Alabama Governor Kay Ivey recently signed legislation regulating abortion in her state. However, the question is whether she did it asserting Alabama’s 10th amendment right to do so; or if she is bluffing; signing legislation she really does not want; in order to provoke the United States Supreme Court (scotus).
The answer will be clear in the governors’ answer to the first challenge to the law. In the first place the law has just been signed so that no one could possible have been harmed by it. Hypothetical or theoretical harm is insufficient to establish a basis to sue the state. Therefore there is no law upon which to base a decision or prescribe a constitutional remedy. Nothing in the US Constitution empowers any court to invalidate any law as a remedy in any case for any reason.
If Governor Ivey is serious she will first assert that Alabama has every right to decide which medical procedures doctors may perform within its borders; that there is no constitutional provision for previous court decisions; also referred to as “precedence”, “case law” or “settled law”; to constitute law or amend the Constitution; and that notwithstanding any scotus decision, federal court judges are still bound to adjudicate in accordance with the laws of the state over which they have jurisdiction.
If she asserts Alabama’s 10th amendment rights, and other states do the same, the country can begin to rebuild the wall intended to separate the judicial powers from the executive and legislative powers; a prospect that has Stephen Breyer running scared.