EXPLAINER-Conservative U.S. Supreme Court to have final say on abortion

by Reuters
Wednesday, 15 May 2019 16:48 GMT

By Lawrence Hurley and Andrew Chung

WASHINGTON/NEW YORK, May 15 (Reuters) - A bill passed by Alabama legislators that would outlaw nearly all abortions in the state is the strictest such measure in the United States. If signed into law, it will face legal challenges and put the focus on the conservative-majority U.S. Supreme Court, the final stop on all roads in the fight over abortion.

Alabama's law would outlaw almost all abortions, including in cases of pregnancies resulting from rape or incest. Exceptions would only be allowed to protect the mother's health. Doctors who perform abortions could face up to 99 years in prison.

Alabama Governor Kay Ivey on Wednesday was mulling whether to sign the law, part of an accelerating effort by some states and anti-abortion activists to get the Supreme Court to reconsider its landmark 1973 ruling in Roe v. Wade holding that a women has a constitutional right to abortion. If Ivey signs the bill, it would take effect in six months.



Roe v. Wade held that the due process clause of the 14th Amendment provides a fundamental right to privacy that protects a woman's right to abortion.

The high court reaffirmed abortion rights in a 1992 decision that said abortion restrictions cannot place an "undue burden" on the right and most recently in 2016, when the court threw out a Texas law that would have imposed difficult-to-meet requirements on abortion clinics and abortion doctors.

The retirement last year of Justice Anthony Kennedy, who co-authored the 1992 decision and joined the 2016 one, has given conservatives a new opening to challenge Roe. Kennedy was replaced by President Donald Trump's conservative appointee Brett Kavanaugh, who has a thin record on abortion. The court has a 5-4 conservative majority.


Before reaching the Supreme Court, the Alabama law would need to be challenged in federal district court. The judge's decision would be appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals. The 11th Circuit is currently split 6-6 between Republican- and Democratic-appointed judges. Trump has made three recent appointments to that court.







Both provisions have been struck down by lower courts.

Another pending case concerns a separate Alabama law that would effectively ban abortions after 15 weeks of pregnancy. The law criminalized an abortion method called dilation and evacuation, sometimes called D&E, in which the woman's cervix is dilated and the contents of the uterus are removed.




The legal doctrine protects the court's credibility by avoiding politicization and keeps the law evenhanded. However, the court can overrule its prior precedents if a majority of justices believe such action is warranted, in part because they believe the precedent had been wrongly decided.





States have also passed laws similar to Alabama's that ban dilation and evacuation abortions. Abortion rights activists have said it is the most common method of abortion during the second trimester of a pregnancy. North Dakota in April became the 12th state to enact a D&E ban. (Reporting by Lawrence Hurley and Andrew Chung; editing by Jonathan Oatis Editing by Noeleen Walder and Jonathan Oatis)

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