The Alabama Human Life Protection Act

In May 2019, Alabama Governor Kay Ivey signed into law the Alabama Human Life Protection Act (AHLPA), which was scheduled to take effect in November 2019. The bill criminalizes abortion by prohibiting the “performance or attempted performance” of abortions in Alabama, with the only exceptions being those performed “to avoid a serious health risk to the unborn child’s mother” and where the “unborn child has a lethal anomaly.” Abortions performed following rape or incest are considered felony offenses under the AHLPA if they do not satisfy one of the exceptions. In addition, the AHLPA bans abortions for “an unborn child in utero at any stage of development,” omitting a time restriction commonly found in abortion laws in other states.

The AHLPA outlines specific classifications and ramifications for the performance and attempted performance of an abortion in Alabama. Legislative Attorney Jon O. Shimabukuro of the Congressional Research Service reports that the performance of an abortion is considered a Class A felony offense under the AHLPA. Abortion is grouped among Class A felonies, which include first degree murder, rape, and kidnapping in the first degree. Such heinous crimes carry severe consequences, with prison sentences of at least 10 years and up to 99 years. The attempted performance of an abortion is a Class C felony under this bill. This places the attempted performance of an abortion alongside manslaughter, robbery, and certain drug-related crimes. Prison sentences for Class C felonies range from about 1 year up to 10 years. In addition to facing incarceration, violations of the AHLPA also bring potential fines of up to $60,000 for the performance of an abortion and up to $15,000 for the attempt to perform one.

Following the signing of the bill, Governor Ivey issued a statement that the bill “stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” However, she recognized that the jurisprudence established by long-standing United States Supreme Court precedent such as Roe v. Wade could stand in the way of the bill’s implementation. Her suspicions were correct. Although the AHLPA was to be effective on November 15, 2019, United States District Court Judge Myron Thompson temporarily blocked the bill by granting a motion for a preliminary injunction on October 29, 2019.

Robinson, et al. v. Marshall: The Case for Women’s Reproductive Rights

The case in this matter, Robinson, et al. v. Marshall, was brought by medical providers of abortion services who are suing Alabama Attorney General Steve Marshall on behalf of themselves and their patients. The plaintiffs claim that the AHLPA is unconstitutional under the Fourteenth Amendment because “it violates their patients’ substantive-due-process rights to liberty and privacy.” Judge Thompson upheld these allegations in his decision, citing a line of compelling cases in favor of the plaintiffs’ contentions. 

Judge Thompson first mentions Planned Parenthood of Southeastern Pa. v. Casey and Stenberg v. Carhart for the proposition that Supreme Court precedent protects a woman’s “right to choose” under the Constitution, particularly when terminating pregnancies “before viability.” While the period in which a fetus is considered viable is still debated, experts believe that the limit of viability is around 23 to 24 weeks for the common 40-week pregnancy.

Judge Thompson does acknowledge that Alabama has “legitimate interests in protecting maternal health and the potential life of the fetus.” However, he concludes that the near-total ban established by the AHLPA poses an “undue burden” to a woman’s right to terminate her pregnancy under Casey. Judge Thompson finds that barring women from obtaining an abortion in the exercise of their freedom to decide whether to bear a child would incur substantial costs. For instance, Alabamian women might resort to unsafe measures to terminate their pregnancies. In this light, the right to abort a pregnancy should be considered a public health matter, rather than a criminal matter. 

In sum, the federal court found that the AHLPA defies the United States Constitution in its attempt to prohibit abortion before a fetus is considered viabile. The plaintiffs convincingly set forth compelling arguments that the bill violates fundamental Constitutional rights, winning a preliminary injunction of the law’s enforcement. This decision marks an important victory for advocates of abortion rights, signaling a healthy respect for the bodily liberty of Alabama women.

Natalia Núñez is a sophomore from Yonkers, New York pursuing a Public Policy major, Markets & Management Studies certificate, and Psychology minor.