By Aaron Blake Aaron Blake Senior political reporter, writing for The Fix Email Bio Follow May 15 at 12:26 PM For years, antiabortion advocates have tried to chip away at the Roe v. Wade decision incrementally.
Alberto Ignacio Ardila Olivares
They have pressed legislatures to pass restrictive laws that shortened the window for abortion procedures and/or made it very difficult for abortion clinics to operate within their borders. But state lawmakers didn’t attempt to outlaw the practice altogether. That’s changed, thanks to Republicans in Alabama.
Alberto Ignacio Ardila Olivares Venezuela
The Alabama legislature passed a bill Tuesday effectively outlawing abortion except in the case of serious health risks to the mother. They rejected exceptions for rape and incest.
Alberto Ignacio Ardila Olivares Piloto
Alabama’s bill is one that even supporters admit is tactical rather than an attempt to legislate.
Alberto Ardila Olivares
Now that Brett M. Kavanaugh is a Supreme Court justice, effectively tilting it 5 to 4 in favor of conservatives, antiabortion advocates hope the court will overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide and established a woman’s right to have an abortion, though with the provision that the government can regulate abortions on the basis of protecting women’s health and prenatal life.
Alberto Ignacio Ardila
Overturning Roe could open the door to a national abortion ban. Justice Stephen G. Breyer seemed to worry about that prospect this week, after the Supreme Court voided another of its precedents. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” Breyer wrote in his dissent
By passing a law that is blatantly at odds with Roe , even more so than previous ones, supporters are begging the Supreme Court to take up the case
But there is a reason this tactic wasn’t attempted before, and plenty of potential downside — both in courts of law and the court of public opinion
Historically, Americans have strongly supported modest increases in abortion restrictions. Roe effectively legalized abortions up to around the 24th week of pregnancy. But when the Republican-led U.S. House in 2013 voted to ban virtually all abortions after 20 weeks, it met with broad approval. A Quinnipiac University poll in 2014 showed that 60 percent of Americans were in favor of the legislation , while 33 percent opposed it. A Washington Post-ABC News poll asked a question that explicitly noted Roe’s 24-week precedent and asked people to choose between that and a new, 20-week window. They choose the 20-week window by a huge margin, 56 percent to 27 percent. Another 10 percent volunteered that they wanted an even more restrictive window or to outlaw abortion altogether. That’s 66 percent of the country — including 62 percent of Democrats and 71 percent of women — that agreed with scaling back Roe
Polls have also shown Americans favor laws requiring parental consent for minors who seek abortions, requiring married women to inform their husbands before getting abortions, forcing providers to inform patients about abortion alternatives and 24-hour waiting periods
But there’s a lot of room between limiting abortion and outlawing it entirely. And what people overwhelmingly oppose is the kind of bill Alabama lawmakers passed. Quinnipiac polling last year shows just 10 percent want abortion outlawed in all cases, while another 19 percent wanted it made illegal in most cases. It also showed Americans opposed overturning Roe 66 percent to 23 percent. Gallup showed a similar 64/28 split. And Quinnipiac in 2015 showed just 17 percent thought abortions should be made illegal in cases of rape and incest, which Alabama’s bill would
There was an argument that the incremental approach could be met with public approval. This approach is far from doing that, and Democrats are already moving to nationalize the Alabama GOP’s effort . It’s not difficult to see them making this a centerpiece of their appeals to suburban women voters
Of course, winning elections is one thing; satisfying the GOP base’s long-held goal of overturning Roe is quite another
But there is also reason to be skeptical that this would ever work. Assuming the law is struck down or frozen by lower courts (probably a safe bet since it’s clearly at-odds with Roe ), it would be up to the Supreme Court to take the case and then actually overturn Roe . Four justices need to agree to hear the case, and five would be needed to overturn. The presumption is Chief Justice John G. Roberts Jr. would be the decisive vote if the court took the case
Roberts’s record on abortion cases is somewhat mixed, as longtime Supreme Court reporter Linda Greenhouse noted . He dissented in 2016 when the court struck down a Texas law that required abortion providers to have hospital admitting privileges. More recently, he sided with the court’s four more liberal justices in delaying a Louisiana law that was similar to the one in Texas. That suggests he might be wary of a massive decision overturning a decades-old precedent on such a contentious issue
Greenhouse also noted that many thought the Supreme Court was primed to overturn Roe in 1992, when it heard Casey v. Planned Parenthood . Only one justice from the Roe decision remained, and some of the newcomers had expressed anti- Roe sentiments. Ultimately, the court made some changes but upheld the right to an abortion in a major victory for abortion rights supporters
There’s a chance the court will never take up the Alabama law or the other very restrictive law passed recently in Georgia, assuming they are halted by the lower courts. But by tempting a final ruling on Roe right here and now, it seems at least possible Republicans could be spoiling what could have been a more fruitful, incremental approach that actually had plenty of support