Alabama's Abortion Bill: What Happens When It Passes

MONTGOMERY, AL - Although the Alabama Senate has opted to postpone a vote on the bill that would criminalize abortions statewide until next week, the passage of the bill seems a certainty. However, what happens after Gov. Kay Ivey signs the bill into law - assuming she does - is still a source of confusion among Alabama voters.

The bill would make it a Class A felony for a doctor to perform an abortion and a Class C felony for attempting to perform an abortion unless there is a serious health risk to the mother. The bill included an amendment approved by the Senate Judiciary Committee this week that added an exception in the case of rape or incest. That amendment was almost tabled Thursday after Lt. Gov. Will Ainsworth approved a motion to strip the bill of the rape and incest exceptions without a roll call vote - against the request of Democrats in the Senate.

TAKE A LOOK: Lawmakers were discussing this bill that would have banned nearly all abortions. The Senate removed an amendment that added exceptions in cases of rape and incest. Right after a quick voice vote to strip the amendment chaos broke out. pic.twitter.com/rygpucN0s2
— Alabama Politics (@AlabamaPolitics) May" class="redactor-linkify-object">https://twitter.com/AlabamaPol... 9, 2019

"Abortion is murder," Ainsworth said in a statement. "Now that President Donald Trump has supercharged the effort to remake the federal court system by appointing conservative jurists who will strictly interpret the Constitution, I feel confident that the U.S. Supreme Court will overturn Roe and finally correct its 46-year-old mistake."

Some Republicans, including Senate President Pro Tem Del Marsh, R-Anniston, said they supported the exceptions for rape and incest. Marsh moved to adjourn shortly after the motion.

"It got a little chaotic on the floor, which is why I chose to carry it over to call of the chair, let people go home, talk to their constituents and come back," he said.

The bill is at the call of the chair, meaning it could be brought up again at any time. Marsh indicated he wanted to see a vote on the measure on Tuesday.

So what happens after Tuesday when the expected passage of the bill is a reality?

The ACLU of Alabama has promised to fight the bill if passed. The state paid ACLU of Alabama and Planned Parenthood $1.7 million in 2016 after a law requiring abortion providers to have hospital admitting privileges was ruled unconstitutional.

Some Alabamians have asked when the law would go into effect, or if it will go into effect while litigation is pending.

"My guess is that opponents of the legislation will seek an injunction that would keep the law from taking effect until it can be litigated," said Brannon Denning, Associate Dean at Samford University's Cumberland School of Law.

The process involved in bringing a case before the Supreme Court is complicated, but ultimately, Denning said, the SCOTUS decides what cases it will hear and which ones it will not.

"For all intents and purposes the SCOTUS has total discretion over its docket," Denning said. "Suit would likely begin in federal district court. The case would be appealed to the Eleventh Circuit. Then a losing party could apply for a writ of certiorari to the SCOTUS, which it may or may not grant."

Denning added, "Recently, the Court has received around 10,000 petitions but issued only 70-80 full dress opinions each term. Denial of a cert petition is, thus, the norm. Also, only four justices have to agree to grant the petition."

Is Alabama's abortion bill unconstitutional?

"If I understand the bill as it is described, yes," Denning said. "It is at odds with the 1992 Casey opinion that prohibits pre-viability regulation of abortion that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion."

Gov. Ivey has not given a public opinion on the bill, but is expected to sign it when it is passed.