Alabama said in a court filing Monday that U.S. Supreme Court precedent “regrettably requires” a federal judge to block the state’s near-total ban on abortions from taking effect while a legal challenge plays out.
Attorney General Steve Marshall’s office gave that response after abortion clinics asked a judge for a preliminary injunction against the law, which would make performing an abortion a felony in almost all cases. One of the most stringent abortion laws in the nation, the ban is set to take effect in November unless blocked by the courts.
Emboldened by new conservatives on the nation’s highest court, Alabama is part of a wave of conservative states mounting legal challenges to abortion rights and seeking to return control of abortion to the states. But the state acknowledged that its abortion ban conflicts with Supreme Court rulings including Roe v. Wade, the landmark 1973 decision legalizing abortion nationwide.
Alabama said that while it hopes to eventually overturn those “tragically wrong decisions,” a federal judge is “for now” bound by them. The state said that any injunction should only apply to a ban on abortions before a fetus is viable, and that the ban should continue on post-viability abortions. However, existing Alabama law already prohibits abortions after 20 or more weeks after conception.
“For now, though, this court is bound by Roe … and these cases require that plaintiffs’ motion for a preliminary injunction be granted with respect to the act’s ban on pre-viability abortions,” a state attorney wrote in Monday’s filing. “But while Attorney General Marshall will ask the Supreme Court to overrule these obviously and tragically wrong decisions, until those decisions are overruled, plaintiffs are likely to prevail on their challenge to the act as applied to abortions of pre-viability children.”
U.S. District Judge Myron Thompson had asked the state to respond to the abortion providers’ request for a preliminary injunction. An earlier court filing also indicated that the state and plaintiffs might agree to an order to keep the law on hold until May 24, 2020 — a year from when the lawsuit was filed — to allow time to resolve the lawsuit.
Passed by the Republican-led legislature, the 2019 Alabama Human Life Protection Act would make performing an abortion at any stage of pregnancy a felony punishable by up to 99 years or life in prison for the abortion provider. The only exceptions would be when there is a serious health risk to the mother or the fetus has a lethal anomaly that would cause it to die shortly after birth.
The measure was immediately hailed by abortion opponents who hope new conservative justices appointed to the court by President Donald Trump would lead to Roe being overturned. But the hardline measure, which contains no exceptions for rape and incest, also had some national Republicans distancing themselves from Alabama by reiterating their support for those exceptions. Abortion providers, including Planned Parenthood, have sued to block the law.
Several states have approved legislation to ban abortion once a fetal heartbeat is detected. None of the laws have taken effect.
Republished with permission of the Associated Press.