Lila Bonow, Alana Edmondson and Aiyana Knauer prepare to take abortion pill while demonstrating in front of the U.S. Supreme Court as the justices hear hear arguments in Dobbs v. Jackson Women’s Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 01, 2021 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
In the waning days of the 2023 legislative session, Democratic efforts to ease Alabama’s near-total ban on abortion remain stalled.
And Republicans appear to be pushing even tougher bills, including one that would make a woman who had an abortion subject to a murder charge.
“There were all kinds of barriers in the way already, and it’s just gotten progressively worse,” said Austin Roark, director of policy for United for Reproductive and Gender Equity (URGE), a reproductive rights advocacy group. “The State House’s role in a lot of this has been to create and push sort of propaganda against abortion and really to stigmatize abortion and make it feel like this really taboo, scary thing.”
The situation reflects what is for now an unchanged status quo in Alabama, despite Republicans badly underperforming nationally in the 2022 elections thanks to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which ended federal protections of abortion rights, and polling suggesting Alabamians disagree with the decision.
A majority of Alabamians, about 55%, support abortion rights in most or all cases, according to a February 2023 report from Public Religion Research Institute (PRRI), an organization focused on religion, culture and public policy research.
In comparison, about 15% Alabamians agree that abortion should be illegal in all cases. Only 37% of those polled said they supported the Dobbs decision.
Democrats early in the session filed legislation challenging the state’s near-total ban on abortion, which went into effect after the Dobbs decision.
HB 17, sponsored by Rep. Chris England, D-Tuscaloosa, would repeal a pre-Roe v. Wade statute that made it a crime for anyone to induce an abortion or a miscarriage except to save a woman’s life.
England on Thursday said legislators have indicated that they don’t want to prosecute women, and that his bill supports that position. The representative has requested a committee hearing on the bill. A hearing had not been scheduled as of early Monday afternoon.
The 2019 ban makes it a crime, punishable by up to 99 years in prison, for a doctor in Alabama to perform an abortion. The law prohibits the prosecution of women who have abortions.
But the pre-Roe 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 jail. Abortion rights activists say the broad language of the statute could allow prosecutors to bring charges against women who have abortions.
Roark said that while the goal is to have abortion decriminalized and accessible in Alabama, removing a law that could potentially investigate and even prosecute a woman is a start, even if a “very small, admitted, step in that direction.”
“The fact that we live in a state that is already stigmatizing and is so harsh toward abortion, and the fact that that law is available to be able to press charges – we think it’s just adding more barriers, adding more stigma,” Roark said.
England said the bill would show the priorities of anti-abortion members of the House.
“Taking that law off the books would ensure that we didn’t have a vehicle in our law at all that would prosecute a woman for terminating a pregnancy,” England said. “It’ll be an interesting conversation to see – was Alabama really serious about not prosecuting women?”
One Republican legislator would like to raise that question.
HB 454, sponsored by Rep. Ernie Yarbrough, R-Trinity, would repeal the provision in the 2019 law that pregnant people may not be prosecuted for receiving an abortion or attempting one. The legislation provides an exception to criminal charges only when the life of a pregnant person is at risk.
The legislation would also expand the definition of person to include an unborn child from the moment of fertilization.
Multiple attempts to interview Yarbrough were unsuccessful.
URGE also opposes the bill, but Roark, who uses they pronouns, said the pre-Roe law would accomplish the same thing.
“This is not something new”, they said. “Criminalization against pregnant people for pregnancy outcomes has happened throughout history, and as we’ve seen, it’s happened in other states with or without a homicide law on the books, such as this one.”
The post-Dobbs world
Since the Supreme Court overturned Roe v. Wade in June 2022 and gave states the power to regulate abortion access, 14 states have passed laws banning abortions almost entirely or completely. Others have proposed similar legislation held up in state and federal courts.
But there have been attempts to find pregnant people seeking abortions guilty under other laws in recent months.
It’ll be an interesting conversation to see – was Alabama really serious about not prosecuting women?
– Rep. Chris England, D-Tuscaloosa
Some attorneys general, such as those in Alabama and Idaho, have even claimed that their states’ existing laws against chemical endangerment and abortion prohibit the distribution or use of abortion-inducing drugs, although there has been pushback against such interpretations. Alabama’s attorney general has since backtracked on his previous assertion that women in his state could be prosecuted for taking medication to induce an abortion.
These restrictions make it difficult for women in Alabama to access abortion services, and many women may be unable to obtain the care they need, said abortion advocates.
As a result, pregnant individuals must travel long distances, often at great expense, to access reproductive healthcare, creating a patchwork of abortion access across the country.
Republicans are pushing other anti-abortion bills. HB 208, sponsored by Rep. Jamie Kiel, R-Russellville, would provide state income tax credit for donations to anti-abortion centers.
Anti-abortion centers, also known as crisis pregnancy centers or pregnancy resource centers, are organizations that aim to discourage women from having abortions. These centers are typically operated by religious or conservative organizations and often offer pregnancy testing, ultrasounds, and counseling services to women who are considering abortion.
Anti-abortion centers often advertise themselves as providing comprehensive reproductive health services, but they frequently use misleading tactics to discourage women from obtaining abortions. Staff at some of these centers go as far as wearing white coats, said both Roark and Miller in separate interviews.
According to three databases – #ExposeFakeClinics; ReproAction and Crisis Pregnancy Center Map – Alabama has at least 50 anti-abortion centers. Most of them are concentrated in urban areas, such as Birmingham, Huntsville and Montgomery.
Kiel said in an interview earlier this month that it’s “very clear” the anti-abortion center in his district is for resources. The representative said he has not seen the local center “advertised as anti-abortion,” though he acknowledged it might happen.
“Are they going to try to dissuade an abortion?” he asked. “Sure. It’s illegal in Alabama to get an abortion, so sure they’re going to try to talk you out of it.”
Because the state may see more babies and mothers because of the Dobbs decision, he said, there might be more need for resources for people who need prenatal care.
“That type of counseling before the baby comes and instruction on how to be a good parent,” he said.
He said that while legislators are trying to be conservative with the budget surplus, he believes there is a direct correlation with healthy babies and their improved educational experience. He said that if they provide that support from the beginning, they won’t have to catch-up later on.
“I think it’s important to support those who are at their most vulnerable position, and a lot of times a woman that’s in need is in a very vulnerable position,” Kiel said.
Sen. Vivian Davis Figures, D-Mobile, has filed two pieces of legislation to peel back the 2019 law, which bans abortions in almost all cases not involving medical emergencies. It is likely to face difficulties in the Republican-controlled Senate.
SB 34, co-sponsored by nearly every member of the Senate Democratic Caucus, would repeal the 2019 law entirely.
SB 35 would allow abortions in cases of rape or incest.
Neither bill is likely to move in the Republican-controlled Senate. But abortion advocates said that exceptions, such as rape or incest, don’t work.
Messages seeking comment were left with Figures.
Alabama’s ban includes an exception to save the life of a mother, but even that exception isn’t enough. A Los Angeles Times report described a Montgomery woman who was denied an abortion for her nonviable pregnancy who was told by her doctor to go home and wait. In the days that followed, Alison, who was given anonymity by the Times, could not get out of bed from cramps as she bled for five days.
Heidi Miller, development manager at the Yellowhammer Fund, an abortion advocacy and reproductive justice organization, said that even with exceptions, most healthcare providers still won’t perform an abortion because of fear of prosecution. She said that they are “a farce” and almost never honored.
“[Exceptions are] supposed to be, at least allegedly, honored by a health care provider. But on the flip side of that, health care providers are absolutely terrified to provide people care, whether it’s miscarriage management, a D&C, anything along those lines,” Miller said. “They’re terrified because they could potentially be facing a felony and 99 years in prison, and that’s a very real reality.”
But exceptions may be where Democrats and Republicans are willing to agree on.
Alabama House Speaker, Rep. Nathaniel Ledbetter, R-Rainsville, said in a press conference on Thursday that is something legislators will have to discuss, but there is no guarantee that may happen in the current legislative session.
“You talk about a 14-year-old kid – something may happen to you and I think we got to be cognizant of that – one thing that we want to make sure is we don’t go overboard and hurt people we’re trying to help, as far as saving children and being a pro-life states,” Ledbetter said.
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