To Pregnancy Resource Centers, from Eric Johnston
The Alabama Human Life Protection Act (“AHLPA”) was signed into law on May 15, 2019. A federal court lawsuit was filed resulting in a preliminary injunction, which subsequently was dissolved by court order on June 24, 2022, as a result of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The AHLPA went into legal effect that very same day. It is now enforceable in the State of Alabama. The purpose of this memo is to briefly outline and comment on the operative provisions of the Act as follows: *
26-23H-3, 1975 Code of Alabama :
(1) The definition of abortion includes the surgical or medical (chemical) termination of the pregnancy. It does not include an activity done with the intent to:
(a) save the life or preserve the health of an unborn child
(b) remove a dead unborn child
(c) deliver the unborn child prematurely to avoid a serious health risk to
the child’s mother, or
(d) preserve the health of her unborn child.
The law permits enforcement of penalties for administering or supplying abortifacients. This includes the possibility of proceedings against those who send the drugs into Alabama. That will be the task of law enforcement. Currently, the Biden Administration says the FDA will preempt all state laws and will send drugs to all 50 states. The Alabama Attorney General says he will oppose this. Our belief at this time is that the FDA will not prevail. The law does not regulate contraceptives, plan B or in vitro fertilization.
(2) The definition does not include an ectopic pregnancy, which is a pregnancy resulting by the fertilized egg implanting or attaching outside the uterus or implanted inside the cornu of the uterus.
(3) The definition does not include a procedure to terminate the pregnancy of an unborn child that has a lethal anomaly, meaning the condition that the unborn child would die at birth or shortly thereafter or be still born.
(4) Medical emergency includes only a serious health risk defined below.
(6) A serious health risk to the unborn child’s mother includes only a medical condition that necessitates termination of the pregnancy to avert her death or to avert serious risk of a substantial physical impairment of a major bodily function. It does not include an emotional condition or mental illness.
*The numbers correspond to the numbers in the statute.
Another exception is if a psychiatrist, as a second physician unrelated to the physician who would perform the abortion, with a minimum of three years clinical experience, diagnoses a serious mental illness such that she will engage in conduct that would result in her death or the death of her unborn child. In such event, the termination shall only be performed by an Alabama licensed physician in an Alabama hospital where he or she has admitting privileges. This definition was to satisfy the medical and hospital associations, but we created an exception that there only be implemented through a substantial process to avoid abuse or a routine mental health exception practice. Also, keep in mind that since the violation of the law is a Class A felony, being ten years to life, there is a substantial deterrent to abuse.
(7) The unborn child, or person, is defined as a human being, specifically including an unborn child in utero at any stage of development, regardless of viability. This definition is used to provide an evidentiary basis for a criminal violation. It is the same as in the Alabama Criminal Code.
§26-23H-4, id. (a) It is unlawful to perform or attempt to perform an abortion, except where an exception applies.
(b) If the attending physician determines the abortion is necessary because of the defined exceptions, unless it is a medical emergency, the physician’s determination shall be confirmed in writing by a second physician licensed in Alabama.
§26-23H-5, id. The woman will not be criminally or civilly liable for an abortion that is performed or attempted to be performed. It is and has been APLC’s policy to not criminalize the activities of the woman, but to provide her as much assistance and guidance as possible. Additionally, by giving the woman immunity, she cannot be prosecuted or held civilly liable for obtaining an abortion in another state, nor will a person who assists her in going to another state, where abortion is legal, be prosecuted or held civilly liable.
§26-23H-6, id. (a) An abortion performed in violation of the law is a Class A felony, being inclusive of ten years to life in prison
(b) An attempted abortion performed in violation of this chapter is a Class C felony, being one year to ten years in prison.
Note: the severity of the penalty will be a deterrent to routinely provide unlawful abortions. Unlike under Alabama’s previous law, where the penalty was only a misdemeanor, it is highly unlikely anyone would engage in an abortion practice or the continued performance of unlawful abortions.
Alabama has both the Human Life Protection Act and the Alabama Constitutional Amendment, Article I, §36.06, 1901 Constitution of Alabama that recognizes the unborn child as a person without the meaning of the Alabama Constitution. This amendment serves two purposes. First, it helps shield further legal action against the AHLPA and second, it does not permit exceptions such as rape or incest. Those conditions must be carefully and charitably treated for those who come into pregnancy resource centers for assistance.
As time goes forward and the application of the AHLPA is put into practice, additional questions and concerns will arise. Please feel free to contact me at any time for guidance. Thank you for your service.