In 1973, the Supreme Court ruled in the landmark case, Roe v. Wade, that the fundamental right to privacy gives women the liberty to choose whether or not she wants a pregnancy. The court used a trimester framework, giving a woman total autonomy over her pregnancy during the first trimester, and giving states defined involvement in the second and third trimesters. At the time, there was no organized opposition to abortion—the case did not cause a national outcry, nor was it as controversial as it is today. However, a group of conservative thinkers realized that abortion had the potential to become a political issue that would engage more Evangelicals into the electorate; thereby increasing the votes that would put them into office. Thus, all of a sudden, abortion became politicized.
As abortion became a political issue linked closely to the Republican party, Republican state governments tried to address Roe v. Wade. Throughout 1990 and 1991, Alabama introduced bills attempting to overturn Roe v. Wade but none were able to pass. In 1992, another Supreme Court decision, Casey v. Planned Parenthood, established abortion to be the issue it is today. In this decision, the Court, which was a Republican majority, surprisingly upheld Roe v. Wade. However, this case added a clause which expanded states’ rights to regulate abortion. The new standard was that a state only couldn’t regulate abortion if it had the purpose or effect of an “undue burden”, which is “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Once this clause was added, states saw it as a perfect opportunity to increase regulation, becoming even creative in the ways they could stop abortions from being performed or sought out. For example, a popular way would be to regulate the safety of abortion clinics, requiring doorways to be certain sizes, and requiring a doctor to be on-call at all times with admitting privileges at a nearby a hospital. With all these restrictions on abortion clinics, more and more abortion clinics have been closing, with 22 states having less than five abortion clinics. Moving away from bills to reverse Roe, Republican states resorted to limiting and regulating abortions.
After Casey was passed, the anti-abortion legislators realized that there was no foreseeable opportunity to directly overturn Roe at once. Instead, they would have to chip away at it. For example, rather than defining viability at 26 weeks, some states began to lower it to 20 weeks. Now, thirty years later, states have begun to enact some of the strictest abortion laws in American history. When Kavanaugh was confirmed and the Republican majority of the Supreme Court was reinstated, the chipping away technique was replaced with a very immediate and drastic one. Starting in January of this year, states have been introducing the Fetal Heartbeat Bill. This bill bans abortion once a fetal heartbeat is detected, which is usually during the first 6 to 8 weeks of a women’s pregnancies—long before viability of the fetus. With the Republican Supreme Court majority in addition to the Republican administration and political climate, conservatives see now as the perfect opportunity to challenge Roe v. Wade—the case they had been dying to see be overturned. With Kentucky, Ohio, Mississippi, and Georgia passing the Fetal Heartbeat bill, they are purposely violating Roe v. Wade, hoping that at least one, if not all, of the laws can be brought to a ruling in the Supreme Court.
Recently, Alabama passed the most radical abortion bill in history—a complete ban on abortion that criminalizes abortions, regardless of the reason of the abortion, with no exceptions for rape and incest. This was passed 25-6, with the majority vote being completely white men, and signed by female governor Kay Ivey. These legislators know that they will be sued, and that’s what they want. Like the other states passing Fetal Heartbeat bills, the Alabama legislators want this bill to go through all the state level courts then lower level federal courts, until it is picked up by the Supreme Court. They hope the Court can finally overturn Roe v. Wade and allow their unconstitutional laws to become constitutional.
Alabama’s draconian ban on abortion is one that stirred great uproar from people around the country, as the complete regulation over women’s bodies by men. However, the reality is that this ban does reflect the opinions of those residing in Alabama. In the state that ranked fiftieth in the nation for education, the Alabama citizens’ opinions on abortion are derived from their heavy faith and religious culture. In fact, a majority of women in Alabama oppose abortion, as their politics are heavily influenced by their church. Prior to the complete ban, abortion was already heavily restricted, with only three abortion clinics in the entire state. But with the ban on abortion, there seems to be no attention brought to any other aspects of a mother or baby’s health. In Alabama, there are fewer than five-hundred obstetricians and gynecologists, and Alabama has some of the highest rates of women who die during childbirth and of infant mortality.
Because the new laws on abortion are intentionally unconstitutional, it is unlikely they will go into effect in the near future. However, the passage of these laws reflects that the hotly contested abortion issue is only increasingly polarizing and both opposition and support of abortion continue to be at ends with one another. The opposition to abortion was born out of a fundamental violation of the Constitution—the intermixing of church and state, while the implementation of abortion lies on the weak foundation of a constitutional interpretation. If any of these states’ laws are taken up into Court, it’ll be interesting to see how the current Court interprets the laws and whether or not they will consider the court cases of their predecessors. As for now, the only way we can prevent a Handmaid’s Tale-esque future—one where women’s bodies are completely controlled by the government—is to donate to organizations that help women in affected states, volunteer for those organizations, educate ourselves on the issue and simply be vocal about our opinions.
