against Texas in this argument, stating that neither the Constitution, nor Texas’s own statutes, suggested that an unborn child should be treated as a “person.”
The law appears designed to make the argument that, this time, the state is serious about treating the unborn as human beings who should be granted legal protection.
The lawmakers even rejected an amendment that would allow abortion in instances of rape and incest, in what seems to be an attempt not to undermine the personhood reasoning.
Supreme Court
The current wave of anti-abortion legislation came after Trump appointed Justice Brett Kavanaugh to the Supreme Court in 2018, tilting the bench to five conservative-leaning justices versus four liberal-leaning ones. Trump already appointed Justice Neil Gorsuch in 2017.It’s not clear whether the conservative-leaning justices will be persuaded to reconsider Roe v. Wade. If they strike it down, it’s not clear how they’d choose to redraw the lines on abortion restrictions.