Alabama Abortion Law: Can Women Be Prosecuted?

Alabama's abortion laws have evolved from strict regulations in the 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, in recent years, Alabama has consistently enacted legislation aimed at restricting access to abortion. In 2019, Alabama passed one of the nation's most restrictive abortion laws, the Human Life Protection Act, which sought to ban abortions at any stage of pregnancy. The law specifically states that women receiving abortions cannot be held criminally liable. However, in 2023, Alabama Attorney General Steve Marshall stated that women who use abortion pills to end pregnancies could be prosecuted under the state's chemical endangerment law. This has sparked a debate within the anti-abortion movement, which has largely sought to treat women seeking abortions as victims rather than targets for punishment. The Justice Department has clarified that Alabama cannot use conspiracy laws to prosecute people who help women leave the state to obtain abortions, asserting that the U.S. Constitution protects the right to travel.

Alabama's abortion pills prosecution

Alabama's abortion laws are among the strictest in the United States. The state bans abortion at any stage of pregnancy, with no exceptions for rape or incest. The only exemption is if the pregnant person's health is seriously threatened.

In the year following the U.S. Supreme Court's decision to overturn Roe v. Wade, Alabama had the highest number of women charged with crimes related to their pregnancies out of any U.S. state. While none of these charges were for violating abortion bans, four of the cases involved abortion-related allegations, including evidence that a woman had abortion pills.

The state's abortion laws have also impacted those seeking fertility treatments. In February 2024, the Alabama Supreme Court ruled that stored embryos are afforded the same legal protection as children. This decision sparked outrage and led to a temporary pause in IVF treatments in the state.

While Alabama's laws do not explicitly mention prosecution for women seeking abortions, the state's attorney general, Steve Marshall, has stated that his office would "look at" groups that provide abortion help. However, the U.S. Department of Justice has asserted that Alabama cannot prosecute people who help women leave the state to obtain abortions, as it would be unconstitutional.

The state's abortion laws have had significant impacts, with reports of women being denied abortions even in cases of fatal fetal anomalies and women being charged with crimes related to their pregnancies. The laws have also led to confusion and concern among healthcare providers, with some clinics pausing IVF treatments due to legal uncertainty.

The Justice Department's stance

Attorney General Merrick B. Garland emphasized that "bedrock constitutional principles dictate that women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal." The Justice Department's position aligns with its dedication to preserving reproductive freedom and ensuring that individuals can cross state lines for legally permissible activities.

The Department's Civil Division has confirmed its commitment to protecting US interests in this regard. The legal dispute in Alabama highlights the tension between states' abortion laws and the constitutional right to travel for abortion services. The Justice Department's stance is a significant step in the battle for reproductive rights, particularly in states like Alabama, where abortion is almost entirely illegal.

The Department's Reproductive Rights Task Force, led by Associate Attorney General Vanita Gupta, has been actively evaluating state and local legislation that may infringe upon women's rights to legal reproductive care. The Task Force has been vigilant in opposing state laws that undermine federally protected reproductive rights, including illegal restrictions on interstate travel for abortion. The Justice Department's stance provides a crucial safeguard for individuals seeking abortion services and those assisting them in states where abortion is restricted.

Pregnancy-related crimes in Alabama

Alabama has a near-total abortion ban that only allows the procedure if a woman's life is threatened by continuing the pregnancy. While the state cannot prosecute people who help women leave the state for abortions, it has been reported that Alabama leads the nation in arresting and criminally punishing women for allegedly posing a danger to their fetuses.

According to a report by the advocacy group Pregnancy Justice, nearly 1,400 people were arrested or faced disparate bail, sentencing, and probation for conduct related to their pregnancies between 2006 and the Supreme Court decision in June 2022, dismantling abortion rights. Alabama had the highest number of arrests, with 649 pregnant women taken into custody during that period—more than the next two states combined.

The report also found that the number of women charged with crimes related to their pregnancies jumped in the year after the Supreme Court ruling, with at least 210 women across the country facing charges. Alabama accounted for the majority of these cases, with 104, followed by Oklahoma with 68, and South Carolina with 10.

Most of the charges brought against these women did not require proof that the fetus was harmed and often involved allegations of substance use during pregnancy. In one case, a woman who delivered a stillborn baby at home was charged with homicide when she went to make funeral arrangements.

The increase in pregnancy-related charges has been attributed to two key factors: the expansion of so-called fetal rights or "personhood" laws, and a more punitive approach to substance use among pregnant women. Alabama voters approved a constitutional amendment in 2018, stating that it was public policy "to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life."

Alabama's abortion ban exceptions

Alabama's abortion ban, The Alabama Human Life Protection Act, took effect in June 2022 following the Dobbs v. Jackson Women's Health Organization decision. The Act bans abortions at every stage of pregnancy and makes it a crime for doctors to perform the procedure except in the case of a medical emergency. The only exemption is if the pregnant person's life is in danger or if there is a serious health risk.

The abortion ban's limited exception for serious health risks leaves abortion providers with little guidance on how to interpret the law. The vague language of the exception means that abortion providers are unsure of when they can legally provide abortions. This has resulted in physicians delaying providing miscarriage management care and denying care to pregnant people who are actively miscarrying if there is still detectable fetal cardiac activity.

Alabama's abortion ban does not include exceptions for cases of rape or incest. However, there is a proposed Senate Bill 35, which seeks to add an exception for rape and incest to the state's abortion ban. Opponents of the bill argue that abortion ban exceptions are not workable solutions as they require survivors of sexual assault or incest to plead their case to a judge, lawyers, and hospital administrators. This can be cruel and unfair to expect of survivors, and people should not need permission to access the care they need.

The US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has had a significant impact on abortion laws in Alabama, allowing the state's restrictive abortion laws to take effect. The decision has also led to a decrease in the number of abortion clinics in the state, with only three remaining as of 2022.

Alabama's abortion history

Alabama's history of abortion laws dates back to the 19th century. In the 1800s, all states except Alabama had therapeutic exceptions in their legislative bans on abortions. The state first made abortion a crime over 150 years ago, and other states followed suit through the middle of that century.

Before this wave of legislation, common law allowed abortion until "quickening", which is when a woman first perceives fetal movement, usually in the middle of a pregnancy. A group of elite physicians working to professionalize medicine initiated a campaign to criminalize the practice of "bringing on the menses". They aimed to eliminate their competition by casting midwives and "irregular" doctors as criminals. These doctors raised questions about who was having babies, who was aborting, and who should populate the nation. They knew that well-to-do white women were having fewer children, and that the families of immigrants, Catholics, and freedpeople were larger. In other words, lawmakers hoped to force middle-class white women to have more babies by removing the option of abortion, thus preventing the country from being "taken over" by "foreigners" and people of color.

The resulting laws punished everyone involved in abortion: providers and assistants, partners who helped pay, and even advertisers. All faced jail and fines. And though some anti-abortion commentators claim women were not punished when abortion was illegal, many statutes explicitly included them, too.

In the 20th century, Alabama's abortion laws 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.

In 2019, Alabama passed one of the nation's most restrictive abortion laws, the Human Life Protection Act, which sought to ban 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 Roe v. Wade was overturned, allowing the Act to go into effect.

In 2024, the Alabama Supreme Court ruled that frozen embryos should be considered children, which led to IVF treatments being ended in the state as couples are now allowed to create a lawsuit for the wrongful death of their embryos.

As of 2024, abortion in Alabama is illegal, and there are no exceptions for rape or incest. The Justice Department has stated that Alabama cannot prosecute people who help women leave the state to obtain abortions, as the US Constitution protects the right to travel.

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