Alabama Abortion Law: Understanding The Strict Legislation

Abortion is illegal in Alabama unless there is a serious health risk to the pregnant woman. The state's abortion ban, called the Human Life Protection Act, came into effect in June 2022 after the US Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization. The law prohibits abortions at all stages of pregnancy and makes it a crime for doctors to perform the procedure unless it is necessary to prevent a serious health risk to the pregnant woman. Alabama's abortion ban is one of the most restrictive in the US and has been the subject of much controversy and legal challenges.

The Human Life Protection Act

The Act was drafted by the Alabama Pro-Life Coalition and introduced into the Lower House in April 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 Human Life Protection Act is unique in that it does not provide exceptions for cases of rape, incest, or human trafficking. It also does not include a procedure to terminate a pregnancy when the unborn child has a lethal anomaly.

The Act's definition of a "serious health risk" is a condition that necessitates the termination of the pregnancy to preserve the life of the pregnant woman or to prevent substantial physical impairment of a major bodily function. This vague language has left abortion providers with little guidance on how to interpret and act upon the law.

The penalties outlined in the Act focus on those who perform illegal abortions. Physicians and other healthcare workers found in violation of the law face felony charges and years in prison. However, the state will not file criminal charges against a pregnant woman who obtains an abortion.

The Act was blocked by federal courts initially but went into effect after the Supreme Court overturned Roe v. Wade in June 2022. This ruling allowed states to regulate and prohibit abortion, and as a result, Alabama's three remaining abortion clinics were ordered to stop performing abortion procedures.

Alabama's definition of a serious health risk

Alabama's abortion laws are among the most restrictive in the United States. The state's abortion ban, the Human Life Protection Act, prohibits abortion at all stages of pregnancy unless there is a serious health risk to the pregnant woman.

Alabama defines a serious health risk as a condition that necessitates the termination of a pregnancy to preserve the life of the pregnant woman or avert a serious risk of substantial physical impairment of a major bodily function. This definition does not include a condition based on a claim that the woman is suffering from an emotional condition or a mental illness that will cause her to engage in conduct that intends to result in her death or the death of her unborn child. However, the condition may exist if a second, licensed psychiatrist examines the woman and documents that she has a diagnosed serious mental illness, and there is a reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child. In such cases, termination may be performed but only by a licensed physician in a hospital where they have admitting privileges.

In addition to its abortion ban, Alabama has other laws that restrict abortion access. These include mandatory waiting periods, parental consent requirements for minors, and stringent guidelines for abortion clinics. The state also prohibits public funding and private insurance coverage of abortion.

Penalties for breaking the law

Alabama's abortion laws have evolved from strict regulations in the 19th and 20th centuries to a period of liberalization following the landmark 1973 Supreme Court decision in Roe v. Wade, which legalized abortion nationwide. However, in 2022, the Supreme Court overturned Roe v. Wade, and Alabama began enforcing its total abortion ban, which prohibits abortion at all stages of pregnancy. The Alabama Human Life Protection Act, also known as the Human Life Protection Act or House Bill 314, was passed in 2019 and bans abortions at every stage of pregnancy, only allowing them if there is a serious health risk to the mother. The law makes performing an abortion a Class A felony, which is punishable by 10 to 99 years, or life, in prison. This is the same classification as first-degree rape.

While Alabama law does not require a more severe penalty for doctors who perform abortions in cases of rape than for the rapists themselves, it is possible for the former to be punished more severely. This is because judges use their discretion when handing down sentences, and sentences are not necessarily served entirely behind bars. Alabama allows for split sentences, where part is served in prison and the remaining portion is served on probation. Additionally, sentencing involves incorporating different factors such as any prior convictions.

Alabama has not repealed other laws relating to abortion, including gestational bans at twenty weeks post-fertilization and at viability, mandatory waiting periods, parental consent requirements for minors, and stringent guidelines for abortion clinics. Providers who violate Alabama's abortion restrictions may face civil and criminal penalties.

Efforts to prevent residents from travelling for abortions

Efforts to prevent Alabama residents from travelling out of state to obtain abortions have been a key feature of the state's abortion laws in recent years. In 2022, Alabama's Attorney General, Steve Marshall, stated that he could prosecute entities who help someone obtain an abortion outside of the state under criminal conspiracy laws. This has been challenged in the courts, with reproductive health providers and advocates suing Marshall to prevent him from prosecuting people who help patients travel outside Alabama to end their pregnancies.

The U.S. Department of Justice has also weighed in on the issue, filing a statement of interest in two consolidated lawsuits seeking to protect the right to interstate travel, including the right to travel to another state to obtain an abortion that is legal in that state. The statement argues that the Constitution protects the right to travel across state lines and engage in conduct that is lawful, and that states cannot prevent third parties from assisting others in exercising that right. The statement further explains that the Alabama Attorney General may not criminalize third-party assistance for interstate travel, particularly when the sole purpose of those prosecutions is to impede individuals' exercise of their constitutional rights.

Despite these legal challenges, Alabama continues to enforce its restrictive abortion laws. As of 2022, abortion in Alabama is illegal except when the life of the pregnant individual is in danger, with no exceptions for rape or incest. This has resulted in residents having to leave the state to receive an abortion, as well as an increase in the use of surveillance tools to track the movements of those seeking abortions.

The Supreme Court's ruling on IVF

On February 16, 2024, the Alabama Supreme Court ruled that frozen embryos used for in vitro fertilization should be considered "extrauterine children". This ruling has had a profound impact on IVF doctors and patients in the state, who are now uncertain about the legal implications of the decision.

The ruling has cast multiple parts of the IVF process into legal jeopardy. Providers may no longer be able to freeze, thaw, transfer, or test embryos using best medical practices. The ruling also raises questions about whether embryos can be destroyed and the implications for pre-implantation genetic testing.

The consequences of the ruling could even threaten the existence of IVF in Alabama, as providers and patients may leave the state to avoid potential liability. Dr Mamie McLean, who provides IVF services in the state, expressed concern about the lack of guidance following the ruling, making it difficult to determine how it will impact their care.

The decision has sparked debates about the status of frozen embryos and whether it effectively outlaws IVF procedures in Alabama. It has also prompted discussions about similar measures in other states and their potential impact on access to IVF treatments.

On October 7, 2024, the United States Supreme Court declined to review the Alabama ruling. This refusal to grant an appeal leaves in place the decision of the Alabama Supreme Court, which concluded that frozen embryos were protected by the Wrongful Death of a Minor Act. Associate Justice Jay Mitchell authored the majority opinion, stating that the Act "applies to all children, born and unborn, without limitation".

The Supreme Court's decision not to intervene has further fueled concerns about the impact on IVF access and the potential for similar rulings or legislation in other states.

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