With Alabama’s strictest-in-the-nation abortion ban now law, the real fight begins – in court.
After playing coy earlier in the day, Gov. Kay Ivey on Wednesday signed the law that makes performing an abortion a felony in any pregnancy except when the health of the mother is at risk. Officially, the law takes effect in six months. But even Ivey acknowledged in a statement that all-but-certain legal challenges likely will block the law.
That sets up a court fight, which the bill’s authors welcome as a way to challenge Roe v. Wade, the 1973 precedent that legalized abortion nationwide.
If unsuccessful in court, Alabama would be on the hook for the legal fees of organizations that sue the state. But Ivey, in an appearance near Montgomery earlier in the day, suggested that legal costs would not factor into her decision on whether to sign the bill.
“We certainly cannot deter your efforts to protect the unborn because of cost,” she told reporter. “Even if it means going to the United States Supreme Court.”
Abortion opponents have made it clear they intend to challenge the law. The American Civil Liberties Union of Alabama reminded lawmakers during the state Senate debate Tuesday what happened when the Legislature passed a law in 2013 requiring doctors to have admitting privileges at a local hospital if they want to perform abortions.
Alabama lost the case and ended up having to pay $1.7 million to compensate ACLU Alabama for its legal fees. The organization tweeted an image of that check during the Senate debate.
Alabama Attorney General Steve Marshall, who was in Orange Beach on Wednesday, told reporters that he stands ready to defend the law as it makes its way — supporters hope — to the U.S. Supreme Court.
“We’re prepared to be able to, through the law that was passed by the Legislature yesterday, which I assume will be signed by the governor, to basically take a factual case dealing with the underpinnings of Roe vs. Wade; to be able to show how science has changed, how the knowledge has changed and to allow the court to eventually re-examine what it was factually they used to base their decision on Roe,” he said.
The ACLU Of Alabama pledge Wednesday to file a lawsuit before the law takes effect. The organization is trying to raise money off the controversy, inviting visitors to its website to “fight the Ban” by making a tax-deductible donation.
Marshall said the state’s direct costs will be limited. State-employed lawyers will do the work, and they would draw salaries regardless of whether they were defending the law or doing something else. The attorney general said costs would be limited to small expenses, such as fees for expert witnesses.
But Marshall acknowledged that Alabama would be forced to pay the plaintiffs’ fees if the state loses.
Abortion opponents have become increasingly aggressive in recent months, emboldened by the confirmation of new Justice Brett Kavanaugh, who they feel tips the balance on abortion.
Even as the attorney general’s office prepares to do battle on the ban, the state awaits word on whether the Supreme Court will hear another abortion case — a 2016 law banning s certain type of late-term abortion. Opponents call it “dismemberment” abortion because the procedure involves tearing the fetus apart.
The Atlanta-based 11th U.S. Circuit Court of Appeals upheld a lower court’s decision to block the law, based on existing precedent. But one of the judges in the majority write a separate opinion urging the high court to revisit that precedent.
Marshall declined to give odds on whether the justices will take the case or let the lower court rulings remain in place.
“We’re hopeful they’ll take it; let me put it that way,” he said. “I mean, I think any case that you put in front of the Supreme Court, the likelihood of them taking it is fairly minimal. But yet, we think it’s a compelling case, and one that raises an issue that’s important in this country.”
The sponsors of the Alabama abortion ban have said they resisted including exceptions for rape and incest because they believe that makes it a stronger challenge to Roe v. Wade. But constitutional scholar Laurence Tribe, of Harvard University, argued the opposite on Twitter.
“If signed by Alabama’s Governor, this law criminalizing all abortions, without exceptions for rape or incest, is too extreme to make a decision upholding an injunction against its enforcement a likely case for SCOTUS to agree to hear,” he wrote.
Marshall declined to offer an opinion about whether the law would be easier to defend with or without the exceptions.
“We were prepared to defend if in either case,” he said.