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Bull Moose: Recalling Roe v. Wade in the face of Alabama’s ‘Human Protection Act’

Earlier this month Alabama Governor Kay Ivey signed into law ‘The Alabama Human Protection Act’ passed by both the Alabama House and Senate entitled. This law, which does not take immediate effect, bans all abortions except:

…activities if done with the intent to save the life or preserve the health of an unborn child, remove a dead unborn child, to deliver the unborn child prematurely to avoid a serious health risk to the unborn child’s mother, or to preserve the health of her unborn child. The term [abortion] does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy, nor does it include the procedure or act to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.

The law is now the most restrictive law outlawing abortion in the United States. But punishments for doctors performing procedures contrary to it could lead to a custodial sentence of up to ninety-nine years.

It appears many have not actually taken the time to read the law. As is the case with most laws, hysteria makes more waves than actual discussion and it is no different in this case. It is worth taking a moment to check and see exactly what Alabama achieves.

The law recognizes that a person is, ‘A human being, specifically including an unborn child in utero at any stage of development, regardless of viability.’  The law is designed to protect that human life because,

In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful…

It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin’s regime in Soviet gulags; 2,500,000 people were murdered during the Chinese ‘Great Leap Forward.’ in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged as Crimes Against Humanity. By comparison, more than fifty million babies have been aborted in the United States since the Roe v Wade decision of 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin’s gulags, Cambodian killing fields, and the Rwandan genocide combined.

What the Holocaust, or Pol Pot’s purges have to do with abortion or an unborn fetus is unclear. It is equally unclear where the number of fifty million abortions comes from – the mind boggles that Alabama is using a national statistic to justify a specifically Alabama law.

It is really unclear why this law quotes from the Declaration of Independence, which is a statement of principles not an actual law or part of any American Jurisprudence. Indeed, Justice Anton Scalia, among the most conservatives judges to have served on the Supreme Court, was fond of heckling any student or lawyer who cited the Declaration as precedent.

In short, this law was written by an individual or individuals who knows nothing about the laws that govern this nation, passed by lawmakers that seemingly didn’t read it – even though the legislation is actually only about four pages in length – and signed off by a Governor who wants to make a political statement.

Now for some real law. Roe v Wade (and its counterpart Planned Parenthood v. Casey) established that the Due Process clause of the 14th Amendment to the U.S. Constitution provides a fundamental ‘right to privacy’ that protects a woman’s right to have an abortion.  This ‘right’ is not absolute however, and must be balanced by the government’s interest in protecting a woman’s health and protecting prenatal health. That’s the law as it stands: women have a fundamental right. This is the important part: her right may be balanced by interests of government or the health of the fetus but is the woman’s right not the government’s or the fetus’s.

Alabama’s law takes away that right almost fully, and only recognizes the interests of the government and the fetus. For that reason alone the law cannot last.

There has been much ink spilled over this law and many more tweets. The President and many Republicans have distanced themselves from the law stating, in effect, that it goes too far. Governor Ivey is also rumored to have said she does not expect the law to be upheld by the Supreme Court.

This brings us to the twofold crux of the matter: first, we have a law that is being passed not for the sake of women but for the government’s interest in preventing abortion. This is a big leap for a Political Party that has at its base a philosophy of endeavouring to keep government out of people’s lives.

Secondly, this law probably wasn’t even written by the people who passed it. It has been a long time since lawmakers in the US have taken the time to write laws. Laws are written by special interest groups and then copied wholesale onto State and Federal Letterhead where they are signed into law by Executives who have taken even less time to read what is in front of them.

And it has to stop.  Alabama’s brainless and brazen effort to make headlines in their attempt to overturn forty-five years of American Jurisprudence makes a mockery of the process and the people they govern. It is shockingly insensitive to try and relate the Holocaust to the reproductive choices of many American women. This choice is intensely personal and excruciatingly difficult to make. If only this was an isolated event. In fact, this happens at all levels if State and Federal Government.

It is time for American lawmakers to make at least a good faith effort to offer laws that they at least have a hand in crafting. Writing the laws is their job and they ought to start performing that role.

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