Alabama’s Abortion Bill Is a Naked Ploy to Challenge Roe v. Wade

And it risks making the Supreme Court fickle and political.
by Kim Wehle
May 16, 2019
Featured Image
Abortion is plenty political outside the Supreme Court. Alabama's new law risks making the court itself political. (Photo by Tasos Katopodis/Getty Images)

On Tuesday, a Republican majority in the Alabama state legislature passed a bill that would ban abortion, even in cases of rape and incest, and expose health care practitioners to 99 years in prison for performing abortions. The bill’s sponsor, state Rep. Terry Collins, confessed that the measure “is about challenging Roe v. Wade.”  Alabama Governor Kay Ivey signed it into law late Wednesday night.

Three legal takeaways here:

First: Now that the bill is law, lawsuits will immediately follow, and lower courts will strike it down. This last bit is a certainty, because the Supreme Court’s latest edict on abortion protects a woman’s constitutional right to undergo the procedure without government interference— unless the government’s restrictions do not place on “undue burden” on women’s access to abortion services. Under this test, constraints on abortion rights may or may not pass muster. In Planned Parenthood v. Casey, for example, the court held in 1992 that a husband notification requirement was an undue burden on the right, but that a 24-hour waiting period was not.

Before the Alabama bill, the legal battleground over abortion rights was about the meaning of “undue burden”—a highly subjective term that gives the nine justices of the Supreme Court undue discretion to tinker at will with the scope of abortion access, but preserves the right to access itself (pun intended).

Alabama’s near-complete ban is—by any stretch—an undue burden, because it means no abortions unless done because the “unborn child has a lethal anomaly,” in order “to avoid a serious risk to the unborn child’s mother,” or for ectopic pregnancies (that is, the fertilized egg unsustainably implants outside the uterus—most often in the fallopian tubes—which may burst as the pregnancy progresses, causing bleeding, infection, and death for the mother).

Second: The Supreme Court could decline to hear an appeal on the theory that the right to an abortion unencumbered by undue burdens imposed by the state is settled law. Normally, courts decide only “gray areas”—fact patterns that haven’t come up yet and need to be resolved because no prior decision is precisely on point. Here, Planned Parenthood is that on-point decision. Thus, the Alabama law is a naked ploy to get the newly minted 5-4 conservative majority on the Supreme Court to overturn the constitutional right to abortion itself.

If the court takes the case and reverses Roe v. Wade, Planned Parenthood (and, by necessity, the many other cases identifying a constitutional right to abortions without government interference), it will be by a fractured majority that votes to overturn longstanding settled law.

Third: If the Supreme Court takes such a case, also on the chopping block will be the reliability of the U.S. Supreme Court itself.

On Monday, the court issued a decision on an unrelated topic that caused alarm bells because, in a 5-4 decision, conservatives on the court overruled long-settled precedent just because they disagreed with it.

That case, Franchise Tax Board of California v. Hyatt, involved the relatively boring question of whether Nevada is constitutionally immune from being sued in California state courts. That issue has constitutional implications because of the dual sovereignty structure of the U.S. government—states retain certain powers notwithstanding their union under a single federal government.

In 1979, the Supreme Court ruled in Nevada v. Hall that states could decide for themselves whether to grant or deny other states immunity from suit in their courts, on the rationale that the issue wasn’t discussed by the framers of the Constitution and nothing in the Constitution either expressly or impliedly limits one state’s power to authorize its courts to hear cases against another state. In this week’s decision, a 5-4 majority overturned that 40-year old ruling.

Regardless of which court got the immunity question right, this decision is significant. When the Supreme Court overrules a prior decision under the Constitution, which happens from time to time, it essentially alters the meaning of the Constitution itself. The Constitution is ambiguous and contains all sorts of vague terms. Absent a constitutional amendment, what the Supreme Court says it means is virtually set in stone. In Hyatt, therefore, five individuals single-handedly changed an established reading of the Constitution—and the rights of litigants to sue states in other states’ courts—for good. (Or at least until a new majority takes hold of the court over the next generation or two.)

There are all sorts of virtues—and vices—attendant to what’s known as stare decisis—i.e., respect for prior judicial precedent, which is why the court might have upheld Hall rather than overrule it. But the main reason that Supreme Court decisions are rarely overturned is stability. As Justice Breyer explained in his dissent in Hyatt, “[l]egal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; . . . and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.”

The value of adhering to decisions for the sake of stability threads throughout the law. Prisoners wrongly convicted of crimes cannot willy-nilly get a new trial, for example—even upon discovery of new evidence that would exonerate them. The rationale? The criminal justice system cannot sustain itself if jury verdicts are constantly susceptible to afterthoughts—even if some verdicts end up being wrong, leaving people deprived of their constitutional right to liberty or, in capital cases, even life.

At the Supreme Court, the usual rule is to disturb settled precedent only in special circumstances. A neutral rule for implementing this standard might be something like: “We as a Supreme Court will overturn settled precedent only unanimously—or not at all.” If a decision is patently erroneous—such as the court’s horrid tolerance of racial segregation in the 1896 Plessy v. Ferguson—then it can be expected that the nine sage justices of the Supreme Court will agree on a single, correct meaning of the Constitution and overrule the old, wrong one.

Barring crystal clarity, vague constitutional language regularly prompts an array of equally valid interpretations on the court. Stare decisis is an honorable way to break that tie. Otherwise, the Supreme Court becomes fickle and political. And America has more than enough politicians in the mix already.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).