On Tuesday, the Alabama Senate passed and on Wednesday Gov. Kay Ivey signed into law the most restrictive abortion bill in the country – a near-total ban on all abortions. According to Eric Johnston, president of the Alabama Pro-Life Coalition, who helped craft the legislation, the bill was specifically designed to go to the Supreme Court and challenge Roe v. Wade.
The new law would become enforceable in six months and would carry stiff penalties for those caught violating it. For example, doctors could face up to 99 years in prison for performing an abortion in the state. So what are the chances the law will be implemented anytime soon? Next to none.
Facts first: Given the amount of legal challenges it’s likely to face, along with past rulings on other anti-abortion legislation, the law will probably be tied up in court for years, delaying enforcement. The Supreme Court has discretion over what cases it hears, and there is no guarantee the justices would take up the Alabama ban if it is struck down in lower courts.
The American Civil Liberties Union and Planned Parenthood have already announced plans to file lawsuits against the Alabama law, arguing it’s unconstitutional. These organizations, as they have in the past, will likely also ask federal district courts for a preliminary injunction or temporary restraining order to prevent the law from going into effect, while arguments over the constitutionality of the law work their way through the courts.
That means a federal judge would decide whether to temporarily block the law or allow it to take effect. US district judges routinely block anti-abortion laws from taking effect while litigation is underway.
“There is nearly 50 years of precedent that says this law is unconstitutional,” Elisabeth Smith, chief counsel of state policy and advocacy at the Center for Reproductive Rights, told CNN on Wednesday. “Regardless of what district judge hears this case, there is no argument that Alabama can make that this law is constitutional.”
From there, whichever side loses will likely file an appeal, which would be heard by the 11th US Circuit Court of Appeals, which covers Alabama, Georgia and Florida.
Since Trump’s inauguration in 2017, six other states – Georgia, Ohio, Mississippi, Kentucky, Iowa and North Dakota – have passed laws banning abortions when a fetal heartbeat can be detected, which occurs as early as six weeks. According to CNN legal analyst Joan Biskupic, “not a single one” of those recent abortion restrictions “is in effect right now.”
“Pre-viability bans (bans on abortions prior to 24 weeks) like the Alabama ban … have never been enforced,” said Smith. “Some of them have been enacted by a state but none of them have been enforced. That’s because of the litigation that has stopped them from going into effect.”
Further along in federal court litigation is a Louisiana law requiring abortion providers have admitting privileges to hospitals within 30 miles of the procedure. That case could be heard by the Supreme Court in 2020, six years after the law was passed.
