One of the most controversial parts of the near-total abortion ban passed by the Alabama legislature on Tuesday was the lack of exceptions for rape or incest, a common carveout in even the strictest anti-abortion legislation.
At one point during Tuesday’s contentious, hours-long debate over the bill, Alabama Sen. Bobby Singleton, a Democrat, pointed out that under the new bill, an abortion provider could spend more time in prison than a rapist.
Sponsors of the bill, which now awaits Republican Gov. Kay Ivey’s signature, say the lack of exceptions is necessary to get the ban in front of the Supreme Court, where it could result in the overturning of Roe v. Wade. But rape and incest exceptions are politically popular — 77 percent of Americans think abortion should be legal in the first trimester in these cases, according to a 2018 Gallup poll.
Now even some abortion opponents are saying the Alabama bill, which is likely to be challenged in court if it becomes law, goes too far. And some say the way the bill was crafted could actually hurt its chances with the Supreme Court.
Historically, abortion opponents have made the case that the Supreme Court “should overrule Roe because it’s the right thing to do,” Mary Ziegler, a law professor at Florida State University who studies the history of the abortion debate, told Vox.
The sponsors of the Alabama bill, however, are essentially saying “we want to just present a bill that overrules Roe, and we’re not going to do as much to make the case that you should.” That tactic could backfire with the Court, Ziegler said.
Since the election of President Donald Trump, abortion opponents have been pushing stricter and stricter bills at the state level, hoping to capitalize on a friendly administration and possibly mount a challenge to Roe. But the Alabama bill could test the limits of that strategy.
Exceptions for rape and incest date back to the years before Roe, when states began liberalizing their abortion bans to allow the procedure in certain cases, Ziegler said. In the mid-’60s, states like Colorado began legalizing abortion in cases of rape and incest.
After Roe was decided in 1973, states had to allow abortion before viability, regardless of how a pregnancy began. But the rape and incest exceptions resurged in 1976 with debate around the Hyde Amendment, which banned federal funding for abortions. Some anti-abortion activists objected to the inclusion of rape and incest exceptions in Hyde, Ziegler said, but ultimately, they were overruled.
Since then, some abortion opponents have argued against the exceptions, saying it shouldn’t matter how a fetus is conceived.
“Rape and incest are both acts of violence, and we would argue that abortion is also an act of violence,” Jamieson Gordon, director of communications and marketing for the group Ohio Right to Life, told Vox. “Rape will not be solved by an abortion.”
Others have claimed, as Todd Akin did in his Missouri Senate campaign in 2012, that the exceptions are moot because a woman is unlikely to become pregnant through rape. This is false.
With notable exceptions like Akin, though, abortion opponents have generally seen the exceptions as politically untouchable, Ziegler said, largely because they’re so popular with voters — even those who oppose abortion under other circumstances.
But the Alabama ban nonetheless does not include these carveouts, though it does allow abortion if a pregnant person’s life is at risk. One Alabama resident told the Washington Post earlier this month that the lack of exceptions was a sticking point for her: “I’m a Christian. One hundred percent pro-life. But I don’t think I want that in the law.”
Some national anti-abortion groups have spoken out in favor of the Alabama bill. Marjorie Dannenfelser, president of Susan B. Anthony List, called the bill’s passage “a landmark victory for the people of Alabama” in a statement on Wednesday.
But others on the anti-abortion side say the bill is too extreme — and some worry that might hurt its chances at the Supreme Court.
“I don’t even think this bill, if it’s signed into law, makes it to the Supreme Court,” writes Joe Cunningham at the conservative website RedState. “I think it will get struck down in circuit court and the Supreme Court just won’t take it up. It’s not the fight they want to have because it’s so farcical.”
Cunningham may be right to worry. By crafting their bill explicitly to challenge Roe v. Wade — and being public about that fact — the Alabama bill’s sponsors may actually have hurt their chances, Ziegler said.
Alabama Rep. Terri Collins, the Republican who introduced the bill in the Alabama House of Representatives, has said she has empathy for survivors of rape and incest and supports states being able to carve out exceptions for those cases.
“But what I’m trying to do here is get this case in front of the Supreme Court so Roe v. Wade can be overturned,” Collins told the Washington Post.
But saying that you want to get a case before the Supreme Court is not necessarily the best way to get a case before the Supreme Court.
For decades, abortion opponents have “tried to make the case that Roe is incoherent or that Roe is unworkable or that abortion hurts women,” Ziegler said. But the sponsors of the Alabama bill are just saying they want Roe overturned, and they may not have offered the Court a compelling reason to do so.
If the Supreme Court wants to revisit Roe, it has a lot of choices — more than a dozen cases are currently one step away from the Court. And the justices may prefer to take up a law whose backers have made an argument on the merits, rather than one aimed simply at undermining Roe.
“It’s not a great strategy to say that you’re being strategic,” Ziegler said.
More broadly, it’s not at all clear that writing the most restrictive law possible is the best way to get the Supreme Court’s attention. Many sponsors of “heartbeat” bills around the country, which ban abortion as early as six weeks, have also said their goal is to challenge Roe v. Wade.
But Clarke Forsythe, senior counsel for the anti-abortion group Americans United for Life, wrote at the National Review earlier this month that the Court may want to avoid the appearance of ruling for or against abortion, and that if it does decide to revisit Roe, it may do so in a case involving a law with more public support. As an example, Forsythe mentions laws requiring patients to view an ultrasound before having an abortion, on which public opinion has been about evenly split.
Of course, as Forsythe notes, if the Court chooses to weigh in on a more incremental law, it could still overturn the protections for abortion rights enshrined in Roe. Then states like Alabama would be free to ban abortion if they chose.
With the current composition of the Court, Roe is still at risk. It just might not be the Alabama bill that topples it.