It’s official: Abortion will be illegal in Alabama. Governor Kay Ivey signed the controversial Human Life Protection Act into law, making abortion a Class A felony, punishable by up to 99 years in prison. It’s the nation’s most restrictive abortion law, and it directly violates the 1973 Roe v Wade decision. And according to the bill’s sponsor, that’s the point.
While there have been other bold anti-abortion bills since the president managed to get two new Justices confirmed to the Supreme Court, Alabama’s is, perhaps, the best shot at being taken up by SCOTUS. State Rep. Terri Collins, a Republican, wrote House Bill 314 specifically to be challenged, with the intent of retesting Roe v. Wade under the new, and hopefully less abortion-friendly, Supreme Court. To that end, she even threatened to kill the bill herself if the Senate added an exception for rape and incest.
Well, Rep. Collins got her wish, at least so far: The Alabama House passed the Human Life Protection Act 74 to 3. After chaotic arguments over whether to add a rape and incest exception as an amendment, the final vote to pass it in the Senate was 25-6. Governor Kay Ivey, who had previously refused to say how she would handle the bill, has now signed it. And in November 2019, the most restrictive abortion law in the nation since that fateful SCOTUS decision back in ’73 will take effect in the state of Alabama – unless it’s struck down by the courts.
HB314 gets straight to the point. Abortions and attempted abortions – with the exception of those deemed medically necessary to save the mother – will be felonies. The women won’t be held criminally or civilly liable, but those actually performing the operations could end up in prison – potentially for life.
In the legislative findings, Rep. Collins points out that the state’s 1975 law criminalizing abortion had never been repealed. It was simply rendered unenforceable by Roe. Another law from the same year includes unborn children as people for the purpose of defining homicide. Alabama electors approved by majority vote an amendment to the state’s constitution in 2018 “declaring and affirming the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”
After an appeal to the natural law that all humans are created equal, the bill states several medical facts regarding the child’s development during the early stages of pregnancy, such as how early a heartbeat can be detected.
Then comes the moral argument, including several historical comparisons: Unborn children are human individuals, worthy of the same rights as others – and since the Roe v. Wade decision, more than 50 million babies have been aborted. The bill quotes the estimated lives lost from Nazi death camps, Chinese purges, Stalin’s gulags, Cambodia’s killing fields, and the Rwandan genocide — all of which combined don’t total a third the number of babies killed legally in the United States alone these last 46 years.
Again, though this act criminalizes abortion, it isn’t the pregnant women who would be punished – either criminally or civilly. This law focuses on those performing abortions. Any successful termination not covered by the medical exception in this bill would be a Class A felony, punishable by up to 99 years in prison, and a failed attempt becomes a Class C felony, punishable by up to 10 years in prison.
The very first term defined in this bill is abortion:
“The use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.”
Excluded from the definition, however, are cases in which any of these activities are employed to prematurely deliver the baby, either to save the infant or the mother, or to remove the remains if the child has already died. It also does not apply in the cases of ectopic pregnancies or lethal anomalies.
An ectopic pregnancy is one in which the fertilized egg either implants outside the uterus or inside the cornu of the uterus. This can take on a number of forms, depending on where the egg ends up. In very rare cases, it is possible that the baby can be carried to term. However, infants aren’t designed to develop outside a womb, and a woman’s body certainly isn’t designed to carry one anywhere else. In almost every case, the child is doomed – as is the mother, should the pregnancy not be terminated either naturally (miscarriage) or through medical intervention. Similarly, lethal anomalies are conditions from which an unborn child would either be stillborn or die shortly after birth.
Aside from this medical necessity exception, there are no others. There’s no reliance on a heartbeat and no rape or incest clause. And unlike the abortion protection passed in New York earlier this year, women can’t claim mental illness as a valid excuse for terminating the pregnancy unless both the physician who would do the abortion and a psychiatrist with at least three years of clinical experience agree that she’s likely to try to kill herself or the child. Then, the pregnancy may be terminated to prevent such actions.
The Roe Challenge
Will the law stand? Abortion activists have sworn to fight it and have it struck down before it ever goes into effect in November. Remember, the goal here is to make it to the Supreme Court. The bill addresses some of the issues the 1973 Court found with the Texas law it struck down – but leaves one: abortions to save the mother’s life. Justice Harry Blackmun argued at the time that if the fetus is entitled to 14th Amendment protection as a person, then it seems any exception allowing it to be deprived of life without due process – even if only to save the mother’s life – is a contradiction to the amendment.
The Human Life Protection Act makes no mention of the 14th Amendment, but the idea that a person’s life can’t be taken from them legally without due process didn’t originate there. It was explicitly stated in the Fifth, and, before that, implied in the passage of the Declaration partially quoted by this very bill.
However, one could argue that both the Fifth and 14th Amendments apply to the state taking a person’s life, not a doctor stuck with the choice of either killing the infant or letting both infant and mother die.
There is also no due process requirement for the defensive use of lethal force. It’s a tad different, as the unborn children in these medical emergencies aren’t maliciously trying to harm their mothers – but the point is that the urgency is the same: If you have time to wait for a judge or jury to sign off on it, then it’s hardly an immediate threat.
The hope behind this bill and many others like it, of course, is that enough of the Justices on today’s Court are anti-abortion. This law, should they choose to address it, will test that theory.
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