Alabama Abortion Law: Blocked, But For How Long?

Alabama's abortion laws are among the most restrictive in the US. The state's abortion ban, which prohibits the procedure at all stages of pregnancy, has been enforced since June 24, 2022, following the US Supreme Court's decision to overturn Roe v. Wade. While the law was blocked by a federal court in October 2019, it was allowed to take effect after the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization. The law includes criminal penalties for abortion providers, with no exceptions for cases of rape or incest. The ongoing legal dispute in Alabama has sparked lawsuits from abortion rights advocates and providers, who are seeking to block the state from prosecuting those who help patients travel outside the state to access abortion services.

The Alabama Human Life Protection Act

The Act was drafted by the Alabama Pro-Life Coalition and introduced into the Lower House on April 2, 2019. It passed the Lower House on April 30, the Senate on May 14, and was signed into law by then-Governor Kay Ivey on May 16, 2019.

The Act was initially blocked by a federal court in October 2019, with US District Judge Myron Thompson granting a preliminary injunction until the court could resolve the case in full. Judge Thompson declared that the Act defied previous rulings in Roe v. Wade and the US Constitution. The injunction was lifted on June 24, 2022, when the Supreme Court overturned Roe v. Wade, allowing the Act to go into effect.

The Act has had significant implications for abortion access and reproductive rights in Alabama. As of 2022, abortion is illegal in the state except when the life of the pregnant individual is in danger. This has resulted in the remaining abortion clinics in the state being ordered to cease operations. The Act also has potential legal implications for physicians and other healthcare workers, who may face felony charges and years in prison if found in violation of the law.

The US Justice Department's stance

The US Justice Department has stated that Alabama cannot use conspiracy laws to prosecute people and groups who help women leave the state to obtain abortions. The Justice Department filed a statement in consolidated lawsuits against Alabama Attorney General Steve Marshall, arguing that such prosecutions would be unconstitutional.

The lawsuits, filed by an abortion fund and former providers, seek a court ruling clarifying that the state cannot use conspiracy statutes to prosecute people who help Alabama women travel elsewhere to obtain an abortion. Marshall has not prosecuted anyone for providing such assistance, but he has made statements saying that his office would "look at" groups that provide abortion help.

The Justice Department argued in the filing that the US Constitution protects the right to travel. The department said that just as Marshall cannot stop women from crossing state lines to obtain a legal abortion, "neither can he seek to achieve the same result by threatening to prosecute anyone who assists that individual in their travel."

Attorney General Merrick B. Garland said:

> 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 asked a federal judge to consider its view as he decides the issue.

Alabama's total abortion ban

Alabama's abortion laws have a long history of strict regulation. In 2019, the state passed one of the nation's most restrictive abortion laws, the Human Life Protection Act, which sought to ban most abortions, including in cases of rape or incest, unless there was a serious health risk to the mother. This law was blocked by the federal court in 2019 and an injunction was granted until June 2022, when the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, allowing Alabama's near-total abortion ban to take effect.

Alabama's abortion ban prohibits abortion at all stages of pregnancy and does not include exceptions for rape, incest, or human trafficking. The state's definition of abortion does not include terminating a pregnancy in the case of an ectopic pregnancy or a lethal fetal anomaly. The law imposes felony charges and years of prison time for physicians and other healthcare workers found in violation, but does not criminally charge women who obtain abortions.

In addition to its abortion ban, Alabama has retained other restrictive abortion laws, including gestational bans at 20 weeks post-fertilization and at viability, as well as mandatory waiting periods, biased counseling, ultrasounds, and parental consent requirements for minors. The state also prohibits public funding and private insurance coverage of abortions.

The enforcement of Alabama's total abortion ban has been challenged by abortion rights advocates and providers, who are suing Alabama Attorney General Steve Marshall to block him from prosecuting people who help patients travel out of state to obtain abortions. The U.S. Department of Justice has supported this position, stating that Alabama cannot use conspiracy laws to prosecute those who assist women in leaving the state for abortions, as it would violate the constitutional right to travel.

The state's IVF ruling

On February 16, 2024, the Alabama Supreme Court ruled that frozen embryos used for in vitro fertilisation (IVF) should be considered children. This ruling was in response to a lawsuit filed by three couples who had undergone IVF treatment and had additional embryos frozen and preserved by the fertility clinic. In December 2020, a patient entered the cryo-preservation unit and accidentally destroyed some of the frozen embryos. The couples sued the clinic and hospital for the Wrongful Death of a Minor Act, an Alabama statute.

The trial court dismissed the case, stating that embryos that exist in vitro are not considered people or children under the Wrongful Death of a Minor Act. However, the Alabama Supreme Court disagreed and held that frozen embryos that are extra-uterine constitute children under the wrongful death statute. This decision caused several IVF providers in Alabama to suspend their services due to concerns about civil and criminal liability.

In response to the ruling, the state legislature passed a temporary law to provide legal protections for those engaged in IVF treatments. The law, signed by Governor Kay Ivey in March, states that no action, suit, or criminal prosecution can be brought against any individual or entity providing or receiving services related to IVF.

The U.S. Supreme Court declined to review the Alabama ruling, leaving it in place. Associate Justice Jay Mitchell authored the majority opinion, stating that the Wrongful Death of a Minor Act "applies to all children, born and unborn, without limitation". However, Associate Justice William B. Sellers partially dissented, arguing that equating a frozen embryo with an unborn baby was "clearly contrary to the intent of the legislature".

The Alabama Supreme Court's ruling on IVF has raised questions about the status of frozen embryos and the implications for pre-implantation genetic testing. It has also sparked a national debate about the impact of such a ruling on the controversial practice of IVF, with both Democrats and Republicans expressing concerns.

The Supreme Court's Roe v. Wade decision

The Supreme Court's decision in Roe v. Wade was among the most controversial in US history. The ruling struck down many abortion laws and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

The decision also shaped the debate concerning which methods the Supreme Court should use in constitutional adjudication. The ruling held that the right to privacy was implied in the 14th Amendment and protected abortion as a fundamental right. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. After fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health.

The Roe v. Wade decision meant that, for the following 49 years, states, healthcare providers, and citizens fought over what limits the government could place on abortion access, particularly during the second and third trimesters. But abortion was fundamentally legal in all 50 states during that period.

In 2022, the Supreme Court overruled Roe v. Wade in the Dobbs v. Jackson Women's Health Organization case, ending the constitutional right to abortion. The Supreme Court held that the right to privacy is not specifically guaranteed anywhere in the Constitution and that the right to abortion is not "deeply rooted in the Nation's history and tradition".

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