Alabama’s attorney general confirmed what many abortion rights advocates have warned for years: Women can be prosecuted for using medication abortion, despite the state’s abortion ban explicitly stating it does not criminalize the pregnant person.
A spokesperson for state Attorney General Steve Marshall told the conservative outlet 1819 News last week that although Alabama’s near-total abortion ban, the Human Life Protection Act, does not penalize a pregnant woman seeking an illegal abortion, he plans to rely on an older law to prosecute people seeking abortion care in the state.
“The Human Life Protection Act targets abortion providers, exempting women ‘upon whom an abortion is performed or attempted to be performed’ from liability under the law,” a spokesperson for Marshall told the conservative outlet, and first flagged by feminist writer Jessica Valenti.
“It does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law — which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children,” the spokesperson added. Marshall’s office did not respond to HuffPost’s request for comment.
Alabama’s chemical endangerment law was first passed in 2006 to protect children from dangerous fumes and chemicals found in home-based meth labs. Not long after, district attorneys started applying the law to drug-using pregnant women, despite the law including nothing about fetuses. Prosecutors stretched the interpretation of the law, reasoning that a fetus is a child, and by ingesting drugs, the pregnant person is bringing chemical harm to the so-called child. As a result, the law has been used to criminalize hundreds of pregnant people when they test positive for a drug or medication.
And now Marshall plans to stretch that interpretation further to include pregnant people taking abortion pills, the combination of two safe and FDA-approved drugs called misoprostol and mifepristone.
Although medication abortion is still legal on the federal level — and the FDA recently expanded access — it’s illegal for any Alabama-based physician to prescribe abortion pills in the state under Alabama’s near-total ban. The current ban only includes exceptions for the pregnant person’s life and threatens physicians with felony charges and up to 99 years in prison for providing abortion care. Based on this, Marshall seems to reason that abortion pills are illegal substances in Alabama, falling under the chemical endangerment law.
“This is an example of them saying the quiet part out loud,” said Farah Diaz-Tello, senior counsel and legal director at Lawyering for Reproductive Justice: If/When/How.
“A lot of us have long been saying that, of course, it would naturally follow that if you’re going to prosecute somebody for an unintentional pregnancy loss, that you could prosecute them for prompting a pregnancy loss.”
“This is an example of them saying the quiet part out loud.”
Marshall’s interpretation and application of the chemical endangerment law is quite a stretch. For one, Alabama residents can legally access medication abortion out-of-state or through prescriptions from physicians authorized in other states. Additionally, no laws in Alabama criminalize self-managing your own abortion, which more and more people are considering in the wake of Roe’s demise. The only two states with laws explicitly outlawing self-managed abortions — and, therefore, criminalizing the pregnant person — are South Carolina and Nevada.
Marshall has since walked back his comments after the mainstream media picked them up. He clarified to reporters on Wednesday that women cannot be prosecuted for taking medication abortion, only those who provide the abortion pills.
And he gave examples of who is prosecuted under the chemical endangerment law, noting that pregnant people taking medication abortion would not fall into that category.
“For example, ingesting methamphetamine could be something that’s actionable criminally, and in fact, those prosecutions have taken place in Alabama,” Marshall said of women who have been criminalized by the chemical endangerment law for ingesting the narcotic while pregnant.
“By no means have we said we are using the FDA’s rule as a way of targeting women under that old statute,” he added, referring to the FDA’s recent rule change to expand the availability of abortion pills in pharmacies across the U.S.
The anti-abortion movement was galvanized by their many anti-choice wins this year. The wins validated their antiquated views on reproductive health and gave them license to campaign on policy positions that were seen as radical just two or three years ago. Six-week abortion restrictions or bans with no exceptions for rape or incest that were once taboo are now part of mainstream political posturing.
Many pro-choice advocates worry that the Republican Party line that pregnant people will never face criminal penalties for illegal abortions will soon go out the window, too.
“This is another case where we see the disingenuousness of anti-abortion lawmakers who promise that no charges will be brought against people who seek abortion care,” said Grace Howard, an assistant professor of justice studies at San José State University.
“It’s why I tell people to not believe those exception clauses. I have seen it time and time again in my research: having a pregnancy control law… on the books that says ‘we won’t prosecute you’ doesn’t mean you won’t be prosecuted,” she added. Howard is currently writing a book titled “The Pregnancy Police: Conceiving Crime, Arresting Personhood,” and much of her research focuses on Alabama’s chemical endangerment law.
Although a slip-up that he’ll likely pay for politically, Marshall’s comments hint at where the anti-abortion movement is headed. People in Alabama and across the country should pay attention, said Howard.
“It also shows us, once again, that non-abortion stuff is abortion stuff,” she said. “Maybe you weren’t worried about the chemical endangerment law because you would never take drugs during your pregnancy. Maybe you were even in favor of it. But now? They might be coming for you.”