Patterico's Pontifications

5/16/2019

Alabama Passes Vehicle to Challenge Roe v. Wade and Casey

Filed under: General — Patterico @ 6:41 am



Alabama has passed an anti-abortion law that begins at the moment of conception and contains no exceptions for rape or incest:

Alabama’s governor on Wednesday signed into law a measure to ban most abortions in the state. But the Legislature’s approval and the governor’s signature did not immediately outlaw the procedure, and it is far from clear when, or even if, the measure will ultimately take effect.

. . . .

The bill that the Republican-controlled Legislature overwhelmingly passed sought to prohibit abortions at every stage of pregnancy. It includes an exception for cases where a woman’s health is at “serious” risk, but lawmakers rejected a proposal to add exceptions for cases of rape or incest.

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

. . . .

[A]bortion services will still be available in Alabama for the time being. At the earliest, the measure will take effect in six months.

During that six months, the law will inevitably be enjoined by the courts. The law is not intended to be a serious ban on abortion, but a vehicle to challenge Roe v. Wade and the case that upheld it: Casey v. Planned Parenthood.

There was once a majority of Justices ready to overturn Roe. Then Anthony Kennedy got cold feet and flipped his vote.

I doubt we’ll ever see such a majority again, although nobody can tell the future. The current group looks to me like a set of incrementalists, uneager to upset the applecart but happy to chip away at abortion rights. This law does not chip away at them but bludgeons them to death. My guess is that a U.S. District Judge will quickly put the law on hold, the 11th Circuit will uphold the decision, and the U.S. Supreme Court will not take the case.

I’ve been wrong before and I could be wrong about this.

[Cross-posted at The Jury Talks Back.]

67 Responses to “Alabama Passes Vehicle to Challenge Roe v. Wade and Casey”

  1. The Wired article about this issue is interesting. Part of what is happening here is that Alabama glommed onto a ‘heart beat’ being detectable at 6 weeks by the latest advances in ultrasound science and that is an indication that the fetus is ‘viable’. But those words ‘heart beat’ and ‘viable’ are simply comforting descriptors used by OB/GYNs to describe the fact that the fetus is developing normally and has the rudimentary start to a circulatory system.

    Xmas (eafb47)

  2. Crap, I confused Georgia’s 6 week bill with the Alabama one.

    Xmas (eafb47)

  3. I’ve been wrong before and I could be wrong about this.

    The wonderful thing about being a pessimist (concerning abortion or anything else, really) is that the surprises can only be pleasant. Optimists only set themselves up for disappointment when their expectations aren’t met.

    Gryph (08c844)

  4. Pat freaking Robertson of The 700 Club calls the Alabama law too extreme

    Dave (1bb933)

  5. 4. Anyone who cites Pat Robertson as an authority on Christianity hasn’t been paying attention.

    Gryph (08c844)

  6. Who said anything about Christianity?

    Dave (1bb933)

  7. Who said anything about Christianity?

    It’s the sixth word on the first line of the article you linked. And what makes him Pat freaking Robertson” to you, if not his Christianity?

    nk (dbc370)

  8. Everybody says that the law is too extreme and its purpose is not to be upheld but to have the Supreme Court re-examine Roe v. Wade. Including its author.

    And is it not written, “Thou shalt not tempt the Supreme Court, your Lord”?

    nk (dbc370)

  9. It’s the sixth word on the first line of the article you linked.

    The sixth word is “Christian”, not “Christianity”. I don’t think noting that someone is Christian is the same as “citing [them] as an authority on Christianity”.

    As far as I’m concerned, the only “authority on Christianity” died about 2000 years ago.

    And what makes him Pat freaking Robertson” to you, if not his Christianity?

    He has consistently espoused hard-line social conservative, including anti-abortion, positions. It is very out of character for him to oppose some restriction on abortion.

    If, say, Ann Coulter opposed some immigration restriction, I might use the same construction in noting it.

    Dave (1bb933)

  10. This is the natural response to the abortion on demand left that has passed infanticide bills in several states.

    Return the right to the states where it belongs. Allow the people to decide. The Constitution doesn’t grant the right to abortion.

    NJRob (4d595c)

  11. Everybody says that the law is too extreme and its purpose is not to be upheld but to have the Supreme Court re-examine Roe v. Wade. Including its author.

    Given that the Supreme Court appears to have only two justices who might be solidly behind overturning Roe (in large measure because Donald Trump broke his campaign promise to appoint pro-life judges), it seems like an odd strategy to put enact a law that even long-time abortion opponents consider unreasonable, and expect them to uphold it.

    It seems more like a publicity/fund-raising gimmick, frankly.

    Dave (1bb933)

  12. put

    Dave (1bb933)

  13. It is “Cry havoc, and let loose the dogs of war”. It will harden hearts on both sides. Just like the New York atrocity which went the other way.

    I’m not sure how I feel about it. I want to win, not lose gloriously.

    nk (dbc370)

  14. We’re not going to ban abortion, we’re going to ban safe, legal, abortions that are available to the poor and middle class.

    Time123 (daab2f)

  15. Time123, can’t the identical argument be used in relation to bans on drug abuse, child porn, human trafficking, murder…you name it?

    Someone with enough money can get around virtually any law by travelling to someplace where the law doesn’t apply, contracting someone else to perform the illegal act, hiring the right lawyers, etc. That is usually not viewed as a reasonable argument against the law.

    Even if you can’t stop every abortion, raising the cost will reduce the number – among the wealthy too.

    Dave (1bb933)

  16. The purpose of the 50 states was to allow different states to be incubators of ideas. Time to finally allow one that isn’t a progressive utopia to do so.

    NJRob (4d595c)

  17. Mr. Last has a point:
    I would now like to make the case to you that the Alabama abortion law is the most damaging development to the pro-life movement in decades.
    Let’s start with this: As Kim Wehle explains, this law will never be put into effect. It will be overturned at the appellate level. It will almost certainly be denied certification by the Supreme Court. It will then disappear into the pro-choice direct mail machine where it will raise tens of millions of dollars for the groups who want unlimited, unfettered abortion on demand.
    It will not prevent a single abortion. It will not save the life of a single unborn child.
    This is the key: The Alabama law is nothing more than virtue signaling. It has nothing—nothing whatsoever—to do with curtailing actual abortions being performed in the real world.

    Paul Montagu (7968e9)

  18. Paul,

    without the will to overturn the horrific act of murdering the unborn, there will never be a future. You call it virtue signalling, I call it progress and upholding the will of the people of Alabama.

    NJRob (4d595c)

  19. ime123, can’t the identical argument be used in relation to bans on drug abuse, child porn, human trafficking, murder…you name it?

    Someone with enough money can get around virtually any law by travelling to someplace where the law doesn’t apply, contracting someone else to perform the illegal act, hiring the right lawyers, etc. That is usually not viewed as a reasonable argument against the law.

    Even if you can’t stop every abortion, raising the cost will reduce the number – among the wealthy too.

    good point. This would reduce the overall number of abortions.

    Difference being that we can look at what the situation was in the US before Roe V. Wade.
    – Poor women had back alley abortions.
    – Well to do women when on a vacation where they came down with a “slight stomach bug”.

    Time123 (457a1d)

  20. “Even if you can’t stop every abortion, raising the cost will reduce the number – among the wealthy too.”

    Comprehensive sex ed will also reduce the number of abortions, but somehow never seems to be a priority, in fact it’s often the reverse. See Texas’ abstinence only program for an example.

    Davethulhu (fab944)

  21. Comprehensive sex ed will also reduce the number of abortions, but somehow never seems to be a priority, in fact it’s often the reverse. See Texas’ abstinence only program for an example.

    Davethulhu (fab944) — 5/16/2019 @ 11:13 am

    And yet, Texas which has almost 50% more population than the state of New York, has almost 50% fewer abortions than New York which has your “comprehensive sex ed” program.

    NJRob (4d595c)

  22. You call it virtue signalling, I call it progress and upholding the will of the people of Alabama.

    I call it a short-circuiting of the movement because, nationally, 57% of the pro-life crowd are against a ban with no exceptions for rape or incest, so I’m not buying this “will of the people” business, not when 58% of Alabamans say that it should be illegal in all or most cases. Given that a majority of pro-lifers are in favor of the rape-incest exception, I doubt there’s a majority of Alabamans who favor the “illegal in all cases” position, which is now law. It seems to me that this was a ramrodding of a law against the will of the majority.

    Paul Montagu (7968e9)

  23. I think Patterico is dead right. On the current court only Alito and Thomas seem like solid votes to overturn Roe, Gorsuch and Roberts seem unlikely, and Kavenaugh is in the wind. The court needs 4 votes to take a case, and unless the Circuit Court goes rogue they won’t have that.

    There is the possibility that the liberal wing will vote to take the case, hoping to reaffirm Roe/Casey 7-2, and put the dissenters out of their misery.

    This is a badly timed effort.

    Kevin M (21ca15)

  24. Gotta agree with NJRob on this one, the data I’ve seen shows that more Sex Ed doesn’t help. Access to contraception does though.

    Time123 (457a1d)

  25. OTOH, a WaPo chart of states with restrictions shows that states with 319 electoral votes have imposed at least one restriction on abortion.

    Kevin M (21ca15)

  26. Then Anthony Kennedy got cold feet and flipped his vote.

    Allegedly, he was promised by Souter that he’d have Souter’s vote for common-sense restrictions if Kennedy would vote to uphold Roe. Souter, of course, lied.

    Kevin M (21ca15)

  27. It seems more like a publicity/fund-raising gimmick, frankly.

    No, I think it’s people who believed all the fund-raising emails they got about how Trump would appoint pro-life judges and then heard all the Democrat fund-raising about how he had appointed pro-life judges. The fact that he had not is lost on them. They actually expect the Court to vote 5-4 to overturn Roe and with they don’t take the case (or worse, take it and vote 2-7) they are going to be even more upset.

    Kevin M (21ca15)

  28. My fingers are so dyslectic that they type “with” instead of “when”

    Kevin M (21ca15)

  29. “And yet, Texas which has almost 50% more population than the state of New York, has almost 50% fewer abortions than New York which has your “comprehensive sex ed” program.”

    Texas has a higher teen pregnancy rate than New York (in fact, only two states are higher). They would have even fewer abortions with a better sex education program. Which was my point.

    Davethulhu (fab944)

  30. edit above: *only two states are higher than New York

    Davethulhu (fab944)

  31. NJRob (4d595c)-

    Return the right to the states where it belongs. Allow the people to decide. The Constitution doesn’t grant the right to abortion.

    If it’s immoral to allow abortion at the national level, it’s just as immoral at state level. Government shouldn’t sanction killings at any level. My only problem with the Georgia and Alabama laws are that they don’t go far enough. Why isn’t the doctor’s co-conspirator (the woman seeking the abortion) charged with the same crimes?

    Rip Murdock (755a7d)

  32. I am effing amazed that this is a civil and INFORMATIVE discussion. What went wrong?

    Kevin M (21ca15)

  33. Again, I suggest the following constitutional amendment:

    1. The right of an adult woman to an abortion during the first trimester of pregnancy shall not be abridged.
    2. No public funds may be used to provide an abortion.
    3. Further regulation of abortion is devolved to the several States.

    As long as we pretend that this IS a constitutional right, we should write it down.

    Kevin M (21ca15)

  34. > No public funds may be used to provide an abortion.

    So a woman on medicaid, or the state equivalent, who is pregnant with a pregnancy that doctors have a reasonable belief will kill her if not aborted, cannot have an abortion unless she has a gofundme to raise the money?

    I mean, that’s what this sentence literally says — *no* public funds can be used to provide an abortion, under any circumstances.

    aphrael (3f0569)

  35. nk, at 8: that position (the one you are describing) is absurd on its face.

    “we’re going to pass a law that we don’t actually want to go into effect, so that the supreme court will approve it, which means it will go into effect.”

    anyone maintaining such a position is either lying or an idiot.

    aphrael (3f0569)

  36. anyone maintaining such a position is either lying or an idiot.

    He concedes that the whole effort is agitprop a few posts further down…

    Dave (7242bc)

  37. Kevin M. #33-

    So, your concern is the funding source, not the abortion itself?

    Rip Murdock (755a7d)

  38. Yes, no funds. Maybe Planned Parenthood, or another non-profit, will cover the need.

    Kevin M (21ca15)

  39. No, Rip, I am not on either wing. Only about 30% of the population is, evenly spit.

    I’m just tired of the argument that distorts our politics and want to end it.

    Kevin M (21ca15)

  40. aphrael,

    Public funds that pay for a emergent procedure that happens to include/require an abortion are not spent FOR an abortion. In any event, no doctor could allow a person to die for fear of not being paid and keep his license.

    Kevin M (21ca15)

  41. aphrael #35.

    The position of the propoeents of this law according to what nk said #8 amounts to:

    “we’re going to pass a law that we don’t actually want to go into effect, so that the supreme court will approve it, which means it will go into effect.”

    The idea maybe could be that the Supreme Court will declare that law unconstitutional, but, in the process, will overrule Roe v Wade and say a law would be constitutional if it said…..

    They enacted almost the most extreme position imaginable because it makes the strongest opponents happy, while everybody else can say this won’t go into effect. Kind of like the Republican House repeatedly repealing Obamacare, Very few wanted to leave the law in that state.

    But this kind of law is not a vehicle to overrule Roe v Wade. A proper vehicle is a law
    that, in restricting or handicapping abortion, goes slightly beyond current law as understood, and gets overturned ina split decision by an Appeals Court and then appealed to the Supreme Court and te Supreme Court takes the opportunity to overrule Roe v Wade.

    Ideally, it should present an issue where Roe is unworkable and there no basis to decide by analysing further, but they can’t do it while upholding Roe, because Roe stands on nothing, so they will have to modify Roe in any case.

    If you want to know what is a vehicle, look at the history of cases where a previous ruling was overturned. One happened just this week.

    Sammy Finkelman (3fda43)

  42. 38 Kevin M (21ca15) — 5/16/2019 @ 12:51 pm

    Maybe Planned Parenthood, or another non-profit, will cover the need.

    And cut, or limit the increase of, the salary and perks of its chief executives?

    Would the National Rifle Association do a thing like that?

    Sammy Finkelman (3fda43)

  43. Q.

    1. Would a 17-year old girl be entitled to an abortion?

    2. Could a 17-year old girl be forced by her mother to undergo an abortion against her will?

    (That’s actually current law, I think.

    Prohibiting that might be a nice vehicle to try to overturn Roe v Wade, if they couls find a case. Like with Roe itself courts would avoid declaring it moot.)

    Sammy Finkelman (3fda43)

  44. Ireland used to criminalize travel to another jurisdiction to obtain an abortion.

    Sammy Finkelman (3fda43)

  45. @39. Never underestimate the idiocy of the myopic to argue over the crabgrass in the front yard while the house behind them is on fire.

    Oh yes… in case you haven’t heard: ‘no collusion.’

    DCSCA (797bc0)

  46. Would a 17-year old girl be entitled to an abortion?

    This is, even now, a state issue.

    Kevin M (21ca15)

  47. > Very few wanted to leave the law in that state.

    I have no respect at all for legislation which is intended to not go into effect, and which is passed by legislators who *want* it not to go into effect.

    “We have the power to make law, so we’re going to make a law we actually don’t want to be the law”.

    It’s an abuse of office, in my view.

    aphrael (3f0569)

  48. > Public funds that pay for a emergent procedure that happens to include/require an abortion are not spent FOR an abortion

    tell that to the activists who sue and the judge who entertains the lawsuit. better yet, codify that explicitly in the law up front rather than leaving it subject to later lawsuits.

    aphrael (3f0569)

  49. tell that to the activists who sue

    So, you think that a judge would deny chemotherapy to a pregnant woman until delivery?

    The problem is the MOMENT you put an exception into the law, the OTHER activists will drive a truck through it. “Well, she has a hangnail, and the weight of the pregnancy exacerbates it, and it could become gangrenous, so an abortion is in order.”

    Kevin M (21ca15)

  50. > you think that a judge would deny chemotherapy to a pregnant woman until delivery?

    I think anyone who claims to be a textual ltieralist who reads “no public funds shall be used for [x]” to allow public funds to be used for an instance of x which is required by some other thing y is … not a strict constructionist.

    So yes, I think there will be judges who would deny chemotherapy to pregnant women until delivery. Because a huge part of the mission of the conservative judicial movement has been, for half a century, to ensure the appointment of textual literalists.

    After all, if the people who wrote the law wanted public funds to be used for abortions which were required by medical emergencies, they would have said so. They didn’t, they said no public funds for abortions, and the text of the law is all that matters, right?

    aphrael (3f0569)

  51. I have no respect at all for legislation which is intended to not go into effect, and which is passed by legislators who *want* it not to go into effect.

    This seems rather harsh.

    The repeal of Obamacare would have required satisfying several groups of legislators with different goals in both the House and the Senate. It was understood by almost everyone that the final form of the legislation would need to be worked out in a House/Senate conference committee, which could only convene after both houses passed some form of repeal. Since the Senate would be the more difficult (impossible, as it turned out) of the two chambers, the House bill was generic, and should be viewed as part of a longer, multi-step negotiating process. Given the White House’s total abdication of leadership, there was not much else they could do.

    Dave (1bb933)

  52. Aphrael,

    Do you not understand the refusal to add exceptions is due entirely to abortionists using “health” concerns to justify any abortion?

    And why would all those people who decry such a terrible situation as you describe not contribute money to a fund that would replace public financing?

    Kevin M (21ca15)

  53. On the positive side, I guess we can all agree that the heartbeat law is a moderate compromise between the two maximalist positions and that should be the way Roe v Wade is overruled.

    NJRob (4d595c)

  54. I don’t know all the ins and outs of the abortion debate but I do know abortions have always been with us and always will be. Consider the family member who was impregnated by her pastor as a teen. That is, she was raped. Yes this really happened, to a family member, in the pre-Roe days. I’ll spare you the details but the decision whether to terminate the pregnancy or not was agonizing. There were no good options. The pastor was spared any consequences of his actions as is so often the case with sexual abusers. I don’t think any of us have really considered the implications of forcing girls in those situations to give birth.

    I do not believe evidence shows more restrictive abortion laws reduce the rate of abortions. In fact I believe the opposite. As we have seen from Prohibition and the War on Drugs, making things illegal does not reduce the demand for those things. If the goal is to actually reduce abortions, making them illegal will not have the desired effect. “safe legal and rare” was the best language. It’s too bad the Dems want to abandon it, but it is the best standard in a broken and imperfect world.

    anonymous please (52aed3)

  55. 55. Replace the word “abortion” with “murder” and it might dawn on you how specious and naive your arguments here are (but I won’t hold my breath).

    Gryph (08c844)

  56. 51. I think there will be judges who would deny chemotherapy to pregnant women until delivery. The question wouldn’t come up in that form because most doctors would not administer most chemotherapy to a pregnant woman, because it creates birth defects. They’d insist on an abortion before treatment. (the reason they don’t waut and see and do an abortion if the baby is missing an arm or a leg is that the women could refuse and they could get sued for malpractice)

    Now it can get a little bit more complicated. Some things callec chemotherapy don’t do that, there is a critical time, maybe the chemotherapy can be targeted, a premature birth can be scheduled – they try to work out things for women who strongly want the baby.

    Sammy Finkelman (3fda43)

  57. 55. anonymous please (52aed3)

    I do not believe evidence shows more restrictive abortion laws reduce the rate of abortions. In fact I believe the opposite. As we have seen from Prohibition and the War on Drugs, making things illegal does not reduce the demand for those things.

    It did, during Prohibition. It just didn’t reduce it to zero. This is a well known fact.

    http://www.nber.org/papers/w3675

    Alcohol Consumption During Prohibition – NBER

    …We find that alcohol consumption fell sharply at the beginning of Prohibition, to approximately 30 percent of its pre-Prohibition level. During the next several years, however, alcohol consumption increased sharply, to about 60-70 percent of its pre-prohibition level.

    Sammy Finkelman (3fda43)

  58. “We have the power to make law, so we’re going to make a law we actually don’t want to be the law”

    Congress does that all the time with expiration dates on continuing resolutions, tax provisions, the debt eiling and other laws.

    Sammy Finkelman (3fda43)

  59. Embryologists tell us that babies are human at birth. What crime is the baby guilty of that deserves the death penalty?

    Any excuse for killing a baby in the womb can also be used to kill a child or an adult out of the womb.

    I was told by a man who is said that he teaches ethics at a local college that I should commit suicide so that I wouldn’t be a burden to my family because I have Parkinson’s.

    WALSH: Three Reasons Why The ‘Rape And Incest’ Argument For Abortion Is Misleading, Disingenuous, And Wrong

    https://www.dailywire.com/news/47227/walsh-three-reasons-why-rape-and-incest-argument-matt-walsh

    Tanny O'Haley (09ed0e)

  60. Mr. Walsh makes only one valid point. That some women will lie about rape in order to get an abortion. Otherwise, he’s full of the contents of a colon.

    DNA can be preserved forever. In real life, and not just in Jurassic Park movies. There’s a case in the news every day about trace amounts of DNA left at a crime scene decades ago now convicting the perpetrator. An abortion will not protect the rapist if the baby’s DNA is kept as evidence.

    A pregnancy from rape is a continuation of the rape. Under the law in America, a woman has the right to use force likely to cause death or great bodily to stop a rape. At her trial, the jury is not asked to decide whether the rapist’s life is worth more than her right not to be raped. Likewise, we do not ask whether the life of the rapist’s child is worth more than her right not to be continuously raped for nine months. There’s got to be a point where you have to recognize the human rights of the woman too.

    nk (dbc370)

  61. or great bodily *harm*

    As for women lying about rape in order to get an abortion, the law has the same remedy as for a woman killing a man and falsely claiming that it was in self-defense. If it wants to apply it.

    nk (dbc370)

  62. nk,

    This is Walsh’s summary:

    We’ve established that pro-aborts focus on hard cases in order to distract from their real position, and that abortion restrictions will actually protect rape victims and help assist in bringing rapists to justice. Once we’ve qualified this discussion with those two crucial points, we can move on to addressing the specific question at hand: Should there be exceptions to allow raped women to get abortions? The answer is no.

    The pro-life case is rather simple. We believe that abortion should be outlawed because unborn humans are people and all people are endowed with inherent rights and dignities. There is no other reason to be pro-life. And if we’re wrong on either point — that unborn humans are people or that all people are endowed with inherent rights — then there is no reason to be pro-life at all.

    Help me understand your position:

    1. The first reason he gives is that most abortions occur because women (and I would add maybe their families) decide to abort for lifestyle reasons. I am not trivializing those reasons. Worrying how you will support a child is not trivial, but it is often a decision about how a baby affects your choices.

    2. on the second reason, we agree that his argument that “restrictions will actually protect rape victims and help assist in bringing rapists to justice” is overstated. There will be DNA, assuming the abortionist preserves tissue. There might be a significant chain of custody issue to work out.

    3. Reason 3 is that this is a human life. I think it is, and I think you do, too, but not everyone agrees. But if you feel that way, why is this reason not valid? Is it because of the “human rights of the woman”?

    DRJ (15874d)

  63. Oops. I got that wrong. Let me correct it.

    Embryologists tell us that babies are human at birth conception.

    Now that I’ve corrected it nk, I’ll ask the question again. What crime is the baby guilty of that deserves the death penalty?

    Tanny O'Haley (09ed0e)

  64. In every argument for abortion, replace the word “abortion” with “murder” and see if it doesn’t turn your stomach.

    Gryph (08c844)

  65. Yes, it is homicide.
    However, the law allows the defenses of justification and exoneration for some homicides.
    I think that stopping a rape is one of them.
    A pregnancy due to rape is a continuation of the rape, in my opinion. If a particular victim feels differently, God bless her, but that should be entirely her judgment, not the law’s.

    “Innocence” is not dispositive. You have the right to prevent people with an innocent state of mind from hurting you just as much as you have the right to prevent people with a criminal state of mind from hurting you.

    nk (dbc370)

  66. I don’t want to be too polemical about this, because I’m pretty sure that there are a lot of people who if they saw a child pointing a gun at them and about to pull the trigger they still would not shoot him first.

    nk (dbc370)

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