Rachel Wineke

PAR 207

Mid-Term Assignment

07/02/2019

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Issue:

The State of Alabama recently passed a law banning almost all abortions in the state. The Alabama
Human Life Protection Act, House Bill 314 (HB 314), provides that the only exception to its ban are
pregnancies that pose a serious health risk to the unborn child’s mother. All abortions outside of this
exception are considered a felony at the hands of any doctor performing the procedures. The issue at
question is if the enactment of this law would be considered unconstitutional.

Rule:

The applicable rule most relevant to HB 314 is the landmark decision of Roe v. Wade, 410 U.S. 113,
(1973). The decision affirmed the Texas District Court’s opinion that the Texas Penal Code Articles 1191-
1194 and 1196 prohibiting abortions at the time were unconstitutional.

However, Roe, granted the appellant’s request for injunction that the Texas District Court had not. This
injunction was to stop the enforcement of the rule and punishment of offenders. Roe decided the
following key factors:

• Those in their first trimester have broad liberties in deciding along with a licensed physician
whether or not to perform an abortion.
• Those in their second trimester may be subject to state regulation of the abortion only in
matters reasonably related to maternal health.
• Those pregnant to the point of viability, or when a fetus could likely survive outside the womb,
may be subject to state regulation or even prohibition of abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the life or health of the mother.

Another case of precedent over the issue at hand is Planned Parenthood v. Casey, 505 U.S. 833 (1992).
This case encompassed a total of five issues to question regarding the Pennsylvania Abortion Control Act
of 1982. Regarding the issue at question with HB 314, a particular one of the matters should be noted as
it modified the ruling of Roe and relates directly to HB 314’s provisions:

• Planned Parenthood adjusted the point of viability, reducing it from 28 weeks to 23 or 24 weeks.

Analysis:

The Alabama ban HB 314 directly conflicts with Roe and Planned Parenthood. Roe and Planned
Parenthood were decided with respect to the Due Process Clause of the Fourteenth Amendment of the
U.S. Constitution, U.S. Const. amend. XIV. This Clause says that no State shall “deprive any person of life,
liberty, or property, without due process of law.”
Looking at Roe, The Supreme Court held that the Texas Penal Code banning abortions deprived women
of that liberty. For a state to create a law directly challenging a Supreme Court decision based on a
Constitutional Amendment is unconstitutional.

A counterargument to this point on the Fourteenth Amendment could suggest that the Clause
also works against Roe’s opinion.

Since the Clause says States shall not deprive any person of life, this could also mean it should
not deprive the unborn of life. This same arguer could also bring up Alabama’s definition of a
“person” in its state laws concerning homicide. Under the scope of Alabama state law, “person”
does include an unborn person at any stage of development.

However, this counter argument would not win against the Roe decision pursuant to the Fourteenth
Amendment’s definition of “persons” as it does not include unborn children, fetuses, or embryos but
only includes postnatal beings. No matter if the state of Alabama’s statute on homicide considers an
unborn child a person, the Constitution still trumps it.

Another counterargument could claim that regardless of the “person” definition, the Fourteenth
Amendment protects against the deprivation of life and that they believe life begins at
conception.

This counterargument would not win either. In Roe, Justice Harry Blackmun stated that this subject is
not for debate. A mutual or agreed upon determination on the exact moment life begins does not exist
between medical, philosophical, and theological professionals. Therefore, it is not for the law to
determine and the factor of viability is used for adjusting protocol instead.

Retreating to the structured protocol set forth by Roe and Planned Parenthood, HB 314 also disregards
the framework for the timeframe of pregnancy. The two aforementioned cases break down what is legal
in the three stages of pregnancy and those different outcomes, from first and second trimesters to
ultimate viability. HB 314 looks to rule over all pregnancies at any point during the pregnancy, regardless
of the trimester or viability. This is another conflict between HB 314 and constitutional case precedent.

This reaffirms the previous point made on this issue that laws seeking to alter or overturn the ruling of
Roe are unconstitutional. Additionally, Alabama presented a different abortion ban in 2015 looking to
outlaw a specific pregnancy termination procedure, the dilation and evacuation procedure. This was
struck down in 2016 and when petitioned to the Supreme Court, it was denied due to conflict with Roe.

Conclusion:

Looking to the powers granted to the Supreme Court by the Constitution and its applicable provisions,
there is sufficient case law precedent to deem the HB 314 ban unconstitutional.

References:

Roe v. Wade, 410 U.S. 113, (1973)

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

U.S. Const. amend. XIV

Texas Penal Code Arts. 1191-1194 and 1196 (1973)

Thomsen, “Supreme Court rejects bid to restore Alabama abortion law,” The Hill, June 28, 2019
https://thehill.com/policy/healthcare/450846-supreme-court-rejects-bid-to-restore-alabama-abortion-
law