Alabama Abortion Law: Will It Stand?

Alabama's abortion laws have evolved from strict regulations in the late 19th and early 20th centuries to a period of liberalization following the landmark 1973 Supreme Court decision in Roe v. Wade, which legalized abortion nationwide. However, Alabama has consistently enacted legislation aimed at restricting access to abortion. On June 24, 2022, Alabama began enforcing its total abortion ban, which prohibits abortion at all stages of pregnancy. Alabama's abortion ban differs from those in other states, with the state passing restrictive abortion laws as early as 2019. With the U.S. Supreme Court's decision to overturn Roe v. Wade in 2022, the state of Alabama continued to pass abortion restrictions, and the future of abortion as legal in Alabama is uncertain.

Alabama's abortion ban

Alabama has a long history of abortion bans. Between 1892 and 1935, there were 40 prosecutions and five convictions of women having abortions. By the end of the 1800s, Alabama was the only state in the US without therapeutic exceptions in its legislative bans on abortions. In 2014, a survey by the Pew Research Center found that 58% of surveyed adults in the state believed abortion should be illegal in most or all cases, while 37% indicated it should be legal.

In May 2019, Alabama passed the Human Life Protection Act, one of the nation's most restrictive abortion laws. This law banned most abortions at any stage of pregnancy, with no exceptions for cases of rape or incest, only allowing abortions if there was a serious health risk to the mother. The law was granted an injunction until June 2022 when the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, allowing the Act to go into effect.

The remaining three abortion clinics in the state were ordered to cease operating. Alabama's abortion ban only allows limited exceptions in cases that pose "serious health risks" to pregnant individuals, although this vague language leaves abortion providers with little guidance on how to interpret the law. The ban also includes mandatory waiting periods, parental consent for minors, and stringent guidelines for abortion clinics that advocates argue limit the availability of abortion services in the state.

In March 2023, Senate Bill 35 sought to add an exception for rape and incest to Alabama's abortion ban. However, abortion ban exceptions are not workable solutions as they require individuals to plead their case to a judge, lawyers, and hospital administrators. In addition, Senate Bill 34 seeks to repeal Alabama's abortion ban entirely, with supporters arguing that the ban is an extreme example of government overreach that strips individuals of their right to choose and criminalizes abortion providers.

Roe v. Wade

The case was heard by a three-judge panel, consisting of district court judges Sarah T. Hughes and William McLaughlin Taylor Jr., and appellate judge Irving Loeb Goldberg of the U.S. Court of Appeals for the Fifth Circuit. The panel unanimously ruled in favour of McCorvey, declaring the Texas law, which prohibited abortions except when necessary to save the life of the mother, unconstitutional. The court found that the law violated the right to privacy found in the Ninth Amendment.

The case then reached the Supreme Court in 1970 when both sides appealed. In its 1973 decision, the Supreme Court recognised that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. The Court's ruling in Roe v. Wade was consistent with earlier rulings that recognised a right to privacy in intimate and personal decisions, including those affecting child-rearing, marriage, procreation, and the use of contraception.

In June 2022, the Supreme Court overturned Roe v. Wade in the case Dobbs v. Jackson Women's Health Organization, abandoning nearly 50 years of precedent and marking the first time the Supreme Court had taken away a fundamental right. Following this decision, Alabama began enforcing its total abortion ban, prohibiting abortion at all stages of pregnancy.

Gestational age

Alabama's abortion laws have changed over the years, with the state enacting a total abortion ban in 2022. However, the focus here is on gestational age and its role in Alabama's abortion laws.

The determination of gestational age can be complex and is not always precise. Pregnancy dating is an estimate, and only about 5% of births occur on the estimated due date. This lack of precision can create challenges for providers, who must make judgment calls about gestational age and legal liability. As a result, the autonomy and health of those seeking an abortion may be compromised even earlier in pregnancy than intended under the ban.

Alabama's abortion laws have been subject to legal challenges and court rulings. The state's definition of a fetus includes the statement, "a fetus in utero at any stage of development," which has been criticized as scientifically unfounded. The courts have also weighed in on the issue of state interference with individuals' right to travel for abortion care, stating that a state cannot prohibit people from travelling to access abortion services where it is legal.

The state's abortion laws have had a significant impact on access to abortion care in Alabama. Abortion providers have stopped performing elective abortions, and there are penalties in place for physicians and healthcare workers who perform illegal abortions. The laws have also led to organizations providing assistance and support to Alabama residents seeking abortion services out of state.

Fetal viability

Alabama's abortion laws have been a topic of discussion and controversy, with the state enforcing a total abortion ban in 2022. This ban prohibits abortion at all stages of pregnancy, with some exceptions. The discussion around fetal viability is crucial in understanding the legal landscape of abortion in Alabama.

In the past, when Roe v. Wade was passed in 1973, fetal viability was typically considered to occur around 28 weeks. However, with advancements in technology and medicine, the point of viability has shifted earlier, with most experts agreeing that it now falls somewhere between 23 and 24 weeks. This shift has significant implications for abortion laws, as it challenges the viability standard established in Roe v. Wade.

In Alabama, the law prohibits abortion after 20 weeks of post-fertilization, with certain exceptions. The Alabama Code § 26-23B-5 states that if an unborn child has reached or exceeded 20 weeks, the physician must use their best medical judgment to terminate the pregnancy in a way that provides the best opportunity for the unborn child to survive. However, this is only applicable if the chosen method does not pose a greater risk to the life or health of the pregnant woman than another available method.

The legal definition of "viable fetus" in Alabama is defined as an unborn human offspring that has reached a stage of development where there is a reasonable probability of sustained survival outside the uterus, with or without artificial support. This determination is made by the attending physician based on the specific facts of each case.

Public funding

Alabama law prohibits public funding for abortions. The state also bans private insurance coverage for abortions. Alabama's abortion restrictions are among the strictest in the country, with the state enforcing a total abortion ban that prohibits abortion at all stages of pregnancy. This ban came into effect on June 24, 2022, following the U.S. Supreme Court's decision to overturn Roe v. Wade.

The Yellowhammer Fund, a 501(c)3 abortion advocacy and reproductive justice organization serving Alabama, Mississippi, and the Deep South, has been involved in a lawsuit to fund abortions. Judge Myron Thompson has indicated that a decision on this matter will be made soon. The Yellowhammer Fund provides free emergency contraceptives to Alabama residents and is committed to ensuring that individuals have the resources and autonomy to make healthy choices regarding their bodies.

On the other hand, opponents of public funding for abortion often cite moral and religious objections, believing that taxpayer money should not be used to support a procedure that they consider to be unethical or equivalent to murder. They argue that individuals should be responsible for their own reproductive choices and that public funds could be better allocated to other areas such as education or healthcare for children.

The debate surrounding public funding for abortion in Alabama is complex and deeply rooted in ideological differences. While some advocate for increased access to abortion services and the removal of financial barriers, others strongly oppose the use of public funds for this purpose, reflecting the broader cultural and political divide on abortion rights in the United States.

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