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Challenging Orthodoxies: Alabama’s Anti-Abortion Law


It seems like a grand ploy of massive distraction. On the surface, the move by Alabama to place the most onerous restrictions on the granting of an abortion has become a lighting-rod of conviction for Democrat agitators. And not just them.

The fear, and one with suggestive implication, is that various legislatures are paving the way to push Roe v Wade into the domain of a Supreme Court so conservative it is being touted as reactionary. Colorado lawmakers, earlier this year, made a similar attempt to pass a bill banning elective abortions every bit as nasty as the Alabama version. The feeling is that the 1973 decision will be terminated in the name of foetus worship taking way the injunction against states from interfering in a woman’s right to an abortion within the first trimester.

Roe was never, in truth, such a radical innovation in the field of social reform. It, for one, heavily circumscribes the way choice operates for a woman in terms of her relationship with the foetus. It’s celebration of a woman’s autonomy leaves the designation of how it is used, not in the hands of the carrier, but the Supreme Court.

What certain stone throwing conservatives have repeatedly disliked about it is that the decision was reformist at all. “Roe,” tut tuts Rich Lowry of the National Review, “is judicially wrought social legislation pretending to the status of constitutional law.” It was a product of such judicial activism that produced the Miranda and Griswold cases, “as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.”

Lowry’s swipe belies the broader problem facing anti-abortion advocates, many of whom simply think that the legislators in that good red state have lost the plot. The Alabama move is being seen on the part of some on the right as too extreme, painting advocates who favour limiting abortion into a narrow, extreme corner. In the words of conservative pundit Jonathan V. Last, having such a law was the very counter-reproductive thing the movement feared, “the most damaging development to the pro-life movement in decades.”

HB314 is a heavy artillery shell for the anti-abortion movement, reclassifying abortion as a Class A felony. The implication of this is gruesome enough: those found guilty of falling foul of the law, notably those providing such services, may spend up to 99 years in prison.

Alabama governor, Kay Ivey, ennobled bill HB314 with words mindful of the great Sky God that continues to mark significant stretches of US political thought. (In Freedom’s Land, the unseen and unknowable have traditional anti-democratic tendencies.) “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” HB314’s sponsor, Rep Terry Collins, was attempting to be more pragmatic in a political sense, claiming that HB314 was part of the grand plan to subvert and ultimately sink Roe v Wade.

The media presses in Alabama have been filled with pungent responses, many indignant, others glazing in their holy reflection. A Guest Voices segment for AL.com, part of the Alabama Media Group, made rich reading. Rene Washington of Birmingham refused to accept the anti-abortion rights law as one of protecting life. “The abysmal statistics on children’s health and welfare prove that.” The ban was a traditional, based on old issues of control, be they “religious, patriarchal and cultural.”

Savannah Crabtree, keen to remind us of her age (23 years old), wrote of having a uterus and living in the state of Alabama. “And I am scared.” A troubled Crabtree was puzzled that the governor had expressed no reservation, racing the bill into law. “I hoped that maybe, because she is a woman, she’d empathize with a 12-year-old rape victim seeking an abortion more so than the 25 men who voted on the bill in the Senate did.”

The worriers and activists have come out. “This,” laments Democratic strategist Jess McIntosh, “is the endgame of many years chipping away at our freedoms.” For McIntosh, a tyrannical instinct is finally being played out in US jurisprudence – a play, as it were, to alter the court’s reformist agenda. “They’ve waited for the moment they believed the courts would overturn precedent and go against the overwhelming will of the people.”

For a strategist, McIntosh is far from sharp. (She did work for Hillary Clinton’s 2016 campaign.) The Alabama law, along with any aspiring facsimiles, risks falling at the first hurdle, given that an appellate court is bound to give defenders of the bill a good going over. The issue of placing “undue burdens” on a woman’s access to abortion services would come into play. As Kim Wehle explains, the Alabama law is “by any stretch” an “undue burden” because it entails no abortions except in instances where the “unborn child has a lethal anomaly” in order “to avoid serious risk to the unborn child’s mother” or in instances of “ectopic pregnancies” (where the fertilized egg finds itself implanted outside the uterus, often in fallopian tubes which might burst causing bleeding, infection and death to the mother).

Keeping the Democrats noisily busy is a Trump tactic, and he has kept markedly reticent on not wishing to push views on the Alabama move. A tweet re-iterated his stance as being “strongly pro-life, with three exceptions – rape, incest and protecting the life of the mother.” It was, he suggested, “the same position taken by Ronald Reagan.” Similar exceptions can be found in thirty-three states and the District Colombia, which allow funding for the tripartite list of exceptions. A range of superstitions dot the legislative provisions of other states: five, for instance, demand that women be counselled on a claimed link between abortion and breast cancer, one firmly lodged in the realm of fantasy.

Alabama’s HB314, however, in its crudely blanket application, leaves minimal room for exceptions. It is savagely onerous, even for conservatives. The wheels may well be in motion for certain brands of foetus defenders, but citizens with uteri can well be comforted that they will move in retarded fashion.

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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