If past media responses to abortion restrictions are any indication, you’re going to see a tremendous amount of misinformation about Alabama’s law that “bans abortion,” which the governor signed Wednesday.
You can read House Bill 314 here for yourself. It is short and easy to understand, but here is a summary of the important points that are likely to be hotly contended on social media by people who don’t know what they’re talking about.
1. The Law Defines All Humans as Persons from Conception
HB 314, or The Alabama Human Life Protection Act, defines all unborn children as persons. This differentiates it from Georgia’s LIFE Act, which would only afford legal protection to preborn babies whose heartbeat can be detected, usually around the gestational age of six weeks.
UNBORN CHILD, CHILD or PERSON. A human being, specifically including an unborn child in utero at any stage of development, regardless of viability.
2. HB 314 Defines Most Conventional Abortions as Felonies
HB 314 defines most abortions as class A felonies and attempted abortions as class C felonies.
Section 6. (a) An abortion performed in violation of this act is a Class A felony.
(b) An attempted abortion performed in violation of this act is a Class C felony.
3. Many Exceptions Apply
Despite banning most abortions from the moment of conception, many exceptions apply under which abortion would be legal, or cases in which the term abortion is defined to exclude certain types of pregnancy termination, such as ectopic pregnancies. These are standard exceptions made in almost all pro-life legislation. The only popular exception not included is the exception for rape and incest.
Here are the exemptions.
Abortions women perform on themselves. Women are specifically exempted from prosecution.
Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.
One might object that since this statute is written as if an abortion were being performed on the woman by a third party, it must not exempt women from prosecution if they perform the abortion on themselves. However, that is not how courts have interpreted similar statutes in the past. Charges for women who shot themselves in the stomach to kill their preborn children in Florida, Georgia, and Virginia have all been overturned on this principle.
Abortion in the case of serious physical risk to the mother. Such risk is defined as “a condition that so complicates her medical condition that it necessitates the termination of her pregnancy to avert her death or to avert serious risk of substantial physical impairment of a major bodily function.”
The risk must be attested to by a physician licensed in Alabama. Confirmation of “necessity” in emergency situations could be submitted up to 180 days after the abortion.
Serious mental illness. Abortion may be performed upon confirmation from a psychiatrist that the mother could engage in conduct “resulting in her death or the death of her unborn child.”
A psychiatrist exercising “reasonable judgment” must diagnose “a serious mental illness,” and find that “a termination of her pregnancy is medically necessary to avoid the conduct.” (In other words, a medical professional may kill the preborn child…in order to prevent the woman from killing her preborn child. Wrap your head around that one.)
No gestational limits are mentioned in the law with regard to any of the exceptions. However, AL Code § 26-22-3 (2013) governing abortions of viable unborn children states that, “No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible impairment of a major bodily function.”
This suggests abortions under the mental health exception must be done before viability as long as that regulation is determined to not be “in conflict with or antagonistic to this act.”
Termination of preborn babies with “lethal anomalies” (who will die before, during, or shortly after birth).
The term [abortion] does not include a procedure or act…to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.
Removal of ectopic pregnancies.
The term does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy.
Removal of a dead unborn child.
The term does not include these activities if done with the intent to… remove a dead unborn child.
Abortion as defined in HB 314 also excludes any efforts to “deliver the unborn child prematurely to avoid a serious health risk to the unborn child’s mother, or to preserve the health of her unborn child.”
4. The Law Depends on Overturning SCOTUS Precedent
HB 314 is not a nullification law, meaning the state of Alabama will adhere to any court rulings striking down the whole law or parts of it. The law states, “If this act is challenged and enjoined pending a final judicial decision, the existing statutes and regulations that regulate or recognize abortion shall remain in effect during that time.” Given the virtual inevitability that any related court ruling will follow Roe/Casey/Doe precedents, this law is highly unlikely to ever take effect.
The authors of the bill point to the “self-evident truth” that “all men are created equal,” as found in our Declaration of Independence, as evidence this law is moral and necessary. The bill was introduced, however, with the understanding that the pre-existing abortion ban in Alabama “has remained unenforceable as a result of the U.S. Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973) and its progeny.”
While media will play up outrage and controversy over “radical” state efforts to restrict legal abortion, the truth is that neither a ban from conception or a ban at the age of detectable fetal heartbeat, or anything remotely as restrictive, will take effect under the status quo. For abortion to be restricted to any significant extent, one of three things must happen: the Supreme Court must overturn its own abortion precedent, a constitutional amendment must be ratified by three-fourths of the states, or states must decide to nullify the Supreme Court’s ruling and adhere to the plain meaning of the U.S. Constitution, the supreme law of the land.