This week the State of Alabama passed the most restrictive Abortion Law in the United States. The law is officially known as the Alabama Human Life Protection Act and provides only two circumstances when an abortion would be legal. The first is if the fetus has a “lethal anomaly” resulting in the baby’s death at the time of or soon after birth. The second circumstance permitting an abortion is if the pregnancy would pose a “serious health risk” to the mother. In both scenarios, the law possesses language that one could interpret meaning that two doctors would have to concur regarding the fetus’ or mother’s health. Any doctor who performed an abortion in violation of the law would face a felony as the act would be considered a homicide for purposes of sentencing. Although the Governor did sign the bill, it will take six months to go into effect giving time for appeals.
On May 7, 2019, the State of Georgia passed an anti-abortion law. Unlike Alabama’s bill, Georgia made it illegal to have an abortion once a heartbeat is detected by a physician. Most medical professionals agree, a fetus has a heartbeat usually around six weeks after conception. Before performing an abortion, a doctor would need to check for a heartbeat. Additionally, an abortion could occur up to twenty weeks into a pregnancy if conception was a result of an incidence of rape or incest. However, a police report filed with the appropriate law enforcement agency would be a necessary precursor to the abortion. Language in the law also exists that allows the fetus to be aborted if the pregnancy is found to be “medically futile” or the fetus “has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.”
By passing these laws it is clear that what both states are trying to accomplish is to overturn the precedent of Roe v. Wade, the landmark United States Supreme Court case providing women the right to an abortion. With President Trump’s latest two appointments to the United States Supreme Court, the time appears ripe for Pro Life advocates to roll the dice and see if they can abolish the right in the United States. But before Pro Choice advocates hang their hopes on the importance of precedent and stare decisis, it is important to remember that there is precedent for overturning precedent.
Think for a moment of the Dred Scott decision which found that African Americans were not and never could be citizens of the United States. Or how about the decision of Plessy v. Ferguson where the United State Supreme Court ruled the separate but equal was the law of the land. It was not until Brown versus the Board of Education almost sixty years later before this precedent was overturned. Surely, in the examples cited, we would all agree that these decisions needed to be overturned. If one reads the decisions overturning precedent, the Court’s rationale is rooted in the concept that society norms and opinions on topics evolve and mature over time.
Therefore, could a conservative majority in the United States Supreme Court believe norms and opinion on abortion has evolved as well? Could the majority find the time is not for abortion to be illegal and in their minds be reflective of what is accepted by society? Only time will tell what will happen? But one thing is known for sure, stare decisis alone will not necessarily win the day!
-By Marc Consalo, Director of the Center for Law and Policy