Berkeley law dean: Alabama abortion ban ‘clearly unconstitutional’

  • Alabama recently passed a law banning abortion in all cases except when the would-be mother’s health is seriously jeopardized.
  • UC Berkeley law dean Erwin Chemerinsky called the law "clearly unconstitutional."
  • Chemerinsky has previously suggested that President Donald Trump's free speech executive order is unconstitutional, as well.

A law dean at the University of California, Berkeley deemed the new Alabama abortion law “clearly unconstitutional” in a recent article published and promoted by the university.

UC Berkeley law dean and professor Erwin Chemerinsky, whom the school touts as an “expert in constitutional law, criminal procedure and federal jurisdiction,” made bold assertions about the new law, which makes performing an abortion a felony in all cases except when the would-be mother’s health is seriously jeopardized. He said it could be indicative of a larger threat to Roe v. Wade, which the school describes as “the landmark decision that protects a woman’s liberty to choose whether to have an abortion.”

"Whatever federal district court, whatever [U.S.] Court of Appeals, hears it would have to declare it unconstitutional"   

“Overturning Roe has been a key part of the conservative movement since 1973,” Chemerinsky said in the Berkeley news release. “You now have five justices who grew up as part of this movement. They are not going to resist the chance to do that.”

The law dean added that he doesn’t believe “precedent or public opinion will matter in the least” to the five conservative Supreme Court Justices, whom he fears would reverse the ruling if given the chance.

[RELATED: EXCLUSIVE: Utah rep. Pulverizes prof who called abortion limit ‘barbaric’]

He went on to state that the “the Alabama law is clearly unconstitutional.”

"Whatever federal district court, whatever [U.S.] Court of Appeals, hears it would have to declare it unconstitutional,” Chemerinsky insisted. “Now, that doesn’t mean that the court will have to take the case. It could be that the lower courts declare it unconstitutional, and the [Supreme Court] decides not to take this [Alabama] case.”

The UC Berkeley dean and professor suggested that he believes anti-abortion laws are discriminatory in that they have a “disproportionate effect on poor women and teenagers,” but also claimed that “unfortunately, that’s not an argument that the [Supreme Court] is going to accept.”

This is not the first time Chemerinsky has made headlines for calling things unconstitutional.

Just months ago, he deemed President Donald Trump’s executive order defending the First Amendment on college campuses “almost certainly unconstitutional,” claiming that it would be “extremely difficult” for campuses to obey.

[RELATED: Berkeley law school dean: Trump’s free speech executive order is ‘unconstitutional’]

In a statement to Campus Reform, university spokesman Dan Mogulof noted that while Chemerinsky “enjoys full freedom of speech and expression,” he does “not speak for or represent the perspectives of the University which does not, as a public institution, take positions or offer comment on issues of this sort,” adding however that Chemerinsky is “one of the nation’s leading constitutional scholars.”

Chemerinsky elaborated to Campus Reform why he believes the Alabama law is unconstitutional.

“The Supreme Court has repeatedly held that women have a right to abortion prior to viability,” he said. “The Alabama law prohibits all abortions. It is clearly unconstitutional.”

When asked if he then believed the Supreme Court to be infallible with regard to interpreting the Constitution, especially in light of the feared potential reversal of Roe v. Wade, Chemerinksy responded by saying that “the Supreme Court determines the meaning of the Constitution.”

“Its decisions are the law until and unless they are overturned by a Constitutional amendment or another Supreme Court decision,” the dean told Campus Reform, claiming that the concept of the Court determining the meaning of the Constitution was “not in dispute.”

[RELATED: Emory University hosts ‘abortion as a moral good’ lecture]

“No one says is [sic] the Court is infallible. But it does determine the meaning of the Constitution,” he asserted.

“Women have a constitutional right to abortion until the fetus is viable,” Chemerinksy told Campus Reform. “State laws that prohibit abortion before viability are unconstitutional. The Alabama law prohibits abortions before viability and therefore is clearly unconstitutional.” 

Follow the author of this article on Twitter: @celinedryan



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Celine Ryan
Celine Ryan | Correspondent Editor

Celine Ryan is the Correspondent Editor reporting on liberal bias and abuse on campus for Campus Reform. Celine was previously the investigative reporter, New Hampshire Senior Campus Correspondent, and California Senior Campus Correspondent for Campus Reform.

20 Articles by Celine Ryan