Now that Alabama has banned abortion, what happens next?
First, what doesn’t happen: abortion is banned in Alabama (or anywhere else). Because the Alabama law is flagrantly in conflict with Supreme Court precedent, it will immediately be put on hold by the first court to review it.
The law’s backers understand this. The explicit purpose of the law is to challenge that precedent, Roe v. Wade, now that there is probably a pro-life majority on the Supreme Court.
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But the path to that challenge will have many twists and turns.
First, it’s worth noting that Alabama’s strategy is one of two such strategies to ultimately make abortion illegal. It’s a frontal challenge: strike down Roe.
The other strategy is the piecemeal approach reflected in the six-week abortion bans (ingeniously propagandized as “heartbeat bills”) that have recently passed in Georgia, Mississippi, and Ohio.
Theoretically, those laws could be upheld even if Roe is not overturned. Rather than challenge Roe directly, six-week bans and other measures aim to chip away at abortion rights until the right itself is so difficult to exercise that it becomes almost irrelevant.
Legally speaking, six-week bans—and TRAP (targeted regulation of abortion providers) laws, waiting periods, forced ultrasounds, and other restrictions —are all about the nebulous standard of “undue burden,” announced in 1992’s Planned Parenthood v. Casey case.
In that case, the Court’s moderates said that abortion could be restricted and regulated as long as those regulations do not place an “undue burden” on women seeking abortions.
What that means, of course, is subject to interpretation.
Are a series of medical restrictions that have no basis in science an “undue burden”? In 2016, the court said yes, and struck down Texas’s TRAP law.
What about requiring abortion providers to have admitting privileges at a hospital? Earlier this year, a 5-4 majority on the court halted enforcement of a Louisiana law requiring just that. But Justice Kavanaugh, dissenting, said that because the four doctors who provide abortions in Louisiana (that’s right—four in the entire state) had 45 days to gain admitting privileges, there was no “undue burden” and so the law should be allowed to take effect.
What about banning abortions after six weeks?
Given that many women don’t even know they’re pregnant at the six-week mark, this certainly seems like an “undue burden” on exercising a constitutional right. Indeed, such bans were considered fringe ideas only five years ago, even by Republicans.
Then again, maybe women should get pregnancy tests as soon as they miss a period. That’s a burden, to be sure, but is it “undue”? Depends on who you ask.
Which of these two strategies—direct attack, or piecemeal chipping away—will prevail?
A lot will depend on luck and timing. Challenges to the six-week bans are already pending; they may reach the court first. On the other hand, the Alabama law is quite straightforward; it could speed through district and circuit courts and sprint up to the Supreme Court ahead of the six-week bans.
It’s also possible that the court will consolidate the cases, reviewing the piecemeal bans and the total ban at the same time.
There is no way to predict how this process will unfold. It depends on court schedules, which organizations are behind which lawsuits, and a hundred other variables. That’s just how the system works.
What will be the ultimate result?
First, it’s worth noting that the court will first have to review the preliminary injunctions against the laws in Alabama, Georgia, Mississippi and Ohio. The standard for such injunctions is different from the standards for the underlying case, and favors putting the law on hold. To take a recent example, the Supreme Court upheld injunctions against Donald Trump’s “Travel Ban,” temporarily stopping it from going into effect, but then upheld the ban itself a few months later.
In the abortion ban cases, if the Louisiana case is any guide, it’s likely that the court will enjoin all of these bans, partial and total, while the cases proceed. If the bans were to go into effect, clinics would close, and, most importantly, women would not be able to receive medical care that is, for now anyway, their constitutional right to receive. That’s the kind of irreparable harm that courts take into account.
Ultimately, though, the court will have three options.
First, it may overturn Roe and Casey, and end the federal right to abortion. Yes, these cases are venerable Supreme Court precedents, but in a recent case, Justice Thomas, writing for a 5-4 majority, managed to wave away the Court’s doctrine of respecting precedent —known as stare decisis —with only 300 words of prose. His test for respecting precedent was so strict that almost no precedent could pass it, least of all Roe.
In short, despite all the hand-waving about precedent that Justices Kavanaugh and Gorsuch did at their confirmation hearings, it seems clear that the conservative majority takes a very light view of precedential authority, and would have little trouble dispatching Roe —which Justice Kavanaugh called part of the “tide of freewheeling judicial creation of unenumerated rights” just a year before his confirmation.
Call this the Justice Thomas approach.
Second, the court may uphold Roe and Casey but accept the six-week bans and other such laws as not being “undue burdens.” This would mean a loss for Alabama but a win for Georgia, Mississippi, and Ohio, and more importantly a win for the chip-away strategy in general. Call this the Justice Kavanaugh approach.
Or, third, the court may uphold Roe and Casey and strike all of these bans down. That seems extremely unlikely, given Justice Kavanaugh’s dissent in the Louisiana case, and the fact that Kavanaugh and Gorsuch were carefully vetted by the extreme religious fundamentalist Leonard Leo and his cronies at the Federalist Society. It would be a massive failure on Leo’s part if his hand-picked arch-religious-conservatives bucked religious dogma, bucked expectations, and bucked the entire Christian right to uphold not only Roe but Casey’s “undue burden” requirements in this way.
Then again, it’s possible that Chief Justice Roberts, growing into his new role as the court’s swing vote, might join with its liberals as he occasionally does (though most of the time does not) and uphold precedent. If you like, you can call this the Chief Justice Roberts Of Liberals’ Dreams approach. Hey, it could happen.
Finally, as important as reproductive rights are, these challenges to Roe go even further. The same strategies being used against abortion rights are also being used against same-sex marriage, voting rights, and other civil rights. Just like Roe, the same-sex marriage precedent, Obergefell v. Hodges, is highly vulnerable to Justice Thomas’s unprecedented test for precedents.
And just like Roe, Obergefell has already been chipped away; for example, Justice Gorsuch in a 2017 dissent argued that the state of Arkansas could refuse to list both same-sex parents on their child’s birth certificate, while automatically listing both opposite-sex parents, even when the child was not biologically related to them. Just because gay people can marry, Gorsuch wrote, it doesn’t mean they get all the same benefits of marriage as straight people do.
So the incrementalist Kavanaugh approach would work just as well against marriage equality as it does against abortion.
Whichever of these options the Supreme Court eventually takes, it’s clear that what comes next for Alabama’s abortion ban are a whole lot of lawsuits. And if conservatives win those lawsuits, they could take away the rights that millions of Americans think they possess today.
