Ala.’s abortion law flags assault on privacy
Alabama’s new anti-abortion law, so vicious that it wouldn’t even spare a child raped by her father, will never go into effect.
If the Supreme Court is to repudiate Roe
v. Wade — which is a serious and mounting threat — it will be some other state’s legislation that does it.
By banning all abortions except to save a mother’s life, with 99-year sentences for disobedient doctors, Alabama recklessly over-reached.
It’s not just competent legal scholars who say so. Even Pat Robertson, the televangelist who is stridently anti-abortion, calls the law “extreme.”
“My humble view,” he said Wednesday, “is that this is not the case we want to bring to the Supreme Court because I think this one will lose.”
You can be sure that Chief Justice John Roberts is counting on lower federal courts to dispose of the Alabama law before he ever sees it. With a solid majority — 58 percent — of the public still in favor of abortion remaining legal in all or most circumstances, Roberts knows that his court could not afford to uphold anything like the Alabama law. Not unless it cares to be as unpopular, and as disrespected, as Congress at its worst.
But there really is a clear and present danger to reproductive choice in the legislation bubbling up from states such as Georgia, Louisiana, Utah, Missouri, Indiana, Ohio, Kentucky and Mississippi, some of which would ban abortion as early as six weeks into pregnancy. At that stage, many women don’t even know they’re pregnant.
Some of the laws attempt to inhibit abortions with waiting periods or by placing so many regulations on doctors that they can no longer afford to perform them.
All such laws are being enacted with the same transparent goal of giving the court’s conservative wing, strengthened by President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh, a pretext to nullify Roe with death by a thousand cuts.
The central holding in Roe, the 1973 precedent that has been under relentless political attack, is that abortion is protected by the same right of privacy that the court had defined eight years earlier to strike down a Connecticut law against contraception.
As to abortion, however, the court adopted a balancing test. During the first trimester of pregnancy, a woman’s right to abortion must be unrestricted. During the second trimester, states could legislate to protect a woman’s health. Only in the third trimester does the state’s interest in protecting a fetus override the woman’s privacy, and even then, states must allow abortion to save a woman’s life.
The Alabama law defies Roe head-on. The other laws would give the court’s conservatives an arguable pretext to eviscerate Roe while pretending to be reaffirming it. In a way, their refusal to uphold the most extreme law — Alabama’s — would give them cover for validating the others.
It’s a mass assault on the rule of law — specifically, the principle of stare decisis — that courts should respect precedent unless there is a compelling reason not to. The political appeal of anti-abortion laws, catering to an organized and vocal minority, is not such a reason.
More here is as stake than even whether American women will once again be driven to back-alley abortionists or to potentially lethal self-help with clothes hangers.
Abortion is the wedge issue of a powerful, organized, conservative movement that’s using the Republican Party to remake America into something primitive and brutal. The Washington Post described Alabama, cogently, as a “test kitchen for an unopposed Republican agenda.”
It is an extension of the age-old doctrine of male dominance, often implemented through theology, that has kept women marginalized and powerless for most of recorded history.
What it is NOT about — despite gales of hypocrisy — is the sanctity of life, Alabama Gov. Kay Ivey’s pretext for signing the new law. It means that in Alabama, she said, “every life is precious, that every life is a sacred gift from God.”
But if she and the 25 male state senators who sent the bill to her desk really believed that, the infant mortality rate in Alabama wouldn’t be one of the most shameful in the developed world, tied for fourth worst in the U.S. at 7.4 deaths per 100,000 births. That’s almost twice as high as in the best American states and two to three times higher than in Western Europe.
Curiously, the 12 states with the worst infant mortality rates are generating some of the most rabid anti-abortion laws. Seven of them rejected Medicaid expansion.
There are encouraging signs of a developing backlash; among them, the reluctance to comment on the Alabama law on the part of several Republican senators up for re-election next year.
The deliberate politicization of the judiciary by Trump, who has virtually outsourced his appointments to the hardright Federalist Society, will be an issue in 2020. It would behoove the Supreme Court and the anti-abortion extremists to keep in mind the potential of that backlash. There has already been talk among some Democrats about packing the Supreme Court — enlarging it to let a Democratic president’s appointees outvote the conservatives.
Court packing is never a good idea, but it’s what Mitch McConnell did when the Senate majority leader refused to let President Obama fill Antonin Scalia’s vacancy. It’s what Trump has been doing by making ideology his litmus test.
It’s also what has been happening in Florida with Gov. Ron DeSantis’ markedly conservative Supreme Court appointments.
Florida women are uniquely protected — for now — by the state Supreme Court’s unanimous holding in 1989 that the privacy clause in Florida’s Constitution includes an adult woman’s right to reproductive choice. But not one justice remains from that day, and the DeSantis court is shedding precedents conspicuously. If the nation’s highest court subverts Roe, Florida’s court will doubtlessly follow.
These are dangerous times for women and men who favor personal privacy and reproductive choice. What they should realize now, if they did not know before, is that elections matter. They matter very much.