(CN) — The Alabama Senate threw down the gauntlet Tuesday evening and passed the nation’s most restrictive anti-abortion bill, criminalizing the procedure as a felony, in an attempt to create a test case to challenge Roe v. Wade.
Also Tuesday, the day the state’s senators voted 25-6 to make performing abortions in Alabama a felony, the American Civil Liberties Union of Alabama vowed to challenge the state’s legislation that bans the procedure even in cases of rape or incest.
“The ACLU of Alabama, along with the National ACLU and Planned Parenthood, will file a lawsuit to stop this unconstitutional ban and protect every woman’s right to make her own choice about her healthcare, her body, and her future,” Randall Marshall, executive director of the ACLU of Alabama, said in a statement. “This bill will not take effect anytime in the near future, and abortion will remain a safe, legal medical procedure at all clinics in Alabama.”
Citing the recent amendment to the Alabama Constitution that declares it is the policy of the state to support unborn life, the bill makes performing an abortion in Alabama a class-A felony, punishable by up to 99 years in prison. According to the legislation, the woman receiving the procedure would not be criminally liable.
“The 14th Amendment says that we should not be deprived of life, liberty and property,” state Sen. Clyde Chambliss, a Republican, said Tuesday in support of the bill. “So life is the question. When does a life become a life? And right now legally, we don’t know the answer to that question.”
With the state capital Montgomery deep in the Bible belt, the debate raged over when people and legislators are playing God. Are people playing God when they decide to have an abortion? Or are legislators playing God by making the decisions for people facing an unwanted pregnancy?
In the face of a supermajority of Republican colleagues, Democratic lawmakers proposed a handful of amendments, ranging from requiring lawmakers who voted for the legislation to pay for the state’s legal fees, to directing the state to increase Medicaid, to criminalizing vasectomies. All fell to overwhelming nays in roll-call votes.
A few Republican lawmakers crossed the aisle when state Sen. Bobby Singleton, a Democrat, proposed putting the rape and incest exceptions back in the bill. But with only 11 ayes, that amendment too failed.
Speaking after his amendment failed, Singleton said the abortion legislation would prevent Alabama from attracting businesses, and would rack up legal fees even as the state’s children’s health insurance program faces a budget shortage.
“You don’t care about babies for real; you just kicked them in the stomach and you aborted them yourself,” Singleton fumed. “You just aborted the state of Alabama with your rhetoric with this bill.”
For Eric Johnston, president of the Alabama Pro-Life Coalition and the lawyer who helped craft the bill, the lack of carve-outs for rape and incest was an important part of the bill, to make a clean test case that could be taken up by the U.S. Supreme Court. Adding an exception would have doomed the legislation, he said, because it would have created an inconsistent legal argument.
In the decades after the 1973 Roe v. Wade ruling, anti-abortion advocates attempted to restrict abortions through incremental regulation. Exceptions for cases of rape and incest have been common fixtures of that kind of legislation.
In passing its legislation, Alabama joined a list of states to pass abortion restrictions recently, including Georgia, whose governor signed law banning abortion after six weeks after conception, when many women do not know whether they are pregnant.
More than a dozen lawsuits dealing with abortion are already working through the federal court system.
But that did not deter Johnston.
“The Supreme Court may wait two, three years before it has enough conflict and enough opinions from lower courts to decide it will grant cert on two or three of them and review them all,” Johnston told Courthouse News. “So I don’t think we’re behind the curve. We’re making a real clean statement of what we think the law ought to be.”
In the meantime, advocacy organizations are turning to the legal research they’ve compiled.
Phil Williams, director of policy strategy for the Alabama Policy Institute, said it is likely the conservative think tank will submit amicus briefs regarding the legislation, pulling from research it keeps on file and information gathered more recently.
In the past, Alabama’s legal fights with the ACLU over its abortion regulations have resulted in hefty legal fees. In one case, Alabama had to pay for the organization’s legal fees after it lost in court: a $1.7 million price tag.
Marshall of ACLU of Alabama told Courthouse News he believes the national ACLU office has been prepared for more than a year to defend Roe v. Wade from a challenge.
“I think that there’s going to be some serious considerations for how this affects the legitimacy of the court,” Marshall said. “If they just willy-nilly start overturning decades of precedent, then they do look more and more like a political arm as opposed to an independent judicial arm.”
The Alabama Attorney’s General Office did not respond to a request for comment last week.