The state of Alabama has just enacted a sweeping ban on a woman's right to choose abortion in clear and willful violation of Roe v. Wade. It exempts only women whose health would be placed in serious danger by carrying to full term, and it imposes life imprisonment on doctors who follow their Hippocratic oath by providing needed medical services.
If the goal of this benighted legislation is to get the Supreme Court to reverse its decision in Roe v. Wade, it will likely backfire. Opponents of the law will challenge it in Federal District Court. A district court judge has no choice but to apply Roe v. Wade because that is the current law, and district court judges are bound by Supreme Court precedents. The same is true for the United States Court of Appeals. So the law will likely be struck down by the district court and that decision will be upheld by the court of appeals. The state of Alabama will then seek a writ of certiorari —a discretionary decision that requires four justices to agree to take the case. It is unlikely that four judges will vote to hear the case unless they are assured there is a fifth justice to constitute a majority.
The current court consists of three groups when it comes to a woman's constitutional right to choose. There are the four liberal justices—Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. They will surely vote to uphold Roe v. Wade. There are two or three justices—Clarence Thomas, Samuel Alito, and perhaps Neil Gorsuch—who might, in an appropriate case, vote to overrule or seriously restrict Roe. Then there are two justices—John Roberts and Brett Kavanagh—who would probably have voted against Roe as an initial matter back in 1973, but who regard Roe as a binding precedent. These two swing justices are unlikely to vote for a total overruling of the core principles of Roe. They believe in the importance of precedent, particularly a precedent like Roe that has been reaffirmed on numerous occasions over the past nearly half a century.
It is unlikely, therefore, that those who pushed for the enactment of the sweeping Alabama statute will succeed in the courts of law. They may, however, succeed in encouraging the trend toward limiting Roe v. Wade. Several other states have enacted restrictions on a woman's right to choose that could well be upheld by lower courts and even by the current Supreme Court. It is speculative to try to predict whether the Alabama ban will help or hurt the legal cause of those who advocate the end of all abortions. Only time will tell.
From a political point of view, the Alabama statute is likely to hurt Republicans in the 2020 election. Most Americans oppose a total ban on all abortions and the criminalization of doctors who perform them. Threatening doctors and nurses with imprisonment for performing what they believe are medically warranted abortions will not garner votes among suburban voters who switched from Obama to Trump in 2016 and then switched to the Democrats in 2018. These swing voters are likely to be moderate when it comes to abortion, favoring neither advocates of no restrictions on choice (even on late-term abortions) nor those who advocate no choice at all.
So for now, the theoretical right of a woman to choose abortion under most circumstances is not in immediate danger; however, in practice, this may not be the case since many women who live in states with severe restrictions cannot travel to places where abortion is more permissive. If President Trump were able to appoint several new justices—especially Judge Amy Coney Barrett, who apparently believes there is a constitutional "right to life" of a fetus—the right to choose abortion could be seriously endangered. If the High Court were to recognize a constitutional right of life, such a decision would raise questions about the power of any state to violate such a right by allowing a woman to choose abortion.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against The Democrats Impeaching Trump, Skyhorse Publishing, 2019.
The opinions expressed in this essay are the author's own.
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