Federal Court Blocks Alabama Abortion Law

A Federal District court Judge in Alabama has blocked implementation of that state's latest attempt to challenge Roe v. Wade

A Federal District Court Judge in Alabama has blocked the implementation of an abortion law signed into law in Alabama earlier this year that is widely viewed as a direct challenge to the precedent in Roe v. Wade and its progeny:

A U.S. District Court judge on Tuesday blocked Alabama’s controversial near-total abortion ban — which does not allow exceptions for victims of rape and incest and would make it a felony for doctors to perform the procedure unless a woman’s life was at risk — from going into effect.

Passage of the law in May was celebrated as a major victory for the antiabortion movement. The bill’s author, state Rep. Terri Collins, has said it was intended to serve as a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court decision that the Constitution protects a woman’s right nationwide to have an abortion. Collins earlier said she wanted the law to be strong enough to force federal court intervention — something she and others hope will lead to national restrictions on abortion.

“Today’s ruling is both expected and welcomed,” Collins said in an interview, explaining the decision “is merely the first of many steps on that legal journey. I remain confident that our mission will be successful and appreciate the support of millions of citizens who support our effort to preserve unborn life.”

The American Civil Liberties Union, which has been active in lawsuits against the many states that have passed abortion restrictions in recent months, tweeted that the decision means “none of the state abortion bans passed earlier this year are in effect” and listed Georgia, Missouri, Alabama, Arkansas, Kentucky, Ohio and Utah as having similar laws that have also been blocked.

The Alabama bill was tumultuous from the start, with an argument breaking out during one of its introductions. The bill, which did pass 25-6, is even more restrictive than prior state-level abortion laws, and it includes a penalty of up to 99 years in prison for doctors who perform abortions. Six of the Senate’s Democrats voted against the bill — one abstained — and they staged a filibuster late into the night in May after debating the bill for more than four hours. The divide included hundreds of protesters outside the Montgomery Capitol, including women who had given birth after rape and incest and supported the bill. Some abortion rights advocates dressed in “Handmaid’s Tale” red robes, with one captured in a viral photograph giving the middle finger to the building as senators debated inside.

Both sides reacted with similar passion on Tuesday to U.S. District Court in Middle Alabama Judge Myron H. Thompson’s decision to issue an injunction against the law going into effect.

In his ruling Judge Myron H. Thompson, who was appointed to the bench in 2013 by President Obama, found that the ruling violated both the Constitution and the Supreme Court’s existing precedent on abortion rights as established in Roe v. Wade and Planned Parenthood v Casey. Those precedents were effectively reaffirmed in Whole Women’s Health v. Hellerstadt et al, a case in which a 5-3 Supreme Court struck down a series of Texas laws that were clearly designed to make it difficult for abortion clinics to operate in the state.

Under these precedents, women generally have an unrestricted right to an abortion during the first and second trimesters. It is only during the third trimester when the fetus has reached the point where it could possibly survive outside the womb, that the courts have recognized that the states have an interest in protecting fetal life that permits restrictions on the right to an abortion. In those cases, abortions are generally only permissible if the mother’s life is in danger or if there is a fetal deformity that would make it impossible for the fetus to survive outside the womb that the law recognizes a right to terminate the pregnancy. In that respect, it’s worth noting that the vast majority of abortions in the United States take place in the first trimester and that most of those take place within the first eight weeks of pregnancy. This suggests that the Court in Roe more or less got the analysis regarding the timing of abortion correct and that there’s no good reason to upset that precedent.

Under Alabama’s law, no woman would be able to get an abortion anywhere in the state except in those cases where such a procedure was medically necessary to save her life. This law, therefore, differs significantly from other recently passed laws that have sought to ban abortions after about 20 weeks or even those that purport to ban the procedure after the detection of a fetal heartbeat. In those cases, a woman would at least theoretically be able to get an abortion in the first trimester and for a short time into the second trimester. The Alabama law would not even make it possible to get an abortion during that period, which is when the vast majority of abortions in the United States take place in any case. Because of these precedents, Judge Thompson essentially concluded, mean that the Alabama law cannot be allowed to go forward.

As with many similar laws that have been passed in Republican-controlled states, it’s clear that the Alabama law was not passed with the intention that it become law. Instead, with the accession of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, they were passed with the intention of directly challenging Roe and its progeny in the hope that the new conservative majority on the Court would at the very least limit the legal impact of those rulings in a way that would make it easier for states to regulate the practice, if not ban it completely. For the moment at least, that effort has been blocked.

From here, the case will likely be appealed to the U.S. Court of Appeals for the 11th Circuit and, from there, to the Supreme Court. Alternatively, Alabama could seek to sidestep the Circuit Court with a direct appeal to the Supreme Court. Such appeals are rarely granted, though, and the fact that the law is on hold likely means that the Justices would be inclined to let it, and other laws like it, make its way through the Courts of Appeal. This would make it unlikely that the case would make its way to the Supreme Court in time for a ruling during SCOTUS’s current term. Instead, it’s something that the Justices will likely be called upon to deal with in the term that begins next October.

Here’s the opinion:

Robinson Et Al v. Marshall … by Doug Mataconis on Scribd

FILED UNDER: Law and the Courts, U.S. Constitution, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

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