Abortion opponents in Alabama aim for outright ban

Anti-abortion rally in Washington

FILE - In this Friday, Jan. 18, 2019 file photo, anti-abortion activists protest outside of the U.S. Supreme Court, during the March for Life in Washington. (AP Photo/Jose Luis Magana)AP

Anti-abortion advocates in Alabama are changing their approach from trying to restrict abortion through regulatory bills to a push for an outright ban.

Birmingham attorney Eric Johnston, president of the Alabama Pro-Life Coalition, said the coalition supports legislation that could lead to a challenge of the Roe v. Wade decision in the U.S. Supreme Court. Johnston said the appointments of Justices Neil Gorsuch and Brett Kavanaugh raise the potential that the court could reverse the 1973 abortion rights decision.

Alabama lawmakers have passed about a half-dozen bills to restrict abortion since Republicans took control of the Legislature in 2011. Some are in effect. Federal courts blocked others. But Johnston said the era of fighting abortion through those incremental regulatory steps is fading.

“The Legislature should concentrate on prohibiting abortion, not regulating it,” Johnston said in an email.

Johnston said the Pro-Life Coalition is working with others on specific language in a bill. He expects a bill that would make abortion a crime.

“The operative part of the bill would be to make abortion a felony,” Johnston said. “In other words, it would be murder.”

The legislative session starts March 5.

The Alabama Pro-Life Coalition, formed in 1990, includes the Eagle Forum, the Alabama Policy Institute, the Alabama Citizens Action Program, Alabama Citizens for Life and others, Johnston said.

Randall Marshall, executive director of the American Civil Liberties Union of Alabama, said an Alabama abortion ban would likely be futile and costly to the state. Marshall said he’s not surprised at the idea given the changes on the court.

“But I would say for the Legislature It would be a pretty useless move to rush to pass this kind of bill because what’s going to happen is if they passed a bill like that, it would be immediately enjoined by a federal court,” Marshall said. “And it would be at least a couple of years, a year or two years, before it would get to the Supreme Court. And there are already cases pending before the Supreme Court, including one from Alabama, that deal with the continuing validity of the whole line of cases that preserve access to abortion care.”

The Alabama case concerns a ban on a second trimester procedure called dilation and evacuation, or dismemberment abortion. Attorney General Steve Marshall has asked the Supreme Court to review the decision by lower courts to block the 2016 Alabama law.

The ACLU supports abortion rights and has represented plaintiffs in challenges to Alabama abortion laws. Marshall said the state had to pay the ACLU $1.7 million in legal fees after plaintiffs prevailed in a case challenging an Alabama law that required abortion doctors to have hospital admitting privileges.

“Every time the Legislature passes an unconstitutional law and we challenge it and win, they’re on the hook for our attorney’s fees,” Marshall said.

Johnston acknowledges that the federal district court and appeals court would have no option but to block a state abortion ban because Roe v. Wade remains the law of the land. But that would position the state for a potential landmark challenge, he said.

“Then ask the Supreme Court, ‘Now, you look at it, you’re the only one who can make a difference here,’ ” Johnston said.

Elizabeth Nash, senior state issues manager for the Guttmacher Institute, said state legislatures are proposing more abortion legislation since Kavanaugh replaced Justice Anthony Kennedy on the court. Kennedy upheld the basis of Roe v. Wade in a key decision in 1992, Planned Parenthood v. Casey.

“What we’re seeing in more conservative states, generally the South, the Plains, the Midwest, are bills that ban all abortion, ban abortion at 16 weeks, ban abortion at 15 weeks,” Nash said. “So, sort of the more extreme abortion bans, we’re seeing those be introduced. And the language around them is about starting that challenge to Roe v. Wade, like being the state that overturns Roe v. Wade is a real interest to those legislators.”

The Guttmacher Institute analyzes abortion policies and promotes access to abortion services by making an “evidence-based case against restrictions that limit its access,” the institute states on its website.

In contrast to Alabama and other conservative-leaning states, Nash said some states are moving to protect abortion rights, also in anticipation of the Supreme Court overturning or weakening the Roe decision. If that happens, decisions on abortion rights could move to the state level.

A new law in New York says that women have a right an abortion up to 24 weeks after the start of pregnancy, or later if there is “absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”

“We’re seeing progressive legislators looking to safeguard abortion rights in their states, and conservative legislators looking to overturn abortion rights nationwide, all because of the changes on the Supreme Court,” Nash said. “All because the Supreme Court is now more conservative.”

Last year, Alabama voters approved an amendment to the state constitution that said the state recognizes the rights of the unborn, including the right to life, and that nothing in the state constitution provides the right to an abortion.

Johnston said the amendment is a statement of public policy but has no legal force as long as Roe v. Wade supersedes it.

And if Roe v. Wade is overturned, Alabama would still need a statutory law to ban abortion because the amendment has no operative provisions.

“It doesn’t require anybody to do or not do anything,” Johnston said.

A bill to ban abortions would likely involve changes to Alabama’s homicide law, Johnston said. That law includes an exception for abortion because it also defines an unborn child at any stage of development as a person. An abortion ban would remove that exception from the homicide law and make abortion a specific crime, Johnston said.

Johnston said one reason to seek an outright ban is that some incremental approaches, like bills to ban abortion when a fetal heartbeat is detected, have been tried and failed to survive court challenges. Alabama lawmakers have proposed but never passed a fetal heartbeat bill, which Johnston said would essentially ban abortions after about 10 weeks. The Supreme Court blocked North Dakota’s fetal heartbeat bill in 2016.

“Heartbeat bills are a thing of the past,” Johnston said.

Earlier this month, the Supreme Court granted a stay to block a Louisiana law to require abortion doctors to have hospital admitting privileges. The court could still consider a full review of that law.

Abortion rights advocates in Huntsville

Abortion rights protesters Doug Roth and Josie Poland hold their signs on the corner of Madison Street and Lowe Avenue during a regular abortion protest outside the Alabama Women's Center For Reproductive Alternatives on Madison Street Wednesday Jan. 23, 2012 in Huntsville, Ala. (Eric Schultz / AL.com)HVT

The Alabama Legislature has added new abortion regulations and restrictions over the years with mixed results in court.

In 2002, the Legislature passed the Woman’s Right to Know Act, which required women to receive certain information at least 24 hours before an abortion, including specifics on fetal development, abortion alternatives, adoption agencies and responsibilities of the father. It required the doctor to do an ultrasound and for the woman to sign a form saying whether or not she chose to look at the ultrasound. The law remains in effect. A bill in 2014 extended the waiting period to 48 hours.

Since Republicans captured control of the Legislature in 2010, lawmakers have passed abortion restrictions on a fairly regular basis. Some have survived court challenges and some have not.

In 2011, the Legislature passed a bill to prohibit abortions at 20 weeks or later. That law remains in effect.

In 2013, the Legislature approved the Women’s Health and Safety Act, which required abortion doctors to have admitting privileges at hospitals in the same city where they perform abortions. Federal courts blocked that provision.

Another part of the Woman’s Health and Safety Act required abortion clinics to comply with the building requirements of surgical centers, such as wider hallways and doorways. That requirement is in effect.

In 2016, the Legislature passed a bill to ban abortion clinics near public schools. A federal court blocked it.

Also in 2016, lawmakers passed a law restricting dismemberment abortions, which are known by the medical term dilation and evacuation. The federal district court blocked the law and the appeals court upheld that decision. Attorney General Steve Marshall has asked the U.S. Supreme Court to review the case. Twenty-one states are supporting Alabama’s petition to the court.

The procedure is used in about 7 percent of abortions in Alabama and in almost all abortions after 15 weeks.

A decision by the Supreme Court to overturn Roe v. Wade would hinge on the court’s recognition of the unborn child as a person, Johnston said.

“This whole issue is not about women’s rights but about the personhood of the unborn child,” Johnston said. “Democrats will cast the issue as of women’s rights. However, the whole construct of abortion is based only on a perverted and exaggerated idea of sexual privacy. That so-called right cannot be taken so far as to deprive a person of his or her life, regardless of his or her age.”

Marshall said the question, at least in part, is access to medical care.

“Partly it’s about, do we want the government dictating to anybody what medical care they will or will not receive,” Marshall said. “We talk about keeping government out of the private lives of individuals in so many things in this country. And yet, that’s what they’re arguing for, is that the government gets to decide for any individual what is best for her. I think that is antithetical to our belief system in the United States about the role of government.”

As for the assertion that the court should recognize the unborn child as a person, Marshall said, “That is an argument is never going to go away. I don’t think that there’s really ever going to be an agreement. Certainly, from a scientific, factual point of view, at conception, it is not capable of life on it’s own. And so, that’s why the framework is up until the point of viability, there is a greater right in a woman to decide what to do and a lesser interest in the state.”

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