These 25 white men – all Republicans – have voted to ban abortion in Alabama https://t.co/4LMQfX59Vs
— The Guardian (@guardian) May 15, 2019
When the Alabama Senate completed action on legislation to virtually ban abortion in the state, the Guardian took note of the demographics — 25 white men voted aye. The female Republican governor is expected to go along. She might as well. Alabama, like Arkansas, requires only a simple majority vote to override a gubernatorial veto.
The larger question for women’s reproductive rights is whether, as anti-choice forces hope, this is the beginning of a march to the overturning of Roe v. Wade, with the help of recent Trump appointees to the U.S. Supreme Court.
Harvard law professor Laurence Tribe offered a perspective on that yesterday:
If signed by Alabama’s Governor, this law criminalizing all abortions, without exceptions for rape or incest, is too extreme to make a decision upholding an injunction against its enforcement a likely case for SCOTUS to agree to hear. https://t.co/iigOYUEusp
— Laurence Tribe (@tribelaw) May 15, 2019
If precedent means anything a federal district court will say it is bound by Roe v. Wade and protection of abortion rights before fetal viability and enjoin the Alabama law. A Circuit Court of Appeals would be bound to do the same. There’d be no conflict among the courts for the U.S. Supreme Court to resolve and it would decline an appeal.
(If oaths to obey the Constitution meant anything to Alabama legislators, they’d have voted against this legislation. Courts make law, guided by the Constitution. Legislators don’t get to decide what is constitutional and what is not. Courts do that. Of course, this is only theory. The Arkansas legislature frequently flouts the Constitution.)
Arkansas actually is an illustration for Tribe’s point.
The Arkansas legislature in 2013 banned abortions after 12 weeks (not even from conception) if a heartbeat could be detected. Federal Judge Susan Wright struck the law down. The 8th U.S. Circuit Court of Appeals upheld her decision. Important: the 8th Circuit is seen by many as the most conservative appellate bench in the country. While it has gone along with some efforts aimed at restricting women’s medical rights, it has not altered the baseline Roe holding on viability. In short: Even the 8th Circuit has upheld Roe because it was bound to do so. And the U.S. Supreme Court refused Attorney General Leslie Rutledge’s attempt to appeal that 12-week-ban ruling. It also refused — but this was pre-Gorsuch and Bart O’Kavanaugh — to consider another 8th Circuit ruling upholding the invalidation of a six-week abortion ban in North Dakota.
Can Trump appoint enough anti-choice ideologues to a circuit court to get it to uphold a sperm-meets-egg abortion ban like Alabama’s and thus give the Supreme Court a chance to strike down Roe? And if it did, would even the likes of Gorsuch and O’Kavanaugh go so far as to uphold a felony in the case of a woman who was given a miscarriage-inducing pill a few days after a rape? This would be not a reversal, but a murder of precedent.
Tribe thinks it’s a long shot. We can hope. In the meanwhile, women in Alabama will suffer thanks to 25 men.