Provocation: Alabama Senate passes bill that makes almost all abortions a crime

If the Supreme Court’s conservatives truly relish a fight over Roe v Wade, Alabama has only a governor’s signature in the way of one. The state senate passed a bill that would ban abortion in almost all instances, charge doctors with felonies for performing them, and has no exceptions for rape or incest. “Why not go all the way?” the bill’s sponsor said in arguing for its passage.

This … is certainly all the way:

The Alabama Senate approved a measure on Tuesday that would outlaw almost all abortions in the state, setting up a direct challenge to Roe v. Wade, the case that recognized a woman’s constitutional right to end a pregnancy.

The legislation bans abortions at every stage of pregnancy and criminalizes the procedure for doctors, who could be charged with felonies and face up to 99 years in prison. It includes an exception for cases when the mother’s life is at serious risk, but not for cases of rape or incest — a subject of fierce debate among lawmakers in recent days.

The House approved the measure — the most far-reaching effort in the nation this year to curb abortion rights — last month. It now moves to the desk of Gov. Kay Ivey, a Republican. Although the governor has not publicly committed to signing the legislation, many Republican lawmakers expect her support.

For some, this looks as though Alabama legislators made the bill as provocative as possible. Terri Collins, who sponsored this bill in the lower chamber, says this bill sets the fight on the correct principle. If human life begins at conception, she argued, then fetal heartbeat bills are no better than first-trimester limitations. If the baby in the womb is human at all stages, then the law must protect human beings at all stages. An incremental approach surrenders the point:

“We will not stand by while politicians endanger the lives of women and doctors for political gain,” wrote Alexa Kolbi-Molinas, a senior staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project, in an email to CBS News following the vote. “Know this, Governor Ivey: If you sign this dangerous bill into law, we will see you in Court”

But the bill’s sponsor, Representative Terri Collins, said that’s the point. The state lawmaker called the bill a “direct attack” on Roe v. Wade and anticipates that the bill will be contested by abortion rights advocates, like the ACLU, and potentially make its way to the high court.

“The heart of this bill is to confront a decision that was made by the courts in 1973 that said the baby in the womb is not a person,” Collins said last week when the Alabama House debated the legislation. “This bill addresses that one issue. Is that baby in the womb a person? I believe our law says it is.”

On principle, Collins is correct. Collins is also correct in strategic thinking, in an all-or-nothing sense. Its draconian approach to punishment aside, the issue for opponents of Roe is that the Supreme Court refused to recognize the humanity of the child in the womb until some vague stage between conception and birth. Later courts have wrestled with the latter while studiously ignoring the former. The only way to get a Supreme Court to revisit the core issue of whether conception instantly creates a human life — which is the only scientific interpretation possible — is to ban all abortions on that basis and then roll the dice.

It’s the rolling-the-dice part that might create some problems. First, Kay Ivey might not feel like playing along with the strategy and could refuse to sign the bill. That seems unlikely, though, since Ivey backed Brett Kavanaugh’s confirmation on the basis of abortion after the 11th Circuit struck down an earlier Alabama bill that took a more incremental approach to challenging Roe. Ivey just won her first term as governor last year (she succeeded to the office after her predecessor resigned), so she has a little time before deciding whether she wants to run again. If she wants to roll the dice, this is a good time to do so.

The biggest question here is whether the Supreme Court will welcome this opportunity to revisit Roe — and whether a more incremental bill might have provided a better opportunity. It’s true that this bill strips out all other issues and forces focus on the core pro-life principle, but the Supreme Court doesn’t consider cases in utter vacuums, either. This bill could make justices wary of the disruptive impact that undoing Roe could bring in a way that a fetal heartbeat bill would not.

Even if that weren’t the case, it’s not at all clear that this configuration of the Supreme Court would overturn Roe at all, let alone for a blanket ban on all abortions. Two of the five people on the right wing of the court, Kavanaugh and Chief Justice John Roberts, are not exactly ideologues. Both are more institutionally oriented and would have a resistance to sudden and massive lurches by the court regardless of the reason. To the extent they would be looking for a reason to rethink Roe at all, the two of them would likely prefer an incremental challenge that gets them past Casey and allows them an oblique approach to the core issue of Roe. 

Of course, other states are bringing incremental challenges to Roe too, regardless of what Alabama does. Overall, this bill adds to that strategy of provoking a fight that will force a rethink of Roe. Those strategists might want to hope for another retirement from the liberal wing of the Supreme Court and another Trump appointee to it before this case gets heard, though.