The new onslaught on Roe v. Wade

By Robert C. Jones Jr.

The new onslaught on Roe v. Wade

By Robert C. Jones Jr.
After Alabama’s governor signed into law the most-stringent anti-abortion bill in the nation, UM experts in law and gender and sexuality studies discuss its repercussions and what’s to come.

Nearly 50 years after the Supreme Court’s landmark Roe v. Wade decision affirmed the legality of a woman’s right to have an abortion under the Fourteenth Amendment, Alabama Republican Governor Kay Ivey has signed into law the nation’s most restrictive anti-abortion bill, making it a felony to perform the procedure in nearly all cases. 

The near-total abortion ban, known as the Human Life Protection Act, prohibits abortion or attempted abortion in Alabama, except “in cases where abortion is necessary in order to prevent a serious health risk to the unborn child’s mother.” There is no exception for pregnancies resulting from rape and incest. 

Women who have abortions will not be prosecuted under the law, but physicians could be charged with a felony and face up to 99 years in prison for performing the procedure. 

Abortion rights advocates have reacted with outrage, promising to challenge the measure in the courts. 

The Alabama bill is the latest in a flurry of anti-abortion legislation in other states that is ultimately aimed at gutting Roe v. Wade now that a more conservative U.S. Supreme Court is in place, legal experts say.

Kentucky, Mississippi, Ohio, and Georgia recently approved bans on abortion once a fetal heartbeat is detected, passing so-called heartbeat bills. But the Alabama bill bans abortion almost outright. 

“Clearly the sponsors of these abortion bans have become emboldened by the new conservative majority on the Supreme Court,” said Caroline Mala Corbin, a professor of law at the University of Miami School of Law. “While [recently retired Justice Anthony] Kennedy was also generally conservative, he sided with the liberals in refusing to eliminate women’s constitutional right to abortion. Justice Kennedy was replaced by [Brett] Kavanaugh, who probably does not share Justice Kennedy’s reluctance.” 

During his confirmation hearing, Kavanaugh said he considers Roe v. Wade as “important precedent of the Supreme Court” that has been “reaffirmed many times.” But his dissenting opinion in a case in which the Washington, D.C. Circuit allowed a 17-year-old to end her pregnancy has raised questions about his stance on abortion. 

Claire Oueslati-Porter, a senior lecturer in the UM College of Arts and Sciences’ Gender and Sexuality Studies program, said the Alabama bill signed into law on Wednesday could actually be detrimental to women because it does not allow for exceptions in cases of rape and incest. 

“This communicates a message to people that they cannot have bodily autonomy at a time in their lives where re-establishing control over their bodies is vital to healing the trauma of sexual violence. We have only to look to the examples of countries that have enacted similar policies to see the disastrous outcomes of abortion bans even in the case of rape and incest,” said Oueslati-Porter, noting the recent case of an 11-year-old girl who was forced to give birth to her rapist’s baby after authorities in Argentina refused to allow her an abortion. The girl had become pregnant after her grandmother’s 65-year-old partner raped her. 

Corbin and Oueslati-Porter weigh in on some of the other important issues related to the Alabama abortion law: 

Why did the sponsors of this bill draft such extreme legislation? Is it their intent to take down Roe v. Wade?

It is currently unconstitutional to ban abortion before viability, which occurs at around 24-28 weeks pregnancy. Therefore, any law that bans abortion earlier unquestionably violates the constitution, and lower courts will strike these bans down. Every state passing these bans hopes that the Supreme Court will use their law to overrule Roe v. Wade.

— Caroline Mala Corbin, professor in the University of Miami School of Law 

How will opponents of the Alabama law and bills passed in other states restricting abortion attempt to stop such laws, and what’s the likelihood that one of these cases makes it to the Supreme Court?

Defenders of women’s reproductive autonomy will challenge each of these bans, as they have challenged every restriction on abortion passed since women’s right to abortion was first recognized.  As far as the bans go, they should succeed. The Supreme Court will take up one of these cases if four members of the court are so inclined.

— Caroline Mala Corbin, professor in the University of Miami School of Law 

How dangerous is this bill? Could it result in a return to unsafe, backstreet abortions of the kind that were performed before Roe v. Wade?

The bill (and others like it) is dangerous in several ways. We know that people do not stop having abortions when abortion becomes illegal. People who need abortions will seek the procedure out in a context of illegality. For people with wealth, there will be good options, including traveling (in secret if necessary) to a place where abortion is safe and legal to obtain the procedure. For people without disposable funds to take a trip to a location that allows safe and legal abortion, it is a much more dangerous reality.

— Claire Oueslati-Porter, senior lecturer in Gender and Sexuality Studies 

Could it result in the return of backstreet abortions of the kind that were performed before Roe v. Wade?

Illegal abortions are unregulated, and while some good people will be among those willing to face 99 years in prison for providing abortions, nefarious individuals will also provide abortions. As was the case before the legalization of abortion in the U.S., there was an underground market for abortions that was often extremely expensive and unsafe. Working-class and low-income communities in Alabama will be hit hardest by this bill. It is also worth considering that Alabama is among the poorest places in the U.S. and has some of the poorest sub-regions in the industrialized world. The violence of that poverty is exacerbated when people cannot access safe and legal abortion.

—Claire Oueslati-Porter, senior lecturer in Gender and Sexuality Studies