“They want to challenge Roe vs. Wade, but my humble view is I don’t think that’s the case I’d want to bring to the Supreme Court because I think this one will lose,” Robertson told viewers of CBN’s “The 700 Club” on Wednesday.
“God bless them, they’re trying to do something,” he said of Alabama legislators. Speaking before Alabama Gov. Kay Ivey (R) signed the bill into law, Robertson said it would be “ill-considered,” though he also denounced the Roe ruling.
Robertson has used his show to regularly praise President Trump during his campaign and since his election. During brief remarks made on Wednesday’s show, the televangelist noted how Trump and then-presidential candidate Hillary Clinton sparred over partial-birth abortion in a debate leading up to the 2016 election. He described Clinton’s views as “extreme” and appeared to suggest that Alabama’s law could be similarly viewed as “extreme” from the other side.
Any restrictions on abortion, Robertson said, have been “extraordinary,” but he doesn’t think this is the right case to bring to the Supreme Court.
Robertson, who helped spur the rise of the religious right in the 1980s and 1990s, has been an influential leader among some conservative Christians for decades. He is widely known for making controversial remarks on his show, predicting earlier this week that the Equality Act, which aims to extend federal protections to LGBT Americans, would bring God’s judgment.
A longtime abortion opponent, Robertson reflects a divide among those who share the goal of overturning Roe v. Wade but believe in different political and legal approaches to making it happen. Some abortion opponents have been working incrementally at the state levels on laws like parental notice and ultrasound requirements, while other activists have wanted to take a more aggressive approach that could challenge Roe more directly.
Abortion opponents have been pleased with Trump’s picks for the Supreme Court, where they believe justices are more likely to oppose abortion rights.
In its 1973 Roe decision, the court ruled that states may not restrict abortion before the fetus is viable, usually around 23 or 24 weeks of pregnancy. Sixteen states have passed or are working to pass “heartbeat bills” that would ban abortions around the time a doctor can detect a heartbeat, usually about six weeks. The strategy has been viewed as more extreme by some, and such laws would likely be struck down by lower courts.
Alabama’s law is a blatant attempt at getting the Supreme Court to revisit Roe, said Mary Ziegler, a professor at Florida State University College of Law who has written on abortion.
“For Alabama legislators, maybe it’s good for them and their own constituents,” said Ziegler, who expects the law to be energizing for abortion rights proponents. “If you’re looking at national antiabortion strategy, it might’ve been a misfire.”
Alabama Rep. Terri Collins (R) wanted the legislation to be strong enough to force federal court intervention, so it could not include exceptions for rape and incest, she told The Washington Post.
“It has to be 100 percent a person at conception,” Collins said.
According to a 2014 Pew Research Center survey, 54 percent of Alabama adults said abortion should be illegal in most or all cases — one of the highest proportions in the country — while 40 percent said it should be legal in all or most cases.
Most observers expect the Supreme Court to take up abortion bans that are less sweeping than Alabama’s, such as cases involving abortion bans at 20 weeks or a law reducing the number of abortion clinics, incremental steps that could eventually lead to a major challenge of Roe v. Wade.
Richard Garnett, a law professor at the University of Notre Dame, said in an email that Alabama’s proposal will likely not be considered by the Supreme Court when the justices could consider less dramatic measures, such as limiting late-term abortions or abortions targeting disabilities. The justices, Garnett said, “might well prefer to first consider less sweeping abortion regulations and to uphold them even under the current doctrine.”
The Alabama law was cheered by some activists who oppose abortion, including Susan B. Anthony List President Marjorie Dannenfelser, who called the legislation “a landmark victory for the people of Alabama.”
“The American people want a fresh debate and a new direction, achieved by consensus and built on love for both mothers and babies,” she said in a statement. “The time is coming for the Supreme Court to let that debate go forward.”
Some abortion opponents are worried about unintended consequences of abortion legislation that could end up failing in the lower courts.
In Tennessee, Catholic bishops opposed a “heartbeat bill” proposal earlier this year, warning that the state could have to pay hundreds of thousands of dollars in attorney fees if Planned Parenthood sued and won over the measure. That bill failed to move forward in the state legislature. Alabama was forced to pay the ACLU and Planned Parenthood $1.7 million in 2016 after a law requiring abortion providers to have hospital admitting privileges was struck down by federal courts.
“It’s high-risk, possibly high-cost,” said Clarke Forsythe, senior counsel for Americans United for Life, a Washington-based nonprofit that writes model legislation for state lawmakers opposing abortion.
Most Americans may not be aware of the intricacies of litigation, Forsythe said, and a law like Alabama’s will likely never go into effect in the state because of legal challenges.
“Expecting a lightning strike and some abrupt change in the Supreme Court is not warranted,” he said.
Elizabeth Nash, senior state issue manager at the Guttmacher Institute, a nonprofit research group that supports abortion rights, said that the group also expects the Supreme Court to take up abortion cases that could chip away at Roe v. Wade but that the details are still unclear.
“We expect abortion rights to be undermined,” she said. “The court will have multiple bites at the apple.”
Nationally, support for allowing abortions depends heavily on the circumstances and times during which they are sought.
A Gallup survey in May 2018 found that people overwhelmingly think abortion should be legal when the woman’s life is endangered in both the first trimester (75 percent) and third trimester (83 percent). In the case of rape or incest or if the child would be born with a life-threatening illness, at least two-thirds say such abortions should be legal in the first trimester, but that drops to about half of adults who say the same if it occurs during the third trimester. Forty-five percent say abortion should be legal for “any reason” in the first trimester vs. 20 percent in the third trimester.
Scott Clement contributed to this report.