We may soon discover if Senator Susan Collins (R-Maine) was right when she said Justice Brett Kavanaugh wouldn’t overturn Roe v. Wade.
59 percent of Alabamans voted Tuesday to amend their constitution to extend legal protections to “support the sanctity of unborn life.” While the conservative-leaning Alabama Policy Institute argued that abortion was still going to be legal because Roe v. Wade is law, others say the amendment is not just a rhetorical measure, as explained by Pastor Tom Ford.
“We state the obvious, that the baby in the womb is a person. And to take that innocent life is murder,” said Ford.
West Virginia and Alabama both voted tonight to approve measures that would ban abortion outright if Roe v Wade is overturned.
— Laura Bassett (@LEBassett) November 7, 2018
The ACLU also told AL.com that the amendment paves the way for the criminalization of abortion. Doctors also expressed concerns about the impact of the amendment.
“We will not back down from this fight. We will continue to work to ensure that all Alabamians have access to the quality, compassionate care that they deserve — no matter what,” said Alabama state director for Planned Parenthood Southeast Katie Glenn.
That fight could be exactly what abortion opponents are looking for.
Writing for Slate, Mark Stern posed this hypothetical: a state passes a particularly draconian anti-abortion law (which Alabamans arguably at least laid groundwork for with Amendment 2, if not did outright depending on its implementation). Justice Kavanaugh will make the argument that this does not pose an undue burden on abortion access. After all, Alabama’s constitution now establishes a compelling state interest in preserving a fetus.
Women who truly want an abortion, Stern supposes Kavanaugh will argue, can go to another state that does not have such an established interest.
Kavanaugh has advised against calling Roe settled law in the past, and favors a test established in a case called Glucksburg which would never have found in favor of a right to abortion access in the first place. But by following the plan Stern laid out — a plan that Alabama is setting the opening stages of — the court could effectively end Roe without explicitly overturning it.
Reva Siegel, a constitutional law professor at Yale, explained that an outright overturning of Roe would be politically disastrous for conservatives — Roe is popular, after all — but the kind of delicate and patient dismantling of Roe is far more plausible.
And a measure that would allow states to effectively eliminate abortion without directly overturning Roe, like allowing Alabama’s Amendment 2 to drive access to abortion in the state while preserving the right of Alabamans to receive abortion in other states would fit with the idea of a gradual erosion of rights.
Brock Boone, an ACLU attorney in Alabama, said that this is one potential outcome, but the implication of the amendment is potentially even further-reaching, potentially endangering the use of contraceptives including birth control pills.
Which makes the legal landscape around women’s rights in Alabama a minefield of court challenges and dramatic legal battles which almost certainly will find their way back to Brett Kavanaugh.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.