Alabama Abortion Law Could Make Its Way To The Supreme Court

May 16, 2019
Originally published on May 16, 2019 9:09 am
Copyright 2019 NPR. To see more, visit https://www.npr.org.

NOEL KING, HOST:

In Alabama, Governor Kay Ivey has signed into law the country's toughest anti-abortion law. It bans abortions except in cases of serious health risk to the woman. The law makes it a felony for doctors to perform abortions with a penalty of up to 99 years in prison. NPR's legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG, BYLINE: The Alabama law caps a crescendo of anti-abortion legislation that began last fall, when Brett Kavanaugh became the fifth hardcore conservative on the U.S. Supreme Court, replacing Justice Anthony Kennedy, who retired. Kennedy, a Reagan appointee, along with other now-retired justices appointed by Republican presidents, voted repeatedly to uphold the central part of Roe v. Wade.

But Kennedy's retirement and Kavanaugh's appointment means there are now five conservative justices on the court whose records suggest they could someday reverse decisions that have stood for 46 years and protected a woman's right to terminate her pregnancy. When? Well, probably not as soon as anti-abortion state legislatures would like, so states like Alabama are upping the ante. Florida State University law professor Mary Ziegler is author of the forthcoming book "Abortion In America: A Legal History."

MARY ZIEGLER: Anti-abortion legislators in Alabama hope to do this by kind of forcing the court's hand, in other words, giving them the bill that would be impossible to uphold without overturning Roe. I think whether that's the smartest strategy really remains to be seen, and I'm pretty skeptical.

TOTENBERG: It's not just Alabama. In recent months, states all over the South and parts of the Midwest have enacted new restrictions on abortion, laws that clearly are unconstitutional under Roe's central holding. Among them are state laws that ban abortions any time after a doctor can detect a fetal heartbeat - that's usually around the sixth week of pregnancy, which is before many, perhaps even most women know they're pregnant. Even staunch abortion opponents like George Mason University law professor Helen Alvare acknowledge that these laws are unconstitutional under current Supreme Court precedents.

HELEN ALVARE: Very likely, these laws would fail.

TOTENBERG: Meaning these laws would almost certainly be blocked by the lower courts, which are required to follow the Supreme Court's lead. And the Supreme Court might well decline to review those lower court decisions, leaving them intact. If Roe was to be overturned, most experts agree, it's more likely to happen at a slower pace. Moreover, the court doesn't like being in the nation's political crosshairs. Almost certainly, Chief Justice John Roberts, as well as other justices, would prefer not to have a direct challenge to Roe in the middle of the 2020 election campaign.

All of the recently appointed Supreme Court justices have repeated the mantra at their confirmation hearings that deference to prior decisions is important because the law is built on the notion of following precedent. The idea is that people organize their lives, their businesses and their governance by relying on what the Supreme Court says the law is.

Here's Justice David Souter in 1992 announcing part of an abortion decision and talking about the importance of following precedent, even if one might disagree with the original Roe v. Wade decision.

(SOUNDBITE OF ARCHIVED RECORDING)

DAVID SOUTER: A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court's legitimacy and to the nation's commitment to the rule of law.

TOTENBERG: The court even has rules for when precedent can be abandoned. And when the court decides to change course, it usually does so gradually over time. The court, for instance, took 16 years to switch directions and strike down legal segregation of the races, moving from law schools to colleges to secondary schools. The dismantling of abortion rights could begin next term in a case from Louisiana.

NANCY NORTHUP: It is the same type of law that they struck down just three years ago.

TOTENBERG: That's Nancy Northup, who heads the Center for Reproductive Rights. As she notes, while in the aftermath of the 2016 decision, all similar laws were being struck down by the lower courts, one appeals court did the opposite. The Fifth Circuit Court of Appeals ruled that doctors who perform abortions at clinics must also be accredited at nearby hospitals. So Northup and her group went to the Supreme Court. And by a 5-4 vote, the justices temporarily blocked the Louisiana law from going into effect.

Chief Justice Roberts cast the fifth and decisive vote. Two things make that vote extra interesting. One, Roberts was on the other side and in dissent in the 2016 nearly identical case. And, two, the Louisiana case is still awaiting final decision. The court could summarily reverse the lower court next term, or it could begin the process of chipping away at Roe on a more gradual basis instead of in one fell swoop.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.