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The Legal Strategy Behind Alabama and West Virginia's New Anti-Abortion Amendments

Both amendments were patterned after a successful policy change in Tennessee.
Pro-life activists participate in a rally at the National Mall prior to the 2018 March for Life on January 19th, 2018, in Washington, D.C.

Pro-life activists participate in a rally at the National Mall prior to the 2018 March for Life on January 19th, 2018, in Washington, D.C.

A major takeaway from Tuesday's mid-term elections is the potential restriction of abortion rights in Alabama and West Virginia. Voters in both states approved amendments to their constitutions that would make it easy for lawmakers to ban abortion in the absence of Roe v. Wade.

Both amendments include the language, "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion." That's an echo of Tennessee's groundbreaking anti-abortion amendment, which was approved by voters in 2014 and became law in 2015.

These aren't quite "trigger laws," the statutes on the books in Louisiana, Mississippi, and the Dakotas that would automatically spring into action to ban abortion in the event that Roe is overturned. (Other states have similarly unenforceable laws, but they aren't explicitly pegged to Roe in the same ways.) The new amendments wouldn't outlaw abortion on their own. Instead, they would eliminate constitutional challenges to abortion bans in the absence of federal policy. Without Roe, state legislatures could pass abortion restrictions and bans that would be legally backed up by the state constitutions.

Changing state constitutions has long been a pro-life legal tactic. Back in 1986, Rhode Island amended its constitution to read: "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied protection of the laws. ... Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof." That clause prevents courts from interpreting that language (which includes provisions for "the protection, safety, and happiness of the people," "the good of the whole," anti-discrimination language, and more) to protect the right to an abortion.

In 1988, Arkansas passed Amendment 68, which says much of the same—"The policy of Arkansas is to protect the life of every unborn child from conception until birth"—and bans public funds for abortion. Later that month, the New York Times reported on the phenomenon of well-organized efforts to lay a favorable legal framework that would guide policy after a potential overturn of Roe v. Wade.

But according to pro-life groups, the true model for the two new amendments is Tennessee's 2015 constitutional change, which was the culmination of a decade-long battle against abortion rights.

For years, Tennessee was a haven for abortion care in the South. That's because, in a 2000 Tennessee Supreme Court case, Planned Parenthood v. Sundquist, the court found that the state's constitution provided stronger abortion protections than the federal constitution. It also invalidated many of Tennessee's abortion restrictions, including a 48-hour waiting period, hospital requirements after the first trimester, and mandated physician counseling. The court concluded that "a woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution." (Pro-choice advocates note that Tennessee was a destination simply because of its geography—it borders eight different states and its biggest cities are a drive of an hour or less from state borders.)

After the ruling, pro-life activists began working to change the state constitution. The 2010 elections put a pro-life supermajority in the state General Assembly, and, in May of 2011, the body approved the text of Amendment 1, which includes the key phrase "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion." Tennessee's amendment procedure meant it had to wait until November of 2014—the next gubernatorial election—for voters to approve it as a ballot measure.

The Yes on 1 coalition campaigned heavily through the state, boosted by partnerships with smaller pro-life groups and religious organizations; ultimately, Amendment 1 passed with 53 percent of "yes" votes and was signed into law in 2015. There were federal court challenges (namely centered around the text of the Tennessee amendment process and numbers of ballots that didn't include a vote for governor), but the Sixth Circuit Court of Appeals upheld the amendment in February of 2018. Since the amendment passed, Tennessee has again implemented 48-hour waiting periods, a ban on public funding, and a ban on abortion after viability.

West Virginia and Alabama weren't as permissive as Tennessee before their amendments passed. West Virginia only has one abortion clinic, in Charleston, and women must receive state-directed counseling and wait 24 hours before their procedures. However, the state currently allows Medicaid funds to cover abortion costs; under the new amendment, that allocation could be revoked. In Alabama, there is a 48-hour waiting period, a ban on public funding for most abortions, and mandatory ultrasounds.

West Virginia's amendment, which passed with about 52 percent of the vote, only adds the line from the Tennessee amendment—that nothing in the state constitution affirms a right to abortion. But Alabama's amendment, which passed with a 59 percent "yes" vote, goes even further than the other two. The state constitution will now read that it is "the public policy of this state to ensure the protection of the rights of the unborn child" and to "support the sanctity of unborn life." That language tips toward fetal personhood, a legal doctrine that's been used to criminalize the actions of pregnant people—whether that's taking drugs or refusing medical interventions.

Meanwhile, a measure in Oregon that would have banned public funding for abortion was resoundingly defeated.