Alabama, Georgia, and Ohio's abortion laws threaten to undo Roe v. Wade and drag Democrats down in 2020 elections, giving Donald Trump the advantage.
A spate of new state abortion laws are attacking the framework established by Roe v. Wade from both sides of the spectrum. The flurry of litigation that is certain to follow may provide the Supreme Court with an opportunity to revisit the landmark 1973 case and potentially formulate new guidance on regulating the abortion industry.
Last week Alabama Governor Kay Ivey signed into law a bill that could punish doctors who perform abortions with up to life in prison. This followed a law in Georgia that would make performing an abortion illegal once a heartbeat is detected, usually around 6 weeks. Similar laws have been passed in Ohio and Mississippi, and the Missouri House has passed a bill to ban abortions at the 8th week of pregnancy.
At the other end of scale, New York enacted a law that extended legal abortion into the third trimester in some circumstances. Virginia was also considering such a law, but it was tabled after its sponsor, Delegate Kathy Tran, admitted that under her proposed legislation a baby could be aborted even at the moment of birth. Virginia Democratic Governor and pediatric neurosurgeon Ralph Northam hardly helped matters when he explained that in such cases "the infant would be delivered” and “kept comfortable” while the decision was reached whether or not to kill it.
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Critics say the Alabama law is clearly unconstitutional under Roe v. Wade, but its backers say that is the point. Gov. Ivey noted in her signing statement that the law was probably unenforceable but that the law “may bring about the best opportunity … for the U.S. Supreme Court to revisit this important matter.”
Yet even the late term abortion laws could be tossed out under the logic of Roe. While the Supreme Court made legal first term abortions, it specifically rejected the argument that pregnancies could be terminated “at whatever time, in whatever way, and for whatever reason” the mother chooses. The “compelling point” for the Court was viability, defined as “the capability of meaningful life outside the mother’s womb.”
Regardless of when life begins, when it is viable, the state has a compelling interest in protecting it. Thus, when Hillary Clinton said in 2016 that an unborn child had no rights under the Constitution even up to the point of natural birth, she was basically arguing against the Roe v. Wade framework.
Democratic political strategists have welcomed the Alabama law as a way to fire up their base and reset the abortion argument going into the 2020 election. But the simultaneous push for late-term abortion clearly works against them. In a February Marist poll, pro-life sentiment surged, erasing a 17 point gap and drawing even with the pro-abortion position. The poll showed 71% opposing abortion after 20 weeks, and even among Democrats opposition was 59%.
Younger people are opposed to abortion
Perhaps more alarming for the Democrats is that younger people moved in greater proportion towards the pro-life position than older age cohorts. And a May 2019 Hill-HarrisXsurvey found that 55% of those polled found a Georgia-style six-week abortion ban either “just right” or “too lenient.” Again, broken down by age group, it was those aged 18-34 who “were most likely to say the abortion bans did not go far enough.”
So rather than benefiting Democrats, the new battle over abortion may be a replay of the 2003 debate over “partial birth abortion” which benefited George W. Bush in his reelection bid. Democrats have predictably denounced the new restrictive abortion laws while showing no signs of being willing to accept any particular time limits on terminating pregnancies. For his part, President Trump has criticized the Alabama abortion law for going too far while also strongly denouncing New York’s highly permissive approach. Advantage Trump.
Meanwhile the Supreme Court will be able to monitor a variety of lower-court challenges to these new laws which will in time give the justices an opportunity to select the specific case or cases they might use to rewrite Roe. At which point Democrats will have to be “kept comfortable” while the decision is reached whether or not to terminate it.
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