SAN FRANCISCO, USA – On Tuesday 14 May, Alabama’s Senate passed a bill that would ban abortion in Alabama and doctors found performing an abortion could face 99 years in prison.
Another governor recently signed a near-total abortion ban – The Washington Post states that Georgia’s Governor Brian Kemp signed an extreme “heartbeat bill” into law on 7 May – which prohibits abortion after a doctor can detect a “fetal heartbeat in the womb,” usually occurring at about six weeks.
A more frightening part of the law is it bars women from travelling out of state to receive abortions after six weeks, and if a woman is found responsible for her miscarriage she can be sent to prison as well. According to the Court of Appeals, this includes behavior like smoking, drug use, or other reckless behavior resulting in a miscarriage. Similarly, Business Insider reports that 1 in 4 first trimester pregnancies end in miscarriage, making this clause especially alarming. Additionally, if a woman performs her own abortion (similar to the coat-hanger days before Roe v. Wade), she could be charged with first-degree murder, resulting in life in prison or the death penalty.
In a difficult turn for criminal justice lawyers, Georgia’s law also gives personhood to the fetus, with the idea that it would be murder to kill a person. However, as Business Insider reported, this creates a headache for the legal system because it gives the foetus a right to due process, a fair trial, and legal representation separate from the mother. For pregnant women behind bars, it has yet to be determined whether, because their foetus committed no crime, they would need to be released from prison as their foetuses are being illegally held. Furthermore, because fetuses are legally people they will be counted in official population surveys, which Business Insider reports it could have implications for political representation.
Both Georgia and Alabama’s laws likely violate Roe v. Wade, the landmark case from 1973 that legalized abortion. Roe v. Wade does now allow any restrictions on abortion except in the interest of protecting the mother’s health or life, and finds restrictions unconstitutional if they place an “undue burden” on a woman legally seeking an abortion, and bans regulations or restrictions before the first trimester is over or when life is “viable” outside the womb.
Alabama and Georgia’s laws are not the first to challenge Roe v. Wade, but they signal a more aggressive attack on it. In the past, attacks tended to revolve around protecting the health of the mother, (in Texas’ 2016 case of requiring abortion clinics to have access to surgical centers, resulting in most abortion clinics in Texas closing), or have inched at the “viable” clause, moving earlier and earlier in their outlaw of abortion (Mississippi and Ohio has recently passed “heartbeat” bills).
However, there is a clear reason for the new aggressive push. Legislators are becoming bolder with their abortion laws in attempt to get one of the laws to the Supreme Court (who may choose not to hear it). Republicans are emboldened by the Supreme Court appointments of Neil Gorsuch and Brett Kavanaugh, and see the now conservative-leaning Supreme Court as an opportunity to overturn Roe v. Wade at the country’s highest level. So far, most extreme abortion bills (like Iowa, North Dakota, and Kentucky’s attempts) have been overturned or blocked by the justice system.
In response, The Washington Post reports more liberal states are hurrying to pass laws or amend state constitutions that will protect for an overturn of Roe v. Wade, in case it happens. So far, Vermont has passed a bill enshrining the right to abortion, and legislation is pending in New Mexico, Nevada, and Rhode Island.
In the meantime, the ACLU is confident they will “be able to overturn these laws because they violate decades of Supreme Court Laws,” Alexa Kolkbi-Molinas of the ACLU’s Reproductive Freedom Project told the Washington Post.