Abortion Bans

NEAR-TOTAL

Alabama has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.

The ban provides that any person who willfully administers or prescribes to a pregnant woman any drug or substance or employs other means to induce an abortion, unless the abortion is necessary to preserve the woman's life or health, will be fined from $100 to $1000 and may also be imprisoned or sentenced to hard labor for up to a year.  Ala. Code § 13A-13-7 (Enacted 1852; Last Amended 1975).

AFTER 12 WEEKS

Alabama's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  Ala. Code §§ 26-23-1 to 26-23-6 (Enacted 1997).

A court held that this ban is unconstitutional and unenforceable because it does not contain an exception to protect women's health, and because its wording is so broad that it covers "pre-viability second trimester abortions."  Summit Med. Assocs., P.C. v. Siegelman, 130 F. Supp. 2d 1307 (M.D. Ala. 2001).  The U.S. Supreme Court previously held that a similar ban that lacks an exception to protect a woman's health and that bans more than one abortion procedure places an undue burden on a woman's right to choose and is unconstitutional.  Stenberg v. Carhart, 530 U.S. 914 (2000).

Alabama's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony unless it is necessary to preserve the woman's life.  Ala. Code §§ 26-23-1 to 26-23-6 (Enacted 1997).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until after the attending physician, referring physician, or physician's agent, who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician, tells her:  (1) the nature of the proposed procedure, including risks and alternatives; (2) the probable gestational age of the "unborn child"; (3) the probable anatomical and physiological characteristics of the "unborn child"; (4) if the "unborn child" is viable or has reached the gestational age of more than 19 weeks, that the "unborn child" may be able to survive outside the womb, the woman has the right to request the physician to use the method most likely to preserve the life of the "unborn child," and that if the "unborn child is born alive," the attending physician is legally obligated to take all reasonable steps necessary to maintain the life and health of the child; (5) the attending or referring physician must provide an ultrasound prior to the abortion and that the woman has the right to view the ultrasound prior to the abortion; (6) she has a right to view a state-prepared video; (7) she is free to withdraw or withhold consent without loss of any state or federally funded benefits; and (8) the name of the physician who will provide the abortion, in writing or a business card.

In addition, at least 24 hours prior to an abortion, the woman must be informed about and be given state-prepared materials by the attending physician, referring physician, or physician's agent, who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician, in person or by return-receipt certified mail.  If the materials are provided by mail, the woman must receive them again in person prior to the abortion.

The state-prepared materials must:  (1) provide a geographically indexed comprehensive list, including names and telephone numbers, of public and private agencies and services available to provide medical and financial assistance to a woman through pregnancy, prenatal care, upon childbirth, and while her child is dependent; (2) include a geographically indexed list of adoption agencies and state that the law permits adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care; (3) include "realistic, clear, objective, non-judgmental" materials to describe the probable anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including large color photographs, dimensions, and information on the possibility of survival; (4) describe abortion methods and the medical risks associated with each method and with carrying a pregnancy to term; (5) list the support obligations of the "father" of a child born alive; (6) state that a physician who provides abortion services without a woman's "informed" consent may be liable to her for civil damages; and (7) include the following statement: "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place him or her for adoption.  The State of Alabama strongly urges you to contact those agencies before making a final decision about abortion.  The law requires that your physician or his or her agent give you the opportunity to call agencies like these before you undergo an abortion."

In addition, prior to an abortion, the woman must be offered the opportunity to review a state-prepared videotape that must include much of the information provided in the state-prepared materials.

Ala. Code §§ 26-23A-1 to -13 (Enacted 2002).

Counseling Ban/Gag Rule

The Alabama Office of Women's Health may not advocate for or promote abortion.  The Office of Women's Health was established to educate the public, to establish priorities for programs, services, and resources, and to serve as a clearinghouse for information about data, services, and programs addressing women's health issues.  Ala. Code § 22-12D-1 (Enacted 2002).

Restrictions on Low-Income Women's Access to Abortion

Alabama prohibits public funding for abortion for women eligible for state medical assistance for general health care, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest.  Ala. Admin. Code r. 560-X-6-.09(1) (Enacted 1982; Last Amended 2003); Alabama Medicaid Agency, Alabama Medicaid Provider Manual, 28-40 (July 2006), at http://www.medicaid.alabama.gov/documents/Billing/5-G_Manuals/5G-2_Provider.Manual_July.2006/Jul06_28.pdf.

Restrictions on Young Women's Access to Abortion

Alabama law restricts young women's access to abortion.

Is the law enforceable?  Yes.  A state court held that this law is constitutional. Ex Parte Anonymous, 531 So. 2d 901 (Ala. 1988).

Who is considered a minor?  A young woman under the age of 18 who has never been married or emancipated by court order.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent on a form provided by the physician.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No, however, if the young woman's pregnancy "was caused by sexual intercourse with the minor's natural father, adoptive father or stepfather or legal guardian," written notice by certified mail to her mother is sufficient.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the physician determines that a "medical emergency exists that so compromises the health, safety or well being" of the young woman as to require an immediate abortion.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  A court upheld the constitutionality of this law as applied to a minor ward of the state who lacked a parent from whom she could obtain consent.  Ex Parte Anonymous, 531 So. 2d 901 (Ala. 1988).

Other information about the law:  The Alabama Attorney General has issued an opinion stating that this young women's access law applies to the use of mifepristone because the law defines abortion as including the use of a drug to terminate a pregnancy.  Ala. Op. Att'y Gen. No. 2001-072 (Jan. 18, 2001). Ala. Code §§ 26-21-1 to -8 (Enacted 1987).

Targeted Regulation of Abortion Providers (TRAP)

Alabama imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Alabama places medically unnecessary restrictions on where abortions may be performed.

Any health care facility that performs 30 or more abortion procedures per month during any two months of the calendar year, or that provides "advertising" that it performs abortions by some public means -- such as newspaper, telephone directory, magazine, or electronic media -- must obtain a license not required of other medical providers.  Ala. Admin. Code. r. 420-5-1-.01(2)(b), -.01(3), -.01(4).  This rule applies to the offices of individual doctors if they meet the minimum procedures or advertising requirements.  Tucker v. State Dept. of Public Health, 650 So. 2d 910 (Ala. Civ. App. 1994). Violations may result in criminal penalties for operating without a license.  Ala. Code § 22-21-33 (Enacted 1949; Last Amended 2001).

Each abortion or reproductive health center must have a medical director who is board eligible/certified in OB/GYN and have at least 12 months experience treating gynecological problems in a surgical environment.  Ala. Admin. Code. r. 420-5-1-.02(5)(c).

Every abortion provider must maintain ultrasound equipment and perform an ultrasound before an abortion.  Ala. Code § 26-23A-6 (Enacted 2002).

Restrictions on Who May Perform Abortions

Alabama prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state to practice medicine or osteopathy may perform an abortion.  Ala. Admin. Code r. 420-5-1-.01(2)(j), -.03(4)(a); Ala. Code § 26-23A-7 (Enacted 2002).