Constitutional Law

The Hypocrisy Of Alabama Is Staggering

What does it say that the state with the strictest abortion law also institutes one of the most cruel, constitutionally violating mass incarceration systems and is among the lowest in education levels?

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A key element of the strictest abortion bill in the country signed by Alabama’s governor Kay Ivey is a legal recognition of the unborn, from the moment of conception, as a human being entitled to expanded protections by the state. There are many reasons why this is a preposterous legal position. For example, such a standard should, or would, make it illegal to ever imprison a pregnant mother without first putting the unborn on trial. Thankfully, our current standard is far superior.

In Planned Parenthood v. Casey, the United States Supreme Court reaffirmed the controlling word in the Constitution over the issue is “liberty” and that it comes from the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property.” That the term liberty encompasses such self-regarding acts as procreation decision-making is to me self-evident. Moreover, nothing within the Constitution’s current text gives any indication that government power is extended over something as inherent to an individual’s personal liberty as when to have a child.

However, it is also undeniable that this self-evident liberty has self-evident limits where the state’s interest in protecting life can undeniably override individual autonomy. Although a workable line can and must be drawn, it is obvious that the only conceivable line the state could make (and the one the Supreme Court in fact drew), is at viability of the unborn. Prior to viability, the Court has held, “the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the women’s effective right to elect the procedure.” Moreover, if advancements in medicine have moved the point of viability, members on the Court were explicit that the line where personal liberty ends can be redrawn.

In practice, executing this liberty has thankfully not resulted in an increasing rate of abortions. Over the past 25 years, in fact, abortion rates have fallen drastically in every developed country around the world, including the United States. Accordingly, I am continually perplexed that in an era of drastically decreasing rates, a radical fringe continues to make overruling Casey one of the most pressing issues in modern politics. In my view, these radical pro-life groups are as out of touch with reality as radical anti-gun advocates who in an era of drastic decreases in rates of gun violence, nevertheless insist that heavy-handed and broad prohibitions on guns are necessary. In short, nothing about the anti-gun or pro-life prohibitionist’s arguments makes any sense.

Sadly, the inexplicable obsession by certain sections of the populations with heavy-handed and broad prohibition laws never seems to abate, no matter the evidence that can show such policies produce more harm than good. What makes the issue of abortion unique to anti-prohibitionist arguments is that whether a post-Roe era is upon us or not, the availability of easy-to-administer abortion-inducing pills has made it incredibly difficult, if not downright impossible, to police an inevitable black market. In other words, prohibition of abortion prior to viability will do little, or more likely nothing at all, to prevent such abortions. Yet, prohibition will cost a great deal of resources to enforce while better methods to fight abortion exist.

Given the realities, it is difficult to understand why anyone, even the most dogmatic pro-lifer, would continue to see wholesale prohibition as a viable or even moral solution. Even more difficult to understand is the justification cited by Alabama’s governor when signing the abortion bill as being “a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” Because in Alabama, the idea that every life is viewed as sacred is refuted by all available evidence.

For example, if you have the stomach for horrific detail, read about the Alabama prison system where rape, murder, and suicide (not to mention exceptionally disproportional rates of incarceration by race) are regular occurrences due to Alabama’s gross unconstitutional negligence towards protecting life. Furthermore, if you are a woman in the Alabama prison system, it is not just the other inmates that you have to worry about sexually assaulting you, it is the prison guards you should fear more. Even if you think that prisoners deserve be treated this way and denied constitutional protection against cruel and unusual punishment, these are hardly the actions of a state with a “deeply held belief that every life is precious and that every life is a sacred gift from God.”

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Remember, this is a state that elected Roy Moore as its chief justice, twice. A state that nearly elected Moore to the United States Senate despite credible child abuse allegations. A state that could very well elect Moore (as the Republican nominee at least) in the upcoming Senate race. The current president, who many evangelicals see as a pro-life champion, disgustingly made robocalls supporting Moore’s run for the Alabama Senate seat even after the credible allegations against him surfaced. Yet, I am supposed to believe these same people, and those who support/elect them, view all life as sacred?

Lest we also forget, Alabama is the state that for decades elected to the U.S. Senate “the doughty bigot” Jefferson Beauregard Sessions. Ol’ Beauregard is an avid pro-lifer and chief architect of a gratuitously cruel family separation policy that sought to inflict pain on migrant children fleeing violence, war, and persecution and to make sure that future asylum seekers were aware of that pain. Like Radley Balko, I would love to see in places like Alabama a “Venn diagram of abortion opponents who claim to be championing the lives of children vs. those who would deny entry to migrant children fleeing violence, war, and persecution.”

The bottom line is nothing about Alabama even remotely suggests the state or its people possess a deep belief that every life is sacred. In fact, by virtually every metric for which a state could be measured by the value it places on human life, such as a fair due process system, education, and opportunity, states like Alabama are ranked consistently at the bottom. It has been obvious from its beginning that something is rotten in the state of Alabama. Equally obvious is that other, sinister factors — wholly outside of a belief in protecting all life — have been driving state policy there for some time.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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