If the final ruling of the U.S. Supreme Court on Dobbs v. Jackson Women’s Health Organization matches the draft opinion leaked by Politico Monday, it would immediately return all regulation of abortion to the states.
Alabama already has a law in place, designed to challenge Roe v. Wade, that would most likely make almost all abortions illegal immediately.
Eric Johnston, a Birmingham attorney who authored the 2019 abortion ban in question, said the process would move very quickly if the final opinion matches exactly the leaked opinion.
“It would be a very simple procedure at that point,” Johnston said. “The law is in trial court in Montgomery under a preliminary injunction. That’s not a ruling on merit of the law. The attorney general would file to dismiss the case on the basis of the Dobbs opinion and Judge Myron Thompson would be obligated to dismiss the case.
“I would think if it is announced on June 30, which is the last day of the SCOTUS session, the attorney general would file it by the next day,” Johnston said. “I would think Steve Marshall would be right on top of that. How long it would take Judge Thompson to come to grips that he would not be able to enforce it may take several days, but he would be obligated to. He’s been very partial to the abortion side. He never found (a law limiting abortion) in any way that he liked.”
All of that is speculative though, Johnston qualified, as the leaked opinion is two to three months old and there is still until the end of June for the justices to reach a final ruling.
“Opinions go back and forth a whole lot before they come to an agreement, particularly on difficult opinions,” Johnston said. “It could be that the final opinion is not as clear. There may be nuances that require adjustments to Alabama law or an interim law that needs to be drafted.”
Johnston said the confusion created by leaking a draft of the opinion is why the court’s secrecy is important. However, he said he doesn’t expect the leak to impact the court’s decision.
“I think the court respects itself,” Johnston said. “I think they’ve come together, including the liberal ones, and are very upset this was leaked and that the process was impugned by political shenanigans. I expect they’re going to be very angry, but you’ll never know because they’ll never speak about it.”
Johnston has previously spoken about the 2019 law’s design specifically to challenge abortion. It is why, he said, the law does not include exceptions even for the most extreme cases of rape and incest.
Rep. Terri Collins, R-Decatur, who sponsored the bill in the Alabama Legislature, told AL.com Wednesday that she would support a bill adding exceptions for rape and incest to the law if the Dobbs opinion holds.
President Joe Biden warned Tuesday that the opinion could put other rights in jeopardy.
“Every other decision based on the notion of privacy is thrown into question,” Biden told reporters before flying to Troy to tour Lockheed Martin. He added that any judgment on where life begins “goes way overboard.”
The Dobbs opinion does not directly address personhood, instead taking the position that Roe failed to show an implied Constitutional right to abortion, in part because it is not “deeply rooted” in American judicial history.
