On Tuesday, a Republican majority in the Alabama state legislature passed a bill that bans abortion, even in the case of rape and incest. Health-care practitioners would face 99 years in prison for performing abortions — unless the “unborn child has a lethal anomaly,” an abortion is needed to “to avoid a serious risk to the unborn child’s mother,” or in cases of ectopic pregnancies. The bill’s sponsor, state Rep. Terry Collins, characterized the measure as “about challenging Roe v. Wade.” Republican Alabama Gov. Kay Ivey signed it into law Wednesday.
Abortion rights advocates are understandably outraged — and terrified — that the Alabama bill marks the beginning of the end of Roe v. Wade, the first Supreme Court case that found a woman’s right to choose whether to have an abortion in the Due Process Clause of the Fourteenth Amendment to the Constitution.
The Alabama law will be challenged in court. Lower courts will strike the law down, because Roe and later Supreme Court cases, including the 1992 decision in Planned Parenthood v. Casey, don’t allow states to pass laws that impose undue burdens on a woman’s ability to get an abortion. The Alabama ban would give a low-income 13-year old rape victim in Alabama no option but to carry her pregnancy to term. That’s an undue burden, full stop.
If the Supreme Court decides to hear an appeal from a lower court applying Roe, it would suggest that the court wants to consider changing Roe itself. There’s no tinkering around the edges of Roe with this law — it flies in the face of established Supreme Court precedent, so upholding the Alabama law likely requires striking down Roe.
Before we go too far down the road of predictions, let’s answer two seemingly simple questions: What does the “right” to an abortion really mean under the law? And would a reversal of Roe make abortion illegal?
First: A constitutional right — any constitutional right, in fact — simply means that an individual holder of that right can go to court and get an order stopping the government from doing something.
The Second Amendment right to possess a handgun in a home means that a handgun owner could go to court and get an order striking down a state law banning handguns. A First Amendment right to worship as you choose means that, if a state passed a law banning religious signs on front lawns, a homeowner could go to court and get an order striking down the law. And so on.
Hence, a due process right to an abortion means that states cannot issue laws making it wholesale illegal for women to have abortions or punishing those who perform them. It also means that if states pass such laws and penalize violators, the states can be sued in court to stop the laws.
In Casey, the Supreme Court tinkered with the due process right to abortion by holding that certain restrictions on the right to an abortion are okay — such as a 24-hour waiting period. The tinkering is not itself a big deal. The Supreme Court has tolerated restrictions on other constitutional rights, as well. The government can ban child pornography even though it’s technically “speech,” for example.
If the court were to overturn Roe, it would mean that the Constitution no longer stands in the way of states banning abortion altogether and imposing punishment on health care providers and/or women for engaging in abortions. (The Alabama law would not put women and girls in prison for having had abortions, but it would force some to carry pregnancies to term against their will.)
The Constitution is at the top of the legal food chain. Below it are state laws, among other things. Without the Constitution standing in their way, states could pass abortion laws as they see fit. Some states would allow abortions. Others would not. Others would allow abortions only under certain circumstances.
For women of financial means, living in Alabama would not mean no abortion access. It might require them to take time off from work and buy a plane ticket to a state that allows abortions. But for women and pregnant children without money to travel, a law banning abortion could be devastating.
Second: In a post-Roe world, therefore, abortion would not be illegal in the United States. It would depend on the state — and its voters. Post-Roe, proponents of safe and legal abortions would have to vote their way into state legislatures to secure the passage of laws that allow safe and legal abortions. The Constitution would no longer help them.
This is not an impossible feat. For the past 10 years, a Marist poll has shown that the vast majority of Americans — up to three-quarters or more — favor safe abortions through the first trimester.
Polls also show that, although the 2018 congressional midterms turned out 49 percent of eligible voters to the polls, that number hovered closer to 40 percent for the past three decades. No doubt, among the 51-60 percent of voter no-shows are people who care deeply about protecting women’s ability to obtain safe and legal abortions. If the Supreme Court were to overturn Roe, those folks will need to get their views heard the old-fashioned, door-to-door, hard-fought way: at the polls.
Americans should be prepared for the real possibility that the constitutional right to abortion will be read out of the Constitution by the current conservative majority of the Supreme Court.
But they need not despair. If the fallout of a reversal of Roe means more participation by the American electorate in local, state and federal elections — and thus the shoring up of the precious right to vote in the first place — there’s a silver lining. Abortion rights would rapidly exit the political debate at the federal level, as well. No more cynical jockeying for Supreme Court picks based on Roe. No more using abortion rights as the stealth battleground for other important issues that voters otherwise miss.
The ability to cast a meaningful vote is becoming more and more vital to a functioning and fair democracy in the United States. Under our system, the individual is the boss of government through the ballot box — not the other way around. Abortion access may prove to be no exception.
Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published in June. Follow her on Twitter @kim_wehle.