MONTGOMERY, Ala. (Dec. 3, 2015) – A bill prefiled in the Alabama Senate would essentially nullify the Supreme Court decision in Roe v. Wade, along with subsequent cases, and make most abortions in the state illegal.

Sen. Gerald Allen (R-Tuscaloosa) recently prefiled Senate Bill 9 (SB9). The legislation would make it illegal for a doctor to perform an abortion on a fetus with a detectable heart beat in most cases.

The bill would require doctors to determine if the fetus has a heartbeat “pursuant to the applicable medical standard of care.” The law would prohibit the abortion if the doctor detects a heartbeat.

“It there’s a heartbeat, it’s a living person. Period,” Allen said.

The legislation does provide exceptions, allowing abortions for ectopic pregnancies, to protect preserve the life of the mother or if the baby has been diagnosed with a condition that will likely lead to death within three months of birth.

Doctors violating the law could be charged with a class C felony. It would not place any penalties on the mother.

In 2014, a similar bill passed the House but stalled in the Senate. Last year, it passed out of a House committee, but never made it to the floor due to focus on the budget.

Passage of the bill would undoubtedly set up a confrontation between Alabama and the federal government. The Supreme Court has held that states cannot regulate abortions before a fetus is “viable” – generally around 22 weeks.

The opinion of Supreme Court judges notwithstanding, the federal government lacks any constitutional authority to regulate abortions. This clearly falls within the objects James Madison said would remain with the state governments – “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

But in Roe v. Wade, the SCOTUS created a constitutional “right to privacy” out of thin air and enforced it on state governments through the “due process” clause of the 14th Amendment. Justice Byron White captured the absurdity of the ruling in a blistering dissent.

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

From a constitutional perspective based on the original meaning of the Constitution and the 14th Amendment, the Alabama law rests on solid ground. How it would play out in practice, should it pass into law, remains to be seen.

HB9 will receive a first reading on Feb. 2, 2016, and will be referred to the Senate committee on Health and Human Services.

Mike Maharrey

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