By Jonny Lupsha, News Writer

Alabama has signed the nation’s strictest anti-abortion bill into law, The Guardian reported. The Alabama Human Life Protection Act makes no exceptions for instances of rape or incest, making it the strictest abortion law in the nation. Some say the Constitutional right to privacy makes the law unenforceable.

In a statement issued by Alabama’s governor’s office, Gov. Ivey likened the new bill to an abortion ban that has been part of Alabama law for more than a century. “As today’s bill itself recognizes, that longstanding abortion law has been rendered ‘unenforceable as a result of the Supreme Court’s decision in Roe v. Wade,’” the governor said. The statement also said that this new bill is likely unenforceable for the time being, but that she believes it’s time to revisit the national laws on abortion. Meanwhile, opponents of the bill call it an encroachment on women’s rights to privacy under Roe v. Wade, often citing the absence of bodily autonomy women would face, and state that the current federal ruling should stay intact. The legality of the issue is complicated.

Implied Privacy in the Constitution

One of the reasons that the subject of abortion has been so prevalent for lawmakers is because of some ambiguity in the U.S. Constitution and the Bill of Rights with regards to personal privacy. A Connecticut state ban on the use of contraceptives by married couples was struck down in Griswold v. Connecticut in 1965. “The Supreme Court struck down this law as an unconstitutional infringement of married couples’ right to privacy,” said Professor Jeffrey Rosen, Professor of Law at The George Washington University Law School. “The Court famously defined this right—which is not enumerated in the Constitution—as emanating from the ‘penumbras, formed by emanations’ from specific guarantees in the Bill of Rights. These various penumbras created a zone of privacy into which the State cannot enter.”

In other words, there are implied rights to privacy. Professor Rosen pointed out that the First and Fourteenth Amendments to the Constitution were previously cited to protect parents’ rights to educate their children in whichever way they deem appropriate. In addition, the Fourth Amendment, which protects citizens from the State unreasonably searching their homes, and the Fifth Amendment, which states the right for a person not to incriminate themselves, indicate an inherent right to privacy that aren’t explicitly stated.

Historic Precedents Leading to Roe v. Wade

When deciding Roe v. Wade, the Court rebuked Texas’s position that life begins at conception and that “the State has a compelling interest in protecting human life from the moment of conception that outweighed the mother’s interest,” according to Professor Rosen. Supporters of Alabama’s new bill, including Gov. Ivey herself in her statement, believe this decision was made in error. Here’s how it came to be.

To settle Roe v. Wade, the Court looked as far back as ancient Greece and Rome, where abortions were performed, and at English common law, which did not criminalize abortions performed prior to the “quickening” of the fetus. According to the American Pregnancy Association, the quickening is defined as the first fetal movements a pregnant mother feels, which are sometimes called “flutters” and occur as early as 13 weeks into the pregnancy. “It was not until the mid to late 19th century that the quickening distinction disappeared in U.S. law and states began to ban abortion at any point in gestation,” Professor Rosen said.

Whether we agree or disagree with Roe v. Wade and The Alabama Human Life Protection Act, and wherever our personal political and religious beliefs lie, Professor Rosen makes one final suggestion for considering the issue as it pertains to the Supreme Court. “As a constitutional matter, your answer should depend on how abstractly you think constitutional rights should be defined,” he said. “But remember, your choice will have consequences in cases where the politics look different. Whatever level of constitutional abstraction you choose, please be ready to apply it consistently in other cases whether or not you may like the particular result.”

Professor Jeffrey Rosen contributed to this article.
Professor Rosen is Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. He is also a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School.