What the Alabama abortion bill really aims to do

 edition.cnn.com  05/16/2019 00:06:39  4

That two-pronged goal was clearly the intent of the bill's sponsor -- state Rep. Terry Collins (R), who said after the vote: "This bill is about challenging Roe v. Wade and protecting the lives of the unborn, because an unborn baby is a person who deserves love and protection."

Now, the court rejected a Texas law very similar to the Louisiana one back in 2016. But -- and this is the point -- that was a very, very different court. For starters, there were only eight members. Senate Republicans refused to meet with or hold confirmation hearings for then-President Barack Obama's nominee -- Merrick Garland -- citing the fact that it was too close to a presidential election for the outgoing Obama to make such a consequential pick. When that ninth spot on the court was eventually filled, it was with Neil Gorsuch, a conservative selected by President Donald Trump.

The other big difference between the 2016 court and today's court? Swing vote Anthony Kennedy has been traded out for conservative Brett Kavanaugh. Which means that there are five conservative justices and four liberals on the court. The new court's makeup has many legal experts convinced that the next time a serious challenge to Roe is heard, the law will be struck down. "Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months. #SCOTUS," tweeted CNN legal analyst Jeffrey Toobin in June 2018.
And Trump, for his part, has been transparent about his desire to see Roe overturned. Witness this exchange with "Fox News Sunday" host Chris Wallace in the late stages of the 2016 campaign:

WALLACE: You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justices on, that's really what's going to be  that will happen and that will happen automatically in my opinion because I am putting pro-life justices on the court.

That -- "put another two or perhaps three justices on" -- is, of course, exactly what Trump has done in the two-plus years he has been President.

Other experts are less certain that Roe will be eliminated anytime soon -- no matter what Trump thinks. Wrote Biskupic earlier this month:

"Rapid and dramatic moves by states to ban abortion at six weeks of pregnancy appear to set up an immediate fight over Roe v. Wade. But such direct challenges to the 1973 milestone are years from any Supreme Court hearing, and advocates on both sides are more urgently strategizing over the pending cases that would establish the terms for the eventual showdown."

The more likely outcome, she believes, is the court taking incremental steps on Roe as opposed to wiping the law out in one fell swoop.

And, when gaming out how the court would rule on even these incremental measures, it may be too facile to simply look at the five conservative justices and assume they will automatically vote for anything that chips away at the abortion law.

Chief Justice John Roberts, who was appointed to the court by President George W. Bush, has repeatedly emphasized his concern about the court breaking with past precedents, which would seemingly include Roe. "It is a jolt to the legal system when you overrule a precedent," Roberts told then-Sen. Arlen Specter (Pa.) at his 2005 confirmation hearing. "Precedent plays an important role in promoting stability and even handedness." Roberts seemed to stick by that view in a February ruling in which he sided with the four liberal justices to block the Louisiana law.
And even Kavanaugh deferred to precedent when asked about Roe during his confirmation hearings. "As a general proposition I understand the importance of the precedent set forth in Roe v. Wade," he said. (Worth noting: He wrote a 2003 memo in which he said the Supreme Court "can always overrule" Roe.)

The point here is two-fold. First, there's no doubt that legislation like the abortion ban in Alabama is aimed at the larger goal of prohibiting abortion nationwide. Second, the court has been mysterious enough on the issue to make it very difficult to predict with certainty how it might rule -- and when -- on these challenges to Roe.

CORRECTION: This story has been updated to correctly state that the Supreme Court is poised to consider hearing a challenge to the Louisiana law.

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