Yes, the bill that Alabama’s Senate votes on today is intended to put an end to virtually all abortions in the state. Taking a different tack from other “heartbeat” bills we have seen recently, this one makes it a felony for a doctor to perform or attempt an abortion, and anyone who violates the law faces a sentence of up to 99 years in Alabama’s prisons. The sole exception is when the mother’s life is threatened. Most laws that prohibit some aspect of abortion have an exception that permits the procedure in cases of rape or incest. Alabama’s bill does not.
But that draconian nature of the bill is its point — because its sponsors aren’t just looking to prohibit abortion in Alabama. They are looking for a clean vehicle to take to the Supreme Court. They want to overturn Roe v. Wade, supplanting it with something that makes state laws prohibiting abortion the law of the land.
We have seen this strategy before in Alabama. The Shelby County v. Holder case became the vehicle for eliminating provisions of the Voting Rights Act that protected minority voters in states with historical suppression and discrimination. Laws designed with a specific Supreme Court outcome in mind will focus on the issues most likely to lead to that outcome. In the Shelby County case, the issues presented were selected to permit the court to gut Section 5 of the Voting Rights Act. The move was successful. Here, the strategy is explicitly one of passing a bill that gives the court the opportunity to reverse Roe, rather than eroding it bit by bit.
Alabama’s antiabortion bill is part of a legislative agenda that is meant for the rest of the country — as much as, if not more than, it is meant for Alabama.
Late last week, Alabama legislators became social media fodder when a shouting match broke out on the Senate floor over Republican Lt. Gov. Will Ainsworth’s effort to gavel down an amendment to the bill that would have permitted the exception for rape or incest. The bill had cleared Alabama’s House of Representatives without either exception attached. Debate over the amendment was not partisan in the sense that it was not between Democrats and Republicans. Republicans hold a supermajority in Alabama’s legislature, which they have controlled since 2010. They have a 77-to-28 majority in the House and hold 27 of 35 seats in the Senate. So the debate over the abortion bill and what, if any, exceptions it would include has been a matter primarily for Republicans’ internal deliberation.
All four of Alabama’s female state senators are Democrats, but seven of the 18 women in the House are Republicans, including the one who sponsored the antiabortion bill. That sponsor, Rep. Terri Collins (R-Decatur), along with Ainsworth, opposes any amendment and has been straightforward in her assessment of why it is so important that the bill move forward without exceptions for rape or incest. To Collins, the core argument for her bill is that a fetus “in utero” is a person, in contradiction of the legal ruling in Roe. Why refuse to include amendments to protect women in cases of rape and incest? According to Collins, permitting abortions in those situations means the fetus isn’t a person. She has said she will kill the bill if it includes the amendments because “it won’t go to the Supreme Court.” The bill as written, directly and intentionally, challenges Roe v. Wade.
That couldn’t be clearer. The bill is meant for the Supreme Court. Its goal is not just to criminalize abortion in Alabama but also to make it possible for states across the nation to follow suit. Its proponents see their bill as raising the issue of whether a fetus is a person so directly as to permit the court to find that it is permissible to prohibit abortion no matter the developmental stage of the fetus or the circumstances of the pregnancy. Ainsworth characterized the bill as a chance to give the current federal judiciary — “supercharged” with conservative jurists by President Trump — the opportunity to correct the “46-year-old mistake” the Supreme Court made in Roe.
Although an increasing number of states have recently passed laws designed to restrict abortions, Alabama’s legislation is designed to leapfrog over other state law cases being litigated with a direct challenge to the Roe decision. The reasoning behind a bill that lacks protection for victims of rape or incest is that if abortion is permissible in those instances, a fetus is not entitled to the full protection any other person would receive. This bill would give the court — if a majority of justices choose it — the ability to go further toward permitting states to outlaw abortion entirely than any of the other state laws that are winding their way through the courts.
By design, this bill would have an effect on women far beyond Alabama’s borders.
And that helps explain why the bill’s sponsors are willing to fight so desperately to keep exceptions for rape and incest out of it, even though many conservatives support those measures. The bill is not about introducing policies that could reduce abortions, such as providing medical and child care for women who choose to take pregnancies to term. It is a measure that would permit a presumably willing Supreme Court to create a pro-birth rule, declaring a fetus a person from the moment of conception, with all of the attendant consequences, intended and unintended.
All eyes should be on Alabama’s legislature as some of its Republican lawmakers try to lead the way in imposing their views on the country. If the proposed amendment protecting women who are victims of rape or incest is adopted in the Senate, expect the bill to die there or perhaps in conference committee, where it would be sent to resolve the conflict between the House and Senate versions that the amendment would create. The bill exists to set up a challenge to existing federal law, and if its unique nature is compromised, it’s likely that it will be abandoned. At least for now. Whether it is this bill or another, proponents of the views exemplified by it are ready to reap the advantage of the bargain they struck to support this president.