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In post-Roe Alabama, abortion issue could be complicated

By MARY SELL, Alabama Daily News

If the U.S. Supreme Court ends the constitutional right to an abortion, a voter-approved 2018 Alabama constitutional amendment “to ensure the protection of the rights of the unborn child” will play a part in shaping the state’s future abortion laws.

Even if lawmakers want to add exceptions for rape and incest to the near-total abortion ban law passed in 2019, that 2018 constitutional amendment could lead to a state-level legal fight.

“The (2018 amendment) talks about the protection of the life of the unborn,” Eric Johnston, a pro-life advocate who has helped draft several Alabama bills, including the 2019 law. “And it doesn’t matter how you are conceived — rape, incest, in vitro, married or not married — it doesn’t matter. Once you’re conceived, you’re a developing person.

“… When the Alabama constitutional amendment says we respect the rights of the unborn, it would be hard to make that distinction (and make exceptions).”

If Roe v. Wade is overturned as indicated in a leaked February draft opinion, Alabama’s 2019 law could become effective. It outlaws abortions when a woman is “known to be pregnant.” Performing or attempting to perform abortions is a felony and there are no exemptions for rape or incest. 

Rep. Terri Collins, R-Decatur, sponsored that 2019 law with the goal of overturning Roe. Even after its passage, Collins said it wasn’t her preferred law and she’d rather see legislation she’d previously sponsored multiple times that banned abortion if a fetal heartbeat is detected. That legislation also allowed for exceptions for rape and incest.

“In Alabama, if Roe Vs. Wade is overturned, and that was the purpose of our Human Life Protection Act in ’19, in my mind what that would do is send that ability back to the states to make our own laws, and we’d want to decide what our laws about abortion are in Alabama,” Collins, R-Decatur, told Alabama Daily News recently.

She said she will likely bring a new bill proposal to the Legislature next year.

Johnston and others are careful to say they’re speculating about the pending SCOTUS ruling, if it looks like the draft leaked last week, the 2019 law, previously enjoined by a federal judge, could go into effect.

“If (there were attempts to add exceptions), you’d be running afoul of the Alabama Constitution,” Johnston said.

Othni Lathram, director of the Legislature Services Agency, which helps lawmakers draft bills,  said the state needs to take this scenario one domino at a time, and the first to fall will be a real SCOTUS option and whether it leaves abortion access up to individual states. 

The state constitution amendment comes into play several dominos down the row, if lawmakers tried to change the 2019 law.

“Should lawmakers attempt to pass a bill that includes exceptions or exclusions, then I think there is likely to be a legal challenge under the state’s constitution as to whether that would be permissible,” Lathram told Alabama Daily News.

Johnston said the Alabama Pro-Life Coalition, of which he is the president, would oppose changes to the 2019 law.

Rep. Chris England, D-Tuscaloosa, said the constitutional amendment would likely be “the base” state laws are built from. The attorney and chair of the state Democrats said that while the amendment doesn’t provide penalties or enforcement mechanisms, it would give anti-abortion advocates grounds to sue over future laws.

“There’s a lot of complicated discussions that are going to have to occur because we didn’t do the right thing or the responsible thing in the first place and pass laws for the purpose of governing versus passing laws to challenge Supreme Court precedent,” England said. 

“I think you have to start from the position that if Roe vs. Wade is overturned, the Constitution completely outlaws the procedure,” England said. 

Robin Marty, operations director at West Alabama Women’s Center, said Amendment 2 isn’t a “personhood” amendment because it doesn’t define when life begins, instead referring to “the unborn” and was likely written to be ambiguous. It gives lawmakers the ability to ban abortion “in whatever form they want to, when they are given the ability,” she said.

Marty said many anti-abortion extremists want the law that was approved in 2019.

There are a lot people who believed they were getting a total abortion ban for the point of having a total abortion ban and they do believe in the moment of conception and it doesn’t matter how that was created, it doesn’t matter if there’s no chance of survival outside the womb,” Marty said. “… That’s going to be an interesting thing to see play out.”

For Marty and other abortion advocates, the biggest current concern is a pre-Roe abortion prohibition that would become enforceable the moment Roe is overturned. Marty said providers have been advised to stop all procedures should that ruling arrive.

England said the legal ramifications of Amendment 2 go beyond abortions, including to people who used in vitro fertilizations to conceive and have frozen embryos for possible use later.

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