Legislators in Alabama have said the bill was specifically passed in order to trigger a court challenge that would land the argument about terminating a pregnancy once again before the U.S. Supreme Court. The goal, opponents of abortion say, is to overturn Roe v. Wade, the 1973 landmark decision making abortion legal in the United States.
Before Tuesday’s action by the Alabama legislature, four states had passed legislation restricting abortion since Jan. 1.
Here is a look at some of the legislation that has passed and what it could mean for the future of Roe v. Wade.
What does Roe v. Wade say?
In Roe v. Wade, the Supreme Court ruled that a Texas state law that banned abortions was unconstitutional. The court ruled that under the ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, women had a fundamental "right to privacy" that allows pregnant women to choose whether or not to have an abortion.
The ruling went on to say that, in the court's opinion, having an abortion in the first trimester of pregnancy was no more dangerous than carrying a fetus to full term.
Justices William Rehnquist and Byron White voted against the ruling, the. The other seven judges, including Chief Justice Warren Burger, voted in favor of the ruling.
If Roe v. Wade set a precedent for future cases, how can the ruling be challenged?
First, let’s look at precedent. As a legal term, precedent means that decisions in certain cases establish a principle or rule for future courts to follow.
In the case of Roe v. Wade, opponents of abortion hope to alter or abolish Roe by having a state abortion law challenged in lower courts and ultimately end up being heard by the U.S. Supreme Court.
How would the hearing of an abortion rights case change Roe v. Wade?
Those who oppose abortion feel the current makeup of the Supreme Court is the most favorable in decades for a chance to make changes to or overturn Roe. Of the nine justices, five are considered conservative and four liberal.
What’s the big deal about getting the Supreme Court to hear a case? Doesn’t the Supreme Court automatically hear cases appealed from lower courts?
No, the U.S. Supreme Court decides which cases it will hear. The court will hear only three types of cases – original jurisdiction cases, meaning a case brought by one state against another state or against the federal government; cases "affecting ambassadors or other public ministers and counsel; or, as in the abortion debate, cases that request a review of decisions of lower courts such as federal appellate or district courts.
Of those three types of cases, the court decides as a body which cases it will hear during a session.
What type of abortion legislation has the best chance to end up in the U.S. Supreme Court?
Alabama’s abortion legislation is the latest in a series of recent state laws aimed at restricting abortions or the services abortion clinics offer.
The legislation, which has become known as “heartbeat bills,” make abortion illegally if a fetus’ heartbeat can be detected, generally at about six weeks.
Sponsors of the state bills, and many of the governors who have signed them, admit the goal of the legislation is to set up a Supreme Court showdown on abortion rights.
Ohio Gov. Mike DeWine said he knew his state's heartbeat bill would be challenged, and that was its goal.
“Taking this action really is a kind of a time-honored tradition, the constitutional tradition of making a good faith argument for modification or reversal of existing legal precedents,” he said. “So that is what this is.”
In Alabama, Rep. Terri Collins, R, the sponsor of the Alabama legislation, said Tuesday, "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. I have prayed my way through this bill. This is the way we get where we want to get eventually."
In February, the U.S. Supreme Court blocked Louisiana’s abortion law that would have resulted in one doctor in a single clinic in the state authorized to perform abortions.
On a 5-4 vote with Chief Justice John Roberts joining with the court’s four liberal justices, a temporary stay was ordered, but a final decision was not reached in the case. Supreme Court watchers believe it’s likely the justices will hear a challenge to the law in the next term.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh said they would have denied the stay, according to The New York Times.
Which states have heartbeat bills? What about other abortion restriction bills?
Fetal heartbeat laws make abortion illegal after the time the heartbeat of a fetus can be detected.
Prior to Tuesday’s vote in Alabama, six states – Ohio, Georgia, Iowa, North Dakota, Kentucky and Mississippi – have passed fetal heartbeat laws. Eleven other states are considering such legislation, according to the Guttmacher Institute, a research and policy organization committed to advancing sexual and reproductive health and rights.
Legislation in four states has already run into legal challenges – North Dakota, Arkansas, Iowa, and Kentucky – and are currently blocked from going into effect. Mississippi's ban is being challenged, and the Center for Reproductive Rights has asked a judge to stop the law from going into effect on July 1.
Prior to Alabama's action on Tuesday, four states had passed such laws since Jan. 1.
Legislation that includes other restrictions to abortions could make their way to the Supreme Court. An Indiana law would have banned abortions for fetal anomalies is one such law. In Missouri, a law requiring clinics that provide abortions to be set up as ambulatory surgical centers and doctors who provide abortions to have admitting privileges at local hospitals was struck down by a federal appeals court.
A Texas law that bans a method of abortion called dilation and evacuation, or D&E, was being challenged in court this past fall.
What happens if Roe v. Wade is overturned?
Every state abortion ban set to go into effect has been blocked or delayed by lower courts, and abortion remains legal in the United States.
However, some see the day that Roe could be challenged or overturned.
If Roe is overturned, abortion in the United States would not necessarily be illegal. The decision on whether an abortion is legal would revert to the states.
In some states, bans on abortion have remained on the books. Other states have begun to introduce and pass “trigger laws,” or laws that would trigger a ban on abortion should Roe be overturned. Louisiana, Mississippi, North Dakota, and South Dakota have such laws.