clock menu more-arrow no yes

Alabama’s abortion ban is being challenged in court by the ACLU and Planned Parenthood

“We will absolutely make sure that abortion remains legal in all 50 states,” an ACLU attorney said.

Protesters demonstrate against Alabama’s recent near-total ban on abortion on May 19, 2019, in Montgomery, Alabama.
Julie Bennett/Getty Images

The American Civil Liberties Union and other groups filed suit on Friday to challenge Alabama’s recent ban on abortion at all stages of pregnancy, which has no exceptions for rape or incest.

The suit, filed by the ACLU and Planned Parenthood Federation of America on behalf of Alabama abortion providers, argues that the ban runs directly counter to Roe v. Wade, the 1973 Supreme Court decision that established the right to an abortion.

“For over forty-six years,” the complaint states, “US law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy.”

Backers of the Alabama ban, which was signed into law earlier this month and has not yet taken effect, are aware that the law is in conflict with Roe. In fact, that was the goal.

“What I’m trying to do here is get this case in front of the Supreme Court so Roe v. Wade can be overturned,” Alabama state Rep. Terri Collins told the Washington Post.

It’s unclear whether the case, filed in US District Court in Alabama, will make it that far. Some have argued that the Alabama ban is so controversial that the Supreme Court might prefer not to weigh in on it. Whatever the case, Alabama’s ban is now one of several strict anti-abortion laws passed in recent months to be challenged in court.

“We are confident that the courts are going to block not only Alabama’s” abortion ban, but also similar laws in Ohio, Georgia, and elsewhere, Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project, told Vox. “We will absolutely make sure that abortion remains legal in all 50 states as it is today.”

The Alabama bill has been in the national spotlight for weeks

The Alabama bill has been a lightning rod for national controversy from day one.

When the bill was first floated in March, Eric Johnston, an attorney with the Alabama Pro-Life Coalition who helped draft the bill, seemed to be pushing bizarre theories about human reproduction, saying that “a man and woman can have sex and you can take her straight into a clinic and determine an egg and sperm came together.” In fact, the most sensitive tests cannot detect a pregnancy until about a week after fertilization.

Johnston’s comments were widely criticized. “Maybe not everyone learns the mechanics of early pregnancy in ninth-grade biology class,” wrote Lauren Kelley at the New York Times. “But it’s reasonable to expect that someone trying to legislate what pregnant people can do with their bodies would have a better grasp on the matter.”

Ultimately, the Republican-controlled Senate passed the bill without exceptions for rape or incest. It allows abortion only if a pregnant person’s life is at risk. In signing the bill last week, Alabama Gov. Kay Ivey noted that it was all but certain to be challenged in court.

“No matter one’s personal view on abortion, we can all recognize that, at least for the short term, this bill may similarly be unenforceable,” she said in a statement. “Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.”

The law is part of a larger effort to overturn Roe v. Wade

The Alabama law comes on the heels of a wave of “heartbeat” bills that ban abortion as soon as a fetal heartbeat can be detected, which can be as early as six weeks, before many people know they are pregnant. Meanwhile, lawmakers in Texas debated a bill earlier this year that would allow the death penalty for people who get abortions.

Georgia’s heartbeat law, signed by Republican Gov. Brian Kemp earlier this month, has drawn concern over the possibility that it could lead to criminal charges for women who seek abortions or miscarry, though reproductive rights groups say they’re not sure if the law would ever be used in this way. The Alabama law specifies that patients cannot be punished for getting abortions, only doctors.

Several architects of recent anti-abortion bills have said they hope to challenge Roe v. Wade, but the backers of the Alabama ban have been more explicit than most.

It’s not clear if the effort will succeed. As Clarke Forsythe, senior counsel for the anti-abortion group Americans United for Life, told Vox earlier this month, the Supreme Court has signaled that it wants to move slowly when it comes to revisiting Roe.

When it does so, it will have many options — more than a dozen abortion cases are already one step away from the Court, and the justices could use any one of them to reexamine Roe. Many observers think it’s more likely that the Court will choose to weaken the protections in Roe, giving states more leeway to restrict the procedure.