It’s a political disaster, a gift to the left.
"It's an extreme law": Pat Robertson says that Alabama's anti-abortion law goes too far and will most likely lose at the Supreme Court. pic.twitter.com/lDuteweasq
— Right Wing Watch (@RightWingWatch) May 15, 2019
Why would a red state pass a maximalist abortion bill, knowing how leery John Roberts has proved himself to be of overturning paradigm-shifting liberal initiatives? He had the votes to blow up ObamaCare in 2012 and he switched sides, seemingly fearing that a party-line vote in the Supreme Court would wreck what’s left of the Court’s institutional legitimacy as a neutral arbiter that stands above politics. Overturning Roe would be several orders of magnitude more earthshaking than overturning ObamaCare would have been, yet Alabama’s daring him to do it for a bill that bans abortion almost completely, with no rape or incest exceptions.
John Roberts is not going to risk the legacy of “The Roberts Court” to save a bill like that. It’s ludicrous that any legislator in Alabama thinks he might after the lessons of 2012.
Joe Cunningham’s explanation for the bill is more sensible. Maybe Alabama doesn’t expect SCOTUS to uphold it, he wonders. Maybe the point was just to make the boldest, most provocative pro-life statement they could, fully expecting that the Court would tear it up eventually. Why you’d want to do that instead of passing a bill that stands a real chance of overcoming Roe on a Court with five conservative members escapes me utterly.
We’d like to say “No abortion. Ever.” But that’s a tough sell in those cases. So Georgia, I believe very wisely, left those [rape and incest] exceptions in. Alabama, however, is an entirely different story…
I’ll be upfront about it: I don’t like the bill. In fact, I don’t think it’s a bill. I think it’s a stunt.
I’m not totally sure if it’s just a reactionary bill to say “We’re better than Georgia!” or “We’re way better than the infanticide supporters in the Democratic Party!” but it’s a bill that seemed to have been written to generate headlines and a Supreme Court challenge. It does not look like the work of a serious Pro-Life movement…
I don’t even think this bill, if it’s signed into law, makes it to the Supreme Court. I think it will get struck down in circuit court and the Supreme Court just won’t take it up. It’s not the fight they want to have because it’s so farcical.
That’s possible. Unquestionably, John Roberts would prefer to see this bill sunk at the appellate level and for SCOTUS to ignore it. The way the Supreme Court works, though, is that any four justices — four, not five — can force the Court to take an appeal. If I were a member of SCOTUS’s liberal wing worried about the five conservatives eventually striking down Roe when presented with a more moderate bill like Georgia’s, I’d leap at the chance to take the Alabama case and force John Roberts to make his stand on abortion on that unfavorable terrain. Dare him to vote to strike down Roe knowing that it would mean women in Alabama who got pregnant through rape would be forced to carry their rapists’ children to term.
There’s no earthly way Roberts would pull the trigger. Probably not Kavanaugh either. Maybe not even Gorsuch. Erick Erickson, surveying the various pro-life bills that have passed lately, goes so far as to say it’ll threaten Trump’s reelection if Kavanaugh and/or Gorsuch provide votes in favor of upholding Roe. I think he’s kidding himself — social conservatives won’t abandon Trump under any circumstances, especially if Kavanaugh’s and Gorsuch’s votes aren’t decisive. (And they almost certainly wouldn’t be.) But I do think this issue can improve lefty turnout at the margins and maybe keep some progressives who’d otherwise balk at a centrist nominee like Biden inside the Democratic tent.
And needless to say, if SCOTUS does vote to uphold Roe and strike down Alabama’s bill, there’ll be no second bite at the apple next term. The Court doesn’t like wrestling with Roe. If they’re forced to do it again soon, that’ll be the last attempt for years, for good or ill.
The only sense I can make of Alabama’s bill is if it’s part of a “package strategy.” That is, maybe the state legislature hopes and expects that its maximalist bill would be taken up along with Georgia’s more middle-ground “heartbeat bill” and considered by the Court in tandem in revisiting Roe. SCOTUS could rewrite Roe so that the Georgia bill is upheld while the Alabama bill is struck down, treating the latter as a token concession to pro-choicers. The Alabama bill, in other words, would be legal cannon fodder while the Georgia bill advances and ultimately defeats Roe. There’s no guarantee that the Court will consider both bills, though; it may be that Alabama’s bill is taken up whereas Georgia’s bill isn’t. In fact, maybe that’ll be the conservatives’ leverage in convincing the liberals not to take the appeal of the Alabama bill. “If you force us to rule on Alabama,” Roberts might tell them, “we’ll vote to grant cert for the Georgia bill too.” What would RBG et al. do then?