Abortion in Alabama

Abortion in Alabama is illegal. Under section 26-23H-4 of the Code of Alabama in the U.S. state of Alabama, it is unlawful for an abortion to be performed unless it is deemed absolutely necessary in order to prevent a serious health risk to the pregnant woman. There are no exceptions for rape or incest.[1]

Since 2014, multiple attempts were made to criminalize abortion any time after the detection of embryonic cardiac activity (commonly referred to as a 'fetal heartbeat'),[note 1] which effectively banned any abortion beyond 21 days after fertilization. These attempts to criminalize abortion were unsuccessful largely due to the law's early deadline being perceived as an implicit violation of the right to abortion that was established by Roe v. Wade. When the US Supreme Court overturned the Roe v. Wade decision in 2022, it eliminated the previous legal protections offered at the federal level for abortions. The Human Life Protection Act was enacted as part of an unsuccessful attempt to challenge and overturn Roe. Until June 2022, the HLPA served as a trigger law, set to criminalize all abortion immediately[2] should the Supreme Court overturn Roe v. Wade, such as in the leaked draft opinion regarding Dobbs v. Jackson Women's Health Organization.[3] Upon the issuance of a final opinion in that case, the state successfully sought dissolution of an injunction against enforcement of the HLPA, and the law is currently in effect.

Abortion remains a divisive issue in Alabama (with a strong opposition to abortion rights in the very socially conservative state), with a 2014 survey by Pew Research Center concluding that 58% of surveyed adults in Alabama believe abortion should be illegal in most or all cases, and 37% indicating it should be legal. A strong correlation was observed between the opposition to abortion and conservative political views and deeply-held religious belief was a weaker predictor of opinions.[4] As of 2021, only three abortion clinics existed in Alabama, down from 45 in 1982. The remaining three clinics were ordered to "immediately cease and desist operations"[5] after the overturning of Roe v. Wade on June 24, 2022.[6]

History

In Alabama between 1892 and 1935, there were 40 prosecutions and five convictions of women having abortions.[7]

Legislative history
Status of the "heartbeat bills", i.e. abortion bans at around 6 weeks, by state (exceptions not marked):
  Heartbeat bills supplemented or rendered moot by abortion bans at all stages
  Abortion bans at all stages, but heartbeat bills blocked
  Other states with abortion bans at all stages, or states without abortion providers
  Heartbeat bill in force, without total abortion bans
  Heartbeat law partially passed by state legislature
  Law passed but blocked or struck down by court order

By the end of the 1800s, all states in the Union (but Alabama) had therapeutic exceptions in their legislative bans on abortions.[7] In the 19th century, bans by state legislatures on abortion targeted protecting the life of the mother given the number of deaths abortions caused; state governments envisioned themselves as protecting the lives of their citizens.[7]

By the end of 1972, Mississippi allowed abortion only in cases of rape or incest, and Alabama and Massachusetts allowed abortions only in cases where the woman's physical health was endangered. In order to obtain an abortion during this period, women would often travel from a state where abortion was illegal to states where it was legal.[8]

Dates of when heartbeat laws come into effect (as of May 25, 2019)

Judicial history

The 1973 US Supreme Court's decision in the Roe v. Wade ruling meant the state could no longer regulate abortion in the first trimester.[7]

A 2016 Alabama law banned dilation & evacuation (D&E) which is the most common abortion procedure used in the second trimester.[9] In August 2018, the Eleventh Circuit court ruled the D&E legislation to be unconstitutional, blocking it from enforcement.[10] The US Supreme Court refused to hear an appeal in its 2019 term.[11]

On February 6, 2019, Ryan Magers filed a wrongful death lawsuit against an abortion clinic, Alabama Women's Center, after his girlfriend had a then-legal elective abortion in January 2017. Magers also sued three employees of the clinic and the pharmaceutical company that manufactured the medication used to induce the abortion. Madison County Probate Judge Frank Barger recognized the status of the unborn fetus as a person on March 4, 2019, in accepting the case.[12]

In May 2019, Planned Parenthood and the American Civil Liberties Union both said they would challenge Alabama's recently- enacted abortion ban in the federal courts.[13] In June 2019, it was reported that a woman, Marshae Jones, whose pregnancy was terminated after she was shot in the stomach in 2018 during a fight, was arrested on grounds of manslaughter of the fetus,[14] though the case was eventually dismissed.

Clinic history
Total abortion clinics in Alabama by year

Between 1982 and 1992, the number of abortion clinics in Alabama decreased by 25 clinics, going from 45 in 1982 to 20 in 1992.[15] In 2014, there were five abortion clinics,[16] and 93% of the counties in the state did not have any clinics,[17] leaving 59% of women in the state aged 15–44 without access to a local abortion clinic as of that year.[17] In 2017, there were two Planned Parenthood clinics, both of which offered abortion services, in Alabama which at the time had a population of 1,117,288 women aged 15–49.[18]

In March 2019, there were five abortion clinics in Alabama, all of which were located in urban areas — Birmingham, Huntsville, Tuscaloosa, Mobile and Montgomery.[19] Of the five clinics operating in March 2019, one was only open on weekends.[19]

In 2019, the Yellowhammer Fund provided financial assistance (paying for their abortions) to women at three abortion clinics in Alabama.[20] In May and June of that year, Alabama's abortion clinics were receiving regular calls from women inquiring whether they could obtain a legal abortion as legislative changes resulted in confusion over abortion rights in the Alabama.[21]

As of 2021, only three abortion clinics remained in Alabama: West Alabama Women's Center in Tuscaloosa, Reproductive Health Services in Montgomery, and Alabama Women's Center in Huntsville.[22] Currently, Alabama restricts advertising of abortion clinics.[23] In order for abortion clinics in Alabama to remain in business at that time, they had to abide by abortion-care policies. Alabama passed additional medically unnecessary codes, and required that they be followed in order to operate an abortion clinic.[24] In some cases codes were passed to target specific clinics; for example, a 2016 law was enacted that prohibited abortion clinics from renewing their current license if the clinic was within 2,000 feet of an elementary or middle school to target a specific clinic.[24] Clinics must have access to a hospital in the same geographical area as the abortion facility.[24]

As of 2022, Alabama's three remaining abortion clinics have been ordered to stop all abortion procedures.[5]

Alabama and cardiogenesis

In 2006, Alabama was one of 23 states to have a detailed abortion-specific informed consent requirement.[25] By law, abortion providers in Alabama, Louisiana and Mississippi were required to perform an ultrasound prior to providing women with an abortion, despite that an ultrasound in the first trimester has no medical necessity.[26] In 2013, state Targeted Regulation of Abortion Providers (TRAP) law applied to medication induced abortions and private doctors' offices in addition to abortion clinics.[27]

Alabama was one of five states nationwide that tried, and failed, to pass a so-called 'fetal heartbeat bill'[note 1] in 2014.[28] House Bill 490 prohibiting abortions once a cardiogenesis or "fetal heartbeat" is detected passed the Lower House (73–29) on March 4, 2014.[29] The bill later died in committee.[30] Despite this, Alabama's Lower House was the first state in the nation to pass such a bill.[29] The Alabama state legislature tried and failed in 2015, 2016, and 2017 to pass a fetal heartbeat bill, each time being joined by two, three, and seven other states respectively.[28]

As of March 2019, the law required women wait 24 hours after their initial consult before they could obtain a second appointment for the actual procedure.[19] State law at the time prohibited state-funded health insurance companies from offering abortion services unless the life of the woman was at risk, or the pregnancy was a result of rape or incest.[19]

One of the most active years for state legislatures in terms of trying to pass abortion rights restrictions was 2019. State governments with Republican majorities began to push these bills after conservative Supreme Court candidate Brett Kavanaugh was confirmed as a US Supreme Court judge, replacing the more liberal Anthony Kennedy. These state governments generally saw this as a positive sign that new moves to restrict abortion rights would face less resistance from the courts.[31]

The Alabama Human Life Protection Act

The most recent act relating to the abortion in Alabama is "The Alabama Human Life Protection Act" also known as the Human Life Protection Act. Formally, the act has the name of House Bill 314. The bill was drafted by the Alabama Pro-Life Coalition.[32] The bill, which banned abortions at every stage of pregnancy and made it a crime for doctors to perform the procedure (except in the case of a medical emergency), was introduced into the Lower House on April 2, 2019. The bill passed the Lower House on April 30,[8] the Senate on May 14,[9] and was signed into law by then-Governor Kay Ivey on May 16, 2019.[10]

Formerly, abortion was allowed in cases of incest or rape. With the introduction of the Human Life Protection Act, these cases were no longer exempt. Additionally, cases in which mothers faced mental illness were declared insufficient to provide an exception.[33] These restrictions made the bill one of the most aggressive anti-abortion laws in American history.[33] Although the bill was approved by Alabama legislators, then-Governor Kay Ivey recognized that its aggressiveness would most likely not be approved in the federal court due to Roe v. Wade.[33] Despite this, Alabama legislators hoped the introduction of the bill could weaken pre-existing abortion protections.

Shortly after the introduction of the Human Life Protection Act, Planned Parenthood and ACLU of Alabama filed a lawsuit to challenge the anti-abortion bill on May 24, 2019. Serving as plaintiffs to the case were the three remaining abortion clinics in Alabama: Alabama Women's Center, Reproductive Health Services, and the West Alabama Women's Center.[34]

The controversial bill was set to go into effect on November 15, 2019. However, on October 29, 2019, the bill was blocked by the federal court.[32] US District Judge Myron Thompson granted a preliminary injunction on October 28, 2019, until the court was able to resolve the case in full. Federal judge Myron H. Thompson declared the bill defied previous rulings seen in Roe v. Wade and the U.S. Constitution. Furthermore, Judge Thompson expressed that the bill could cause "serious and irreparable harm," referring to the Planned Parenthood Southeast v. Strange lawsuit from 2014 that identified a near-total ban as adding a financial burden to women and their need to access abortion services.[35] As a result of this need, women are more likely to take unsafe measures to end pregnancies.[35] Judge Thompson lifted the injunction after the Supreme Court overturned Roe v. Wade on June 24, 2022, allowing the law to go into effect.[36]

Statistics

Between 1972 and 1974, Alabama had an illegal abortion mortality rate of 0.1 and 0.9 per million women aged 15–44.[37] In 1990, 456,000 women in the state faced the risk of an unintended pregnancy.[15] In 2010, the state had nine publicly-funded abortions, none of which were federally or state funded.[38]

In 2014, 59% of women in Alabama lived in a county without an abortion clinic. There was an average of one abortion clinic every 10,483 square miles that year.[19]

Number of reported abortions, abortion rate and percentage change in rate by geographic region and state in 1992, 1995 and 1996[39]
Census division and stateNumberRate % change 1992–1996
199219951996199219951996
Total1,528,9301,363,6901,365,73025.922.922.9–12
East South Central54,06044,01046,10014.91212.5–17
Alabama17,45014,58015,15018.21515.6–15
Kentucky10,0007,7708,47011.48.89.6–16
Mississippi7,5503,4204,49012.45.57.2–42
Tennessee19,06018,24017,99016.215.214.8–8
Number, rate, and ratio of reported abortions, by reporting area of residence and occurrence and by percentage of abortions obtained by out-of-state residents, US CDC Estimates
LocationResidenceOccurrence % obtained by

out-of-state residents

 YearRef
No.Rate^Ratio^^No.Rate^Ratio^^
Alabama -- -- -- 13,358 14 215 9.3 1992 [40]
Alabama -- -- -- 14,221 15 236 12.3 1995 [41]
Alabama -- -- -- 13,826 14 229 14,6 1996 [42]
Alabama7,8938.21338,0808.413617.72014[43]
Alabama6,6186.91115,8996.29913.12015[44]
Alabama 6,986 7.3 118 6,642 7.0 112 16.8 2016 [45]
^number of abortions per 1000 women aged 15–44; ^^number of abortions per 1000 live births

Abortion incidents

Roughly 862,320 US abortions occurred in 2017, with .7% occurring in Alabama account. Although over 6,110 abortions occurred in Alabama in 2017, not all were performed on Alabama residents. Residents of other states traveled to Alabama for abortions, and some Alabama residents traveled to other states for abortions. Between 2014 and 2017 the Alabama abortion rate declined from 8 to 6 abortions per 100,000 women, a 25 percent decrease.

Restrictions on abortion

As of June 24, 2022, with the Supreme Court's overturning of Roe v. Wade, abortion in Alabama became illegal except when the life of the mother is in danger. There are not exceptions for rape or incest.[1] On August 28, 2023, attorneys for Attorney General Steve Marshall wrote in a court filing that the attorney general will prosecute those who help a pregnant person leave the state to get an abortion.[46]

Abortion rights views and activities

Views

Abortion is a divisive issue in the state, with 37% of adults believing it should be legal in all or most cases and 58% believing it should be illegal in all or most cases in 2014.[47][48] According to a 2014 Public Religion Research Institute (PRRI) study, 60% of white women, the same percentage as white men, in the state believed that abortion should be illegal in all or most cases.[49]

In 2018 Alabama, fifty-nine percent of Alabamians voted in favor of a state constitutional amendment declaring the state's policy to recognize the rights of the unborn.[50]

Politically, the Alabama Executive Governor, Senate, and House report a majority of anti-abortion views.[23] In recent years, white evangelical women have played a major role in helping Republican male anti-abortion rights candidates get elected.[49] One of the biggest groups of women who oppose legalized abortion in the United States are southern white evangelical Christians.[49]

With states like Alabama and Georgia passing restrictive abortion laws in early 2019, some businesses announced they would boycott these states. Birmingham Mayor Randall Woodfin said that these boycotts would likely mean two tech companies would not base themselves in the city. Other states moved to try to take advantage of this political situation, including New Jersey, where Governor Phil Murphy related a statement that said, "New Jersey is open for business for any company that, given the assault on a woman's right to choose perpetrated by states like Alabama and Georgia, is seeking a home that recognizes basic constitutional rights. [...] New Jersey offers not only a hospitable business climate, but also maintains its progressive values, which include defending a woman's right to choose."[51]

Yellowhammer Fund President Amanda Reyes said in 2019, "Republicans don't have fewer abortions than Democrats or liberals or anarchists or communists. It's that our political rhetoric paints people who have abortions as largely the same—poor women, young women, irresponsible women, women who hate children. [...] It's gotten us to a point where we can't see the fact that we're all having abortions, and we're doing it for reasons we personally think matters—and that's all that matters. Pro-life women are having abortions, too."[20]

Organizations

The Yellowhammer Fund is an organization that financially assists women in Alabama who are seeking an abortion but have difficulty paying for one.[20] In May 2020, The Yellowhammer Fund purchased West Alabama's Women Center from retiring owner, Gloria Gray.[52] The organization purchased the clinic to ensure it would continue providing abortion services to the area. Yellowhammer Fund is currently striving to add additional services to the clinic, including hormone therapy for transgender people, midwifery and doula care, and gynecological care.[52]

People Organizing for Women's Empowerment and Rights House (P.O.W.E.R. House) houses the Montgomery Area Reproductive Justice Coalition. It currently serves as Montgomery's only abortion clinic. Additionally, the clinic provides transportation and housing to those in need of these services.[53]

American Civil Liberties Union of Alabama (ACLU) is an organization striving to protect the right to abortion for all people.[54] ACLU's work centers around the courtroom to stop extreme attacks to women's reproductive rights.[55] Additionally, ACLU ensures governmental policies provide access to affordable contraception options.

Donations

After Alabama passed its abortion legislation in 2019, The National Network of Abortion Funds received more than US$262,000 in donations from more than 12,000 people.[56] Yellowhammer Fund also saw a surge in donations. Because of fundraising efforts by a single activist, the organization earned close to US$30,000 in donations in a three-hour period.[56]

Protests

On May 19, 2019, women from Montgomery participated in an abortion rights march, the "March for Reproductive Freedom",[57] outside the Alabama Capitol building as part of a #StoptheBans rally, a protest against the new abortion law signed by Governor Kay Ivey a week prior.[58][59] In conjunction to this protest, other Alabama protests took place in Birmingham, Huntsville, and Mobile on May 19, 2019.[20] The Birmingham rally was held in Kelly Ingram Park and had 2,000 supporters.[57] The rally in Huntsville had support from 1,000 people and was held in Butler Green Park.[57] Mobile hosted two rallies, one in Bienville Square and the other in downtown Mobile.[57] A smaller rally supporting the movement was held in Florence, Alabama.[57]

Anti-abortion views and activities

Activities

North Jefferson Women's Center is a non-profit family planning clinic in Fultondale that opposes abortions.  In 2019, they sought funds for a new ultrasound machine to assist pregnant women using their services. Unable to pay for it on their own, the Southern Baptist organization The Psalm 139 Project donated the funds to support the clinic, which teaches that life begins at conception. The North Jefferson Women's Center will never refer women to an abortion provider, even if the pregnant woman desires such information.[21]

The Southern Baptist Convention held their annual convention in Birmingham in June 2019. The timing was coincidental with the efforts in the state to restrict legal abortion access, but opposing legal abortions was part of their planned two-day discussion.[21]

An anti-abortion van parked outside of an abortion clinic

Violence

On May 12, 1984, two men entered a Birmingham, Alabama clinic on Mother's Day weekend shortly after a woman opened the doors at 7:25 A.M. Forcing their way into the clinic, one of the men threatened the woman not to prevent the attack while the other, wielding a sledgehammer, did between US$7,500 and US$8,500 of damage to suction equipment. The man who damaged the equipment was later identified as Edward Markley. Markley is a Benedictine priest who was the Birmingham diocesan Coordinator for Pro-Life Activities. Markley was convicted of first-degree criminal mischief and second-degree burglary. His accomplice was not identified.

The following month, June 15, 1984, Markley entered a women's health center in Huntsville, Alabama.[60] Kathryn Wood, one of the workers, received back injuries and a broken neck vertebrae while preventing Markley from splashing red paint on the clinic's equipment. Markley was convicted of first-degree criminal mischief, one count of third-degree assault, and one count of harassment in the Huntsville attack.[61]

Between 1993 and 2015, 11 people were killed at American abortion clinics.[62] The anti-abortion group named Army of God claimed responsibility for Eric Robert Rudolph's 1997 shrapnel bombing of abortion clinics in Atlanta and Birmingham.[63][62] The organization embraces being labelled Christian terrorists.[64] On January 29, 1998, Robert Sanderson, an off-duty police officer who worked as a security guard at an abortion clinic in Birmingham, Alabama, was killed while working at the clinic when it was bombed. Rudolph admitted responsibility for the bombing and he was also charged with three Atlanta bombings: the 1997 bombing of an abortion center, the 1996 Centennial Olympic Park bombing, and another bombing of a lesbian nightclub. He received two life sentences for his crimes.[65][66][62][67]

Footnotes
  1. The American College of Obstetricians and Gynecologists states that:
    "Until the chambers of the heart have been developed and can be detected via ultrasound (roughly 17-20 weeks of gestation), it is not accurate to characterize the embryo's or fetus's cardiac development as a heartbeat."
    They also argue that the term 'fetal heartbeat' should be replaced with:
    ""Embryonic cardiac activity" before eight weeks of gestation and "fetal cardiac activity" after eight weeks of gestation"
    ACOG Guide to Language and Abortion

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