If Roe v. Wade is overturned, then what in Alabama?

The U.S. Supreme Court appears poised to overturn the 1973 Roe v. Wade decision, which, at the time of the ruling, legalized abortion on demand.

Should the leaked draft majority opinion authored by Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Organization become the new precedent, each individual state would determine the laws governing abortion.

Alabama’s situation becomes very interesting under this scenario.

In 2019, the Alabama Legislature passed the Human Life Protection Act, which banned abortion with limited exceptions.

Later that year, a preliminary injunction was issued by U.S. District Judge Myron Thompson, effectively blocking the law from being enforced, and that is where it remains today.

However, when the high court hands down the new opinion, that preliminary injunction is likely to be dismissed, and the Human Life Protection Act would go into effect.

The Human Life Protection Act criminalizes abortion, with the lone exception being when the mother’s life is endangered.

There are no exceptions for pregnancies resulting from rape or incest.

It seems very strict, but first, consider how we got here.

In 2019, the Alabama Legislature sought to pass a law challenging Roe v. Wade based on establishing personhood inside the womb. The 1973 ruling denied so-called personhood to the fetus.

However, then-Supreme Court Justice Harry Blackmun acknowledged in the Roe v. Wade majority opinion that if personhood were established, Roe v. Wade would collapse, and that “person” would be protected by the 14th Amendment.

If the goal of Alabama’s 2019 law was to challenge the personhood question, exceptions for rape and incest would diminish the personhood argument.

“The biggest thing to attack it with is to say, ‘What, you’re not going to include rape and incest?’” the law’s chief sponsor, State Rep. Terri Collins, R-Decatur, said, laying out the reasoning for excluding the exceptions in May 2019. “Well, how do we say, ‘The baby inside is a person unless they’re conceived in rape or incest?’”

Shortly after Collins made those remarks, the Legislature passed the legislation and Gov. Kay Ivey signed it into law.

Alabama’s law never made it out of federal district court, but it’s still law even with the injunction.

Suddenly, Alabama is the dog that caught the car.

The questions become this: What, if anything, should the Legislature do? What is politically feasible?

Early on, there seemed to be a willingness to go back and add exceptions.

If the justification for such a Draconian law was meant to be a test for the Supreme Court, is it a practical law to enforce without those exceptions?

Then there are moral and ethical questions to debate. Are the people of Alabama prepared to have a law that would force a woman or girl to carry the child of a rapist?

Is that the “socially conservative” position? Is that the position Alabama Republicans are prepared to defend as conservative?

Apply the same reasoning to pregnancies conceived in incest.

Yes, they are rare. However, it does not mean they do not occur.

The handful of members of the Alabama Legislature who have weighed in thus far does not seem interested in weakening Alabama’s existing law.

Some would argue this outcome is for the best. Fifty different states are 50 different laboratories of democracy. If you do not like the laws governing one state, go to another where they do things differently.

If things go the way they appear, abortion will be illegal in Alabama.

Left up to the state government in California, abortion may be encouraged, subsidized and allowed up until birth or even beyond in some cases.

That stark contrast may lend itself to a perception of diversity. But that potential level of diversity is not a strength as the slogan suggests. It suggests some severe cultural divisions in America. Can a nation survive that far apart on its values systems?

Name a time in the history of human civilization something like this has worked.

Still, the abortion question remains unsettled. Roe v. Wade was never satisfactory and lingered for 50 years because it never addressed the fundamental question — when does life begin?

Does it begin at conception? The first heartbeat? Birth?

You’ll get different responses to that question given the politics or religion of that individual, but until society answers that question, the debate on abortion will rage on.

The likely result is it continues to be a political wedge issue.

Despite the hysteria ginned up by Democratic politicians and victory laps taken by Republican politicians, it will still be used in election contests to motivate voters.

When it seems like the culture wars go away, they never really do. The flame dies down, but the fire is still there, ready to be stoked.

Abortion was an afterthought during the 2020 election, but it will be a dominant theme in the 2022 midterms.