What really happened in the blocking of Alabama’s abortion law?

By Sarah Quale — U.S. District Judge Myron Thompson’s decision to block Alabama’s abortion law was the last in a series of court injunctions that stopped all state-level first-trimester abortion restrictions passed in the last year. These injunctions were expected as part of a larger pro-life strategy to put an end to Roe. But if that is the goal, why did the Alabama attorney general argue in support of the central holdings of Roe?


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If the ultimate strategy of “heartbeat” laws and other near-total bans on abortion is to overturn Roe v. Wade, it makes sense that two components be present:

1. The law brought before the Supreme Court must be a direct challenge to Roe‘s denial of a pre-born child’s personhood.
2. The arguments made along the way must be a direct challenge to Roe’s denial of personhood.

Putting aside very real concerns as to whether any of these state laws present a formidable challenge to Roe (they all have exceptions, problematic loopholes, and/or language that solidifies the “right to abortion” in some cases), we should consider the arguments that pro-life attorneys are making in Ohio, Missouri, Kentucky, Mississippi, Georgia, Louisiana, and Alabama as these enjoined laws potentially make their way to the Supreme Court.

The pro-life arguments….FOR Roe

Let’s use Robinson et al v. Marshall as an example. This is the case brought to the U.S. District Court for the Middle District of Alabama by several abortion facilities to try to block Alabama’s Human Life Protection Act. The case succeeded on Tuesday, October 29th, when Judge Myron Thompson granted the facilities the preliminary injunction they requested. In arguing the case, the abortion clinics claimed that they should be granted the injunction for two primary reasons:

1. They are likely to succeed if the case is brought to the Supreme Court because the district court of Alabama cannot overrule the Supreme Court’s holdings in Roe and Casey.
2. Their clients would suffer irreparable harm if they were not allowed to kill their children, as opposed to the State, which would not suffer any harm at all if the law were prevented from taking effect.

These claims gave Alabama Attorney General Steve Marshall two critical opportunities to defend the lives of pre-born children, as part of the pro-life movement’s larger strategy to use these laws to challenge Roe. But according to Bill Fortenberry, president of Personhood Alabama, “He squandered both of them.”
Fortenberry explains:

“In response to the first claim, Marshall actually stated that the abortion clinics were correct, and then he argued that the Constitution says nothing about abortion. He essentially argued that the prenatal child is not a person within the meanings of the 5th and 14th Amendments and thus, cannot claim the rights of life, due process, and equal protection, which those Amendments guarantee to every person within the United States. “

Marshall’s argument supported the very foundation for the “right to abortion,” which claims that pre-born children aren’t protected by the 5th and 14th amendments. In other words, Marshall—a self-professed, widely known “pro-life” attorney—argued that these children don’t have a right to life guaranteed by the Constitution.
Marshall also agreed with the second claim made by the abortion clinics, which was that their clients would suffer irreparable harm if they couldn’t obtain abortions—far more harm than anyone else would suffer if the law was allowed to stand. But, instead of simply asserting that blocking the law would cause pre-born children to suffer the irreparable harm of being killed, Marshall argued that “the balance of the equities also supports a preliminary injunction.”

Fortenberry notes:

“This was the perfect opportunity for Marshall to bring up the fact that abortion is defined as murder under Alabama law and that the children murdered by these clinics would suffer far more harm if the court agreed with the clinics. But Marshall said that the clinics were right.  He agreed with them that their clients would suffer more harm by being prevented from murdering their children than their children would suffer by being murdered.”

The unraveling of logic

Marshall advised Judge Thompson to grant the preliminary injunction, but not for the entire law. Marshall asked the judge to continue to allow abortions on pre-born children who can’t survive outside of the womb. Alexa Kolbi-Molina, an attorney for the ACLU, argued that the abortion law can’t be severed to separate pre-viable abortions from post-viable ones and noted that Marshall “did not raise any argument that would enable the court to uphold the ban.”
In other words, Marshall conceded to the central holdings of Roe v. Wade—that the child in the womb is not a person, and a state has no right to restrict abortion before viability.
In defending his arguments, Marshall said: “As we have stated before, the state’s objective is to advance our case to the U.S. Supreme Court.”
Pro-life Americans everywhere should pause at this revelation.

What this means for us

We’re told all the time that we must pass “whatever we can” to chip away at legalized abortion. This means we must accept and support laws that are full of loopholes that actually further secure the “right to abortion”; laws riddled with exceptions for politically unpopular groups of people like the rape-conceived, the disabled, and those who are deemed “incompatible with life.” We’re told we must work to end abortion, while at the same time, unquestionably accept Roe as the tyrannical “law of the land.”
We can’t do both.
Only when we place Marshall’s head-scratching arguments in this context do they start to make sense. He, like so many others, are stuck in the dangerous, self-defeating strategy that has plagued the political arm of the pro-life movement for almost 50 years.
Personhood Alliance president Gualberto Garcia Jones and I talked about this condundrum on our recent podcast:

As pro-lifers on the ground, working on the frontlines of this battle, we must ask ourselves two questions:

1. Is this what it looks like to protect every human being equally under the law, which we all claim is our mission?
2. Is this really the strategy that will finally put an end to Roe?

On behalf of the thousands of children brutally killed every day in America, we must start to stand up and say: It is not.

Sarah Quale is president of Personhood Alliance Education, the educational arm of the Personhood Alliance, and the author of the Foundations online pro-life curriculum. She is a member of the International Christian Visual Media Association and Christian Women in Media and is the founder of Educe® online learning.