Text of the Alabama Human Life Protection Act
Prof. Mary Ziegler, Abortion Opponents Think They’re Winning. Have They Set Themselves Up to Fail? Alabama, Georgia and the fetal personhood trap.
Washington Post, Abortion ban reaction: Democrats erupt, Republicans stay quiet as both sides see an impact in the 2020 election
The Theology of Abortion
When the priest says the words, “Hoc est corpus,” a bakery product symbolizing the body of Christ is transformed into the actual body of Christ—at least, according to one theological position.
A sperm has the potential to fertilize an egg and, in the fullness of time, become a baby. An unfertilized egg is likewise a living organism with the potential to be fertilized and, in the fullness of time, become a baby. A fertilized egg is a living organism that also has the potential, in the fullness of time, to become a baby.
The distinction between the fertilized and the unfertilized egg is that, according to one theological position, just as “Hoc est corpus” transforms a bakery product, so also fertilization corresponds with the fertilized egg’s possession of an immortal soul.
Yesterday, the state of Alabama, invoking alleged principles of universal human rights, enacted a sectarian theological position into law: fertilized eggs are the moral equivalent of babies.
The Moral Equivalent of Genocide
Lest there be any doubt about its views, the Legislature, in Section 2(i) of the new law, declared that the 50 million abortions performed since Roe v. Wade were worse than Hitler’s genocide, Stalin’s murders, or Pol Pot’s murderous regime. They threw in The Rwandan genocide for good measure. (Inexplicably, they omitted to mention the ethnic cleansing of Native Americans in Alabama and elsewhere, or the loss of life among kidnapped Africans.)
An “Extreme” Position Required by Logical Consistency
After an emotional debate, the Legislature rejected any exception for rape or incest. It’s a universal human inclination to want to pin adjectives onto complex situations. Accordingly, many have employed the word “extreme” to describe a law requiring a rape victim to bear her rapist’s child.
Actually, while you may use whatever adjective suits your fancy, denying an exemption for rape or incest is an exercise in consistency. Because actual babies born of rape or incest are morally equivalent to all other babies.
But, Oddly, Also An Extremely Inconsistent Position
The first sentence of Section 5 of the Alabama law provides, “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.” On the other hand, physicians who perform abortions commit a Class A felony, punishable by imprisonment from 10 to 99 years. (Prior Alabama law—unenforceable under Roe—had previously applied both to mother and physician, and had made abortion a misdemeanor.)
So, as far as physicians are concerned, a fertilized egg is the moral equivalent of a baby and if they perform an abortion they are the moral equivalent of the Nazi doctors.
But as far as pregnant women are concerned, a fertilized egg is not the moral equivalent of a baby, it is the moral equivalent of a sperm or an unfertilized egg. (And, per the language of the statute, that rule applies if the woman successfully seeks illegal sub rosahelp in the abortion, or if she manages to abort herself.)
You really have to do some serious damage to your mind if you think a zygote is a baby for one purpose but not a baby for another purpose.
As they like to say in Alabama, that dog won’t hunt.
What Will the Courts Do?
I assume the Alabama district courts and the Eleventh Circuit Court of Appeals will enjoin enforcement of the statute, citing Roe v. Wade and other binding precedent. (If they judges are Fetus People, they can feel free to insert some dictum imploring the Supreme Court to overrule Roe and purge the nation of its wickedness. But it will only be dictum.)
Will the Supreme Court “Take Cert”?
Supreme Court review of lower court decisions is discretionary, not mandatory, and the Court decides to review only about ten percent of the cases where appeal is sought. (The decision to review is called granting a writ of certiorari, or “taking cert” for short.)
Here, the Supreme Court could decide just left the inevitable Eleventh Circuit decision against the Alabama law stand, without any further consideration (and thus “deny cert”). Last evening, I refreshed my recollection about how many justices can force the Court to “take cert.” The answer is four.
So, if Thomas, Alito, and Gorsuch want the Court to take cert, overturn Roe, and uphold the Alabama law, they will, in the first instance, have to get either Roberts or Kavanaugh to join in, so that there will be at least four votes for cert.
A Cloudy Crystal Ball
Lots of people—including lots of people who know a damn sight more about this stuff than I do—are making predictions about how this will all play out. Having, myself, suffered humiliation in the past from making wrong predictions about how the Supreme Court would decide antitrust cases, my strong sense is that no one know what will happen, including any of the nine folks in the black robes.
Winnng by Losing, Losing by Winning
But we are on much more solid ground in predicting political fallout. If all five of the Republican justices—Chief Justice Roberts, and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh—are the inveterate anti-abortionists that some hope, then they will take cert on the Alabama law or on one or more similar laws in other states, consign Roe to the dustbin of history, and leave abortion to the states.
If that happens—and it may very well happen—the Fetus People, especially the Fetus People who really don’t like Trump very much, will tend to stay home in 2020, while all the progressives will be animated by a white hot anger. If the election is close, this factor could make the difference.
If, on the other hand, at least one of the right wingers decides to act, not as an anti-abortion zealot but instead as a Republican political hack, the smart choice would be to keep the abortion issue alive in 2020—on the assumption that every single one of the Fetus People will go to the polls and vote for Trump, so that Trump will get to replace RBG and they will get their no-abortion majority on the Court.
Kavanaugh, in particular, might be well positioned to perform some political jujitsu. He could vote against cert, or vote against overturning Roe in full, thereby simultaneously redeeming his promise to Susan Collins and doing his bit to reelect Trump. I wouldn’t put it past him.