Republicans in Washington expressed concern on Wednesday over Alabama’s new ban on nearly all abortions, fearing that the law was either too harsh or would be a strategically weak launching pad for overturning Roe v. Wade.
The bill signed into law by Gov. Kay Ivey (R) bans almost all abortions in the state, even in cases of rape or incest. It garnered headlines for the harsh penalties it would place on those who perform abortions—anywhere from life or 10-99 years in prison. And it was criticized by pro-choice activists as a deadly, thinly veiled attempt to strike down Roe v. Wade.
Social conservatives hailed the measure as the purest legislative distillation of anti-abortion principles. But even some staunch conservatives cast doubts on the effort.
Rep. Mike Rogers (R-AL) told The Daily Beast that, in theory, passing state laws to jumpstart a legal challenge to Roe was a smart idea. But Rogers said he disagreed with the Alabama bill’s language on cases of rape and incest.
“I worry that if they’re that rigid, how that may impact the Supreme Court’s ultimate view of what they’re trying to do,” said Rogers.
“My hope is one of the other bills that has the exception in it actually gets to the court,” he said, referencing legislation in other states to restrict abortion access. “That has a better chance of overturning Roe than the Alabama bill does.”
The skepticism from Rogers reflected the broader mood of national Republicans. Not many were willing to offer defenses of the Alabama bill on its merits, choosing instead to talk legal strategies or point the finger at the opposition. Asked whether President Trump supports the Alabama law, Judd Deere, a spokesman for the White House, offered a statement that didn’t reference the law.
“Unlike radical Democrats who have cheered legislation allowing a baby to be ripped from the mother’s womb moments from birth, President Trump is protecting our most innocent and vulnerable, defending the dignity of life, and called on Congress to prohibit late-term abortions,” the statement read.
The politics of abortion rights can be tricky, but public polling on laws like Alabama’s is remarkably clear. A July 2018 Quinnipiac poll found that two-thirds of Americans believed that abortion should be legal in all or most cases. Over three-quarters of Americans, meanwhile, believe abortion should be legal if the pregnancy was caused by rape or incest, a 2015 Quinnipiac poll found.
Faced with these data points, Republicans have sought to restrict abortion with somewhat more legislative precision than in Alabama, where the only exceptions to the bans are for the life of the woman and for instances in which the fetus has a fatal anomaly. In Georgia, Kentucky, Ohio and Mississippi, state lawmakers have passed so-called “heartbeat” legislation that would keep the rape and incest exceptions but dramatically curtail abortion rights by limiting the ability of a women to get the procedure after six weeks of pregnancy.
Those efforts, too, have been made with an eye on the Supreme Court, where a legal challenge to these laws appears to be headed. Conservatives believe that the confirmation of Brett Kavanaugh to the court last year places Roe on tenuous ground. And at least one other Alabama Republican on Capitol Hill sounded was optimistic than Rogers that the state’s law would be the vehicle to get the court to flip.
Rep. Bradley Byrne (R-AL) said “it’s going to set up a very interesting decision by the United States Supreme Court.”
“Well, we certainly have to have some test,” he told The Daily Beast, “and that’s as good as any.”
But Byrne was an anomaly on Wednesday. Other Republicans either denounced the law as having gone too far (as Sen. Susan Collins, an abortion rights supporter, did) or, more often, avoided discussing it altogether. Sen. Richard Shelby, the most senior Alabama lawmaker in Washington, told reporters that he supports the exceptions on abortion restrictions in the cases of rape, incest, and the life of the mother, which are codified in the Hyde Amendment that prohibits federal funding for abortion. But he declined to say whether he supported his own state’s law in substance or as a way to force a Roe challenge.
The Trump 2020 campaign, meanwhile, referred The Daily Beast directly to the White House for a response to the bill. But it did issue a statement concerning the president’s anti-abortion positions generally.
“The American people support life, and they have a President who fights for life as Democrats promote the inhumane extermination of life and trample on the ‘life, liberty, and pursuit of happiness’ all Americans are entitled to—even the most vulnerable among us,” said Kayleigh McEnany, Trump’s national press secretary.