In a little more than two months, Alabama voters will weigh in on a state constitutional amendment that would “support the sanctity of unborn life and the rights of unborn children, most importantly the right to life.”
Yet Cindy Harless, director of the group Choose Life Alabama, acknowledges she hasn’t been following the vote closely.
“To be honest, I haven’t been engaged in the issue,” said Harless, who runs the nonprofit that collects money from the state’s “Choose Life” license plate and distributes it to anti-abortion pregnancy counseling centers. “I’m busy planning a symposium for adoption agencies and taking care of pregnancy crisis centers.”
Harless isn’t alone. More than a year after the Alabama Legislature put the pro-life amendment on the ballot, there’s been little public campaigning for or against the measure. Activists on both sides say the inclusion of anti-abortion wording in the Alabama Constitution would amount to a momentous change. Yet both sides acknowledge that the amendment vote is being overtaken by other events in the continuing debate over abortion.
“This is just a statement of policy,” said Eric Johnston, director of the Alabama Pro-Life Coalition.
Stunt no more
When Alabama lawmakers introduced the abortion amendment last year, it looked like the end of abortion rights in the state might be on the horizon.
The state had imposed restrictions on abortion before — making it tougher for minors to seek abortions and adding new regulations for clinics and doctors — only to see most of the changes quickly overturned in federal court.
In April 2017, things were different. Donald Trump was president. Neil Gorsuch, a Trump appointee, had just taken the Supreme Court seat held by the late Antonin Scalia, maintaining the conservative bloc on the high court. Justices Ruth Bader Ginsburg and Anthony Kennedy were in their 80s, leading many to expect Trump would get another appointment to the court before 2020.
The proposed amendment, which would “ensure the protection of the rights of the unborn child in all manners” and declared that “nothing in this Constitution secures or protects the right to abortion” seemed poised to ban abortion as soon as the justices changed their minds on Roe.
“This bill's not going to save any lives until Roe v. Wade is repealed," Sen. Phil Williams, R-Rainbow City, said while advocating for the bill on the Senate floor.
The stakes would seem to be higher now. Kennedy, historically a swing vote on the Supreme Court, retired earlier this year. Abortion foes hope — and abortion rights advocates fret — that Trump appointee Brett Kavanaugh could be the key to overturning Roe, should the Senate confirm him.
“Under past federal administrations, we would call this amendment a stunt, but we don’t have that luxury anymore,” Mia Raven a founder of the Montgomery Area Reproductive Justice Coalition, wrote in an email to The Star.
Raven believes the amendment could bring stronger restrictions than even many abortion opponents would want. In a post-Roe world, she said, old state laws against abortion might come back into effect anyway. The amendment, she said, would close any exceptions in those laws for rape, incest or the mother’s health.
Raven polled her Facebook friends, many of them abortion-rights activists, last month to ask what they knew about the amendment. Most said they knew no details.
“The implications of the amendment are great either way, but with Kavanaugh, the stakes are now higher,” said Barbara Ann Luttrell, a spokeswoman for Planned Parenthood Southeast.
Luttrell said the group has been urging its allies to campaign against the amendment, but she noted that there’s another major issue in the group’s sights. U.S. Sen. Doug Jones, the Alabama Democrat elected last year, has for weeks said he’d keep an open mind on the Kavanaugh nomination. Last week, Jones said he’d like to see the Senate put the “push a pause button” on the nomination while Congress awaits the fallout of investigations into Trump associates — but the Senator hasn’t committed to a “no” vote on Kavanaugh.
Luttrell said the group is encouraging its supporters to call Jones and sway him. She noted that women, and especially minority women, turned out in large numbers for Jones.
“A court with Kavanaugh would have huge implications for the people who elected Jones,” Luttrell said.
Local TV airwaves have been burning up with ads that make similar call-your-senator appeals. Federal Communications Commission records show one advocacy group, the Judicial Crisis Network, spending more than $180,000 on ads on three Birmingham stations since June.
Johnston, leader of the Pro-Life Coalition, said his group hasn’t spent anything on advertising for the abortion amendment.
Life after Roe
A post-Roe world is a real possibility, said Florida State University law professor Mary Ziegler. But it’s unlikely to happen soon, and may not happen in a single broad stroke.
“The court is conservative, not just in terms of right and left, but also in the broader sense,” said Ziegler, who has written extensively about abortion-related law.
Ziegler noted that challenges to state laws can take years to work their way through the courts – and that even Republican courts are reluctant to overturn long-standing decisions. She said it’s more likely that red states will try to chip away at Roe with further restrictions on abortion.
Even in a post-Roe world, Ziegler said, the Alabama amendment might not have the effect some of its supporters expect.
“It looks like a solution in search of a problem,” Ziegler said.
She said that in West Virginia, the other state with a right-to-life amendment this year, state courts have upheld abortion rights — something that would be an impediment if West Virginia wants to ban abortion in a post-Roe world.
“You don’t really have that issue in Alabama,” she said. The state’s all-Republican Supreme Court, she noted, is unlikely to strike down an abortion ban.
Ziegler said any abortion ban would likely have to address a number of issues on which even abortion foes can’t reach consensus. Punish women, or only doctors, for breaking the law? Should there be exceptions for rape or incest? If life begins at conception, what to do with fertility clinics? What’s the penalty for distributing abortion-inducing drugs, which largely didn’t exist in the days before Roe?
Johnston, the Pro-Life Coalition director, agrees with some of Ziegler’s analysis. It would take at least two years for any challenge to Roe to work its way through the courts, he said. Asked if the Alabama amendment could be one of the test cases that leads to a Roe challenge, Johnston said no.
“It doesn’t do anything by itself,” he said. “It doesn’t require anybody to do anything.”
He said the Legislature would need to pass enabling legislation to ban abortion even if the amendment passed and Roe went away. He said lawmakers in the next legislative session might pass bills that could become test cases for restricting or overturning abortion.
Asked how anti-abortion activists should be spending their time now — calling senators about Kavanaugh, working on state legislative campaigns or advocating for the statewide amendment — Johnston declined to give one item priority.
“They should do all those things,” he said.