MSNBC legal analyst Danny Cevallos told the “Morning Joe” panel Wednesday that with Alabama’s enactment of the most restrictive anti-abortion bill in the country, there’s a good chance it could eventually lead to Roe v. Wade being overturned by the Supreme Court.
“This is about the Supreme Court Justice [Brett Kavanaugh]. You’ve heard it from activists inside the state of Alabama. One saying, quote, ‘Why not go all the way?’ This was not possible until this moment. We feel like we’ve got a chance. If this makes it to the Supreme Court, to overturn Roe v. Wade,” host Willie Geist said.
“There is a very good chance if this makes it to the Supreme Court that Roe v. Wade would be overturned because we’ve known since the ‘70s that Roe v. Wade stands on a weak foundational basis,” Cevallos said. “Whether you’re pro-life or pro-choice, Roe v. Wade is really about, do we have an individual, fundamental — do women have a privacy right in the Constitution that overrides state legislatures’ abilities to make laws affecting abortion.
“It is interesting to note, the year 1900, almost every state prohibited abortion. By the time Roe v. Wade was decided, it was down to 30 states. The trend was that abortion … prohibiting abortion was going away. But now, by giving it to the Supreme Court, it creates a precedent that can be overturned, and the bottom line is that even if you are pro-choice, the right to privacy does not exist, either in the history or the text of the Constitution, which is why Roe has always been ripe to be overturned,” he said.
Host Joe Scarborough asked Cevallos if it was possible the Supreme Court would refuse to hear the sure-to-be-challenged Alabama anti-abortion law, as they have with some gun statutes in order for the lower courts to decide.
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“That is possible. You may see the Supreme Court say, ‘We don’t want to deal with this.’ The lower court decided it. … As it stands now, this law is facially inconsistent with constitutional case law. So it’s very likely a district court — a lower court — is going to say, ‘This doesn’t fly. Here’s an injunction. We’re stopping this now.’ And it’s possible the Supreme Court may decline to hear it,” Cevallos said.
But Cevallos concluded that if the bill does get taken up to the Supreme Court, then Roe v. Wade is in jeopardy of being overturned.
Since Roe v. Wade was decided in 1973, there have been a number of cases regarding abortion that have reached the Supreme Court, such as Gonzales v. Carhart that resulted in the Partial-Birth Abortion Ban Act being upheld. With the few cases being viewed by the highest court, they have all been decided within the framework of Roe v. Wade.
The bill that was passed Tuesday night in Alabama and is awaiting GOP Gov. Kay Ivey’s expected signature would jail doctors for performing abortions anywhere from 10 up to 99 years and does not include exemptions for cases of rape or incest.
