Alabama just legislated the criminalization of all abortions, including those begat by incest and rape, during any term of the pregnancy except where the life of the mother is at stake. A similar bill is in the works in Ohio.
What is going here is that the opponents to abortion rights are seeking to overturn the 1973 U.S. Supreme Court decision Roe v. Wade. Roe ruled that a woman's reproductive rights bore certain levels of federal constitutional protection during certain time frames of a pregnancy.
In effect, the opponents will use these state laws as a tool to seek reversal of the stare decisis of Roe.
Seek reversal of the what?
Stare decisis is Latin for 'to stand by that which is decided." A fundamental doctrine of American jurisprudence, it means that once a court has ruled on a principal of law applicable to certain facts, that ruling is binding on that court and courts of lower rank in subsequent cases where that point of law and similar facts are at issue.
Trial judges in state and federal courts are required under stare decisis to follow the interpretations of law made by the appellate courts that rule over them (appellate courts are where the loser in the trial court can appeal to try to reverse the loss).
The appellate courts themselves must follow the rulings of laws laid down under similar facts from their higher courts. For state appellate courts, that's their state supreme court. For Federal appellate courts, it's the U.S. Supreme Court. The U.S. Supreme Court's rulings on federal constitutional matters and interpretations of federal law are binding on all courts everywhere.
Per the language in the U.S. Constitution, federal law is supreme over a conflicting state law. However, federal courts are bound by interpretation of an unconflicted state law made by that state's Supreme Court.
The policy of following precedential rulings is grounded in the notion that certainty in the law is promoted by the acceptance of established legal principles previously ruled upon. Certainty in the law is a salutary one, and precedential rulings are not ordinarily or lightly departed from. Otherwise complete legal chaos is promoted.
Like the movement of Earth's tectonic plates, the weight given a precedential ruling may shift over time by the shifting of social mores and/or political interests and powers. The highest court that made that original ruling of law may change that interpretation in some subsequent case if it wants.
A shift regarding federal constitutional rights of reproduction has been happening in recent years in the U.S. Supreme Court.
Anti-Roeites think they have a one-jurist conservative majority on the nine-person U.S. Supreme Court making circumstances ripe. Creating a currently unconstitutional law could work its way through the courts to the Supremes so as to afford the opportunity to overturn the 46-year precedent.
A red tide is trying to stare down stare decisis.
But beware. Roe itself had precedent in a U.S. Supreme Court ruling eight years earlier in Griswold v. Connecticut which found that Connecticut's ban of contraceptives violated federal constitutionally protected rights of reproduction. If Roe is gone, the Connecticut prophylactic police theoretically could again start rooting through citizens' dresser drawers.
I'm keeping mine locked with nylon cable ties.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.