Abortion rights advocates fear pre-Roe law could be used to prosecute Alabama women

Alabama’s near-total ban on abortion is not supposed to punish women who undergo the procedure. But a decades-old law could complicate treatment for miscarriages and ectopic pregnancies.

Rep. Chris England, D-Tuscaloosa, has pre-filed a bill for next month’s legislative session that would repeal the pre-Roe v. Wade statute, which made it a crime for anyone to induce an abortion or a miscarriage except to save a woman’s life.

“It repeals the old abortion law in Alabama that made it a misdemeanor for anyone involved in terminating a pregnancy, which also included women,” England said.

The law, last amended in 1951, makes it unlawful for anyone to administer a drug or conduct a procedure “to induce an abortion, miscarriage or premature delivery,” or to assist in such procedures. It levies a fine of up to $1,000 and a sentence of up to 12 months in prison.

The law remains on the books and could be used to prosecute anyone attempting an abortion, including a pregnant woman. 

Since Alabama’s near-total ban on abortions went into effect after the Dobbs v. Jackson decision last year, doctors who perform abortions in Alabama can face a Class A felony charge, with punishment of up to 99 years in prison. The law only allows abortions when the life of the mother is threatened and does not include exceptions for rape or incest.  

The 2019 law, known at the time as HB 314, says that “a woman who receives an abortion will not be held criminally culpable or civilly liable for receiving the abortion,” but some abortion rights advocates aren’t so sure.

Robin Marty, operations director of West Alabama Women’s Center in Tuscaloosa, said the 1951 law remains the only avenue in which people who need treatment for complications can still be criminally investigated or charged for seeking healthcare.

She said GOP lawmakers have signaled multiple times that they have no intention to prosecute pregnant people.  But Marty believes the reason to keep the law in the books is “purposeful.”

“They are going to end up going after these people because there are too many places now outside of this state, outside of this country, for people to be able to access medications and independently manage their own abortions with no provider involved,” Marty said. “They don’t want to lose that tool.”

Marty also cited Alabama prosecutors’ use of a 2006 chemical endangerment law to prosecute pregnant women. Last year, an Etowah County woman was held in jail for months after acknowledging that smoked marijuana on the day she learned she was pregnant, according to AL.com. The website said the jail held several other pregnant women for lengthy periods of time.

If something were to happen to the current ban on abortion, England said that he doesn’t want the fallback position to be women facing prosecution.

“In order to make sure that doesn’t happen, we need to repeal it and have it taken off the books,” England said.

In 2019, supporters of HB 314 presented it as a challenge to Roe v. Wade, the 1973 Supreme Court decision that struck down state abortion restrictions in the first trimester of pregnancy.  Some suggested at the time they would revisit the legislation if the Supreme Court struck the decision down.  

Attempts to reach Rep. Terri Collins, R-Decatur, the sponsor of the 2019 act, were unsuccessful on Monday.  Rep. Brett Easterbrook, R-Fruitdale, one of HB 314’s co-sponsors, said Monday he’s open to adding exceptions for rape or incest.

“I’m definitely in favor of going back and putting the exceptions on that,” he said. “But there has to be a point where, even if it’s rape or incest, we can’t wait till eight months to decide we’re gonna kill a baby.”

More miscarriages will happen as a result of less access to reproductive care, Marty said, and that’s who’s going to get caught up in this.

“It’s going to be the people who have miscarriages. Because as long as this bill exists and is still a law on the books, whether it’s been enforced or not, it is still a tool that can be used to potentially investigate somebody’s miscarriage,” she said.