Abortion Providers: Restrictions
Alabama imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Alabama places medically unnecessary restrictions on where abortion services may be provided.
Any health-care facility that provides 30 or more abortion procedures per month during any two months of the calendar year, or that provides “advertising” that it provides abortion care by some public means such as newspaper, telephone directory, magazine, or electronic media must comply with a uniquely imposed licensure scheme not required of other medical providers. Ala. Admin. Code. r. 420-5-1-.01(2)(b), -.01(3), -.01(4). This rule also applies to the offices of individual doctors if they meet the minimum procedures quota or advertising requirements. Tucker v. State Dept. of Public Health, 650 So. 2d 910 (Ala. Civ. App. 1994). Violations may result in criminal penalties. Ala. Code § 22-21-33 (Enacted 1949; Last Amended 2008). The licensing requirement has the following conditions:
Each abortion provider shall be classified as “ambulatory health care occupancy” – a type of ambulatory surgical center. This classification includes certain physical-plant requirements, such as submission of architectural drawings and plans, as well as sprinkler system plans and other materials necessary to show compliance. Ala. Code § 26-23E-9 (Enacted 2013). Additionally, an abortion clinic may not get a new license or renew an existing license if the facility is within 2,000 feet of a K-8 public school. This law was intended to close a particular clinic. S.B.205, Reg. Sess. (Ala. 2016).
Abortion providers must have admitting and staff privileges at an acute care hospital in the same “standard metropolitan statistical area” that permits the physician to perform procedures reasonably necessary to treat abortion-related complications. No exception is made for rural areas, and nothing in the statute requires a hospital to agree to such an arrangement. Ala. Admin. Code. r. 420-5-1-.03(6)(b). Ala. Code § 26-23E-4(c) (Enacted 2013).
This provision of the law has been blocked by a federal court. The U.S. District Court for the Middle District of Alabama, Northern Division issued a preliminary injunction after pro-choice activists challenged the law before it could go into effect. West Alabama Women’s Center v. Williamson Planned Parenthood Southeast, Inc. v. Bentley, 120 F.Supp.3d 1296, 2015 (M.D.Ala.).
Each abortion provider or reproductive-health center also must have a medical director who is a board-eligible or -certified OB/GYN despite the fact that there are numerous medical specialties that can safely provide and oversee abortion care 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 every procedure, regardless of whether the sonogram is medically appropriate or necessary. Ala. Code § 26-23A-6(b) (Enacted 2002).
Every abortion provider must remain on the premises during and after each procedure and until all patients are discharged. Each discharge order must be signed by the physician. Ala. Code § 26-23E-4(b) (Enacted 2013).
Restrictions on Who May Provide Abortion Services
Alabama prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed by the state to practice medicine or osteopathy may provide the procedure. Ala. Admin. Code r. 420-5-1-.01(2)(j), -.03(4)(a); Ala. Code § 26-23A-7 (Enacted 2002).
Abortion Bans Throughout Pregnancy: Procedure Ban
Alabama has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 provision 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 certain second-trimester abortion procedures and has no 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.
Abortion Bans Throughout Pregnancy: Ban by Week
Alabama outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy was the result of rape or incest. Ala. Code §§ 26-23B-1 to 26-23B-9 (Enacted 1975; Last Amended 2011).
Alabama’s law makes abortion after 20 weeks a felony, unless necessary to save a woman’s life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. Physicians in violation of the law would be guilty of a Class C felony which carries a one- to 10-year jail sentence and possibly a fine. In addition, the law allows the woman or the man involved in the pregnancy to bring a civil suit for damages against the physician. It also allows the woman, her parents, her husband, her siblings, her guardian, her other health-care providers, or the state attorney general to file for injunctive relief blocking the abortion provider from providing abortion care after 20 weeks in future instances. Ala. Code §§ 26-23B-1 to 26-23B-9 (Enacted 1975; Last Amended 2011).
Abortion Bans Throughout Pregnancy: Procedure Ban
Alabama outlaws the use of a D&E (dilation and evacuation) procedure unless it is necessary to save the woman’s life. The D&E procedure is the most commonly used method for second-trimester abortion. Its illegality would cause women to have to undergo more invasive and potentially more dangerous procedures. This law includes a narrow and inadequate exception to protect a woman’s health. Additionally, the law gives authority to bring a cause of action against a doctor to the state attorney general and any district or county attorney with jurisdiction. Further, this cause of action for civil damages may be brought on behalf of the father of the woman, the father of the pregnancy if he is married to the woman, and the woman’s parents or guardian if she is a minor. Ala. Code §§ 26-23G-1 to 26-23G-9 (S.B. 363, Reg. Sess., enacted 2016).
Litigators filed a supplemental complaint to a 2015 lawsuit challenging a state TRAP law, and a federal judge issued a preliminary injunction against both restrictions. West Alabama Women’s Center v. Williamson, 120 F.Supp.3d 1296, 2015 (M.D.Ala.).
Near-Total Abortion Ban
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 woman any drug or substance or employs other means to induce an abortion, unless 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).
Near-Total Abortion Ban
In 2019, Alabama passed an unconstitutional and unenforceable law which bans all abortion or attempts to perform an abortion in the state except in cases of lethal fetal anomaly or to prevent a woman’s death. The law defines "personhood" as "in utero at any stage of development, regardless of viability." Violations of this law are considered Class A felonies punishable by a sentence of up to 99 years in jail.*Ala. Code § 26-23H-1 – § 26-23H-8 (Enacted 2019).
*The law is currently enjoined while a lawsuit challenging the law proceeds. Robinson v. Marshall, No. 2:19-CV-365-MHT, 2019 WL 5556198 (M.D. Ala. Oct. 29, 2019).
Alabama’s post-viability restriction states that no abortion may be provided after viability unless two physicians certify in writing that it is necessary to preserve the woman’s life or to prevent "substantial and irreversible impairment of a major bodily function." The physician must use the method that provides the best opportunity for fetal survival unless it poses a significantly greater risk of the woman’s death or the "substantial and irreversible impairment of a major bodily function" than other available methods. A second physician must attend a post-viability abortion to provide medical attention to the fetus. Ala. Code §§ 26-22-1 to -5 (Enacted 1997).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. NARAL Pro-Choice America opposes Alabama’s post-viability restriction because the health exception is dangerously narrow.
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 48 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, Amended 2014, H.B.489, 2014 Gen. Assemb., Reg. Sess. (Ala. 2014)).
A court held the 2002 law constitutional. Summit Med. Ctr. of Ala., Inc. v. Riley, 274 F. Supp. 2d 1262 (M.D. Ala. July 25, 2003) (memorandum opinion and order).
Alabama requires a woman seeking an abortion to wait at least 48-hours between the time she receives biased-counseling materials and when she can get the procedure. Ala. Code §§ 26-23A-1 to -13 (Enacted 2002, Amended 2014, H.B.489, 2014 Gen. Assemb., Reg. Sess. (Ala. 2014)).
Insurance Coverage for Abortion
Prohibits Abortion Coverage in the Insurance Exchange
Does Alabama expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life, or if the pregnancy is the result of rape or incest. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the “option” to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Ala. Code § 26-23C-3 (Enacted 2012), 26-23C-4.
Abortion Coverage for Low-Income People
Restricts 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 2012); Alabama Medicaid Agency, Alabama Medicaid Provider Manual, 28-47 (July 2014).
Young People & 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 or legal guardian.
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. The consenting parent must provide proof that he/she is the young woman’s parent or legal guardian.
May the parental mandate be waived if a young woman is a victim of rape or incest? No, although the court shall not be required or permitted to contact the minor’s parent or legal guardian, if the minor’s parent or legal guardian is aware of the judicial- bypass proceeding, the parent or legal guardian shall be allowed to participate in the proceeding against the wishes of the young women.
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? Yes, a young woman must present proof of maturity and knowledge of abortion. Young women are allowed to receive abortion care from physicians only.
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 law applies to mifepristone because it 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, Amended 2014).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
Supports Low-Income Women’s Access to Contraception
Alabama provides increased access to reproductive-health-care services through a Section 1115 family-planning waiver. The waiver allows the state to cover family-planning services for women between the ages of 19 and 55 with incomes at or below 146 percent of the federal poverty level, who are not otherwise eligible for state and federal health-care programs. In addition, through the extension of this demonstration, Alabama is adding coverage to men age 21 with incomes up to 146 percent of the FPL for vasectomies. Enrollees must also be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) Alabama residents.
Beneficiaries of family-planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptive education and counseling; contraceptive supplies, devices, implants and prescriptions; office visits, consultation, examination, and medical treatment; laboratory examinations and tests; and HIV blood testing/sexually transmitted infection testing in conjunction with a family-planning encounter.
The waiver is set to expire on September 30, 2022.
Ala. Family Planning Demonstration Fact Sheet, 2012, at https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/al/al-family-planning-fs.pdf (last visited July 3, 2018); Alabama Plan First Demonstration Waiver, Project No. 11-W-00133/4, at http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/al/al-family-planning-ca.pdf.
No state measure.
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
ABORTION REFUSAL CLAUSE
Alabama allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals, including physicians, physician’s assistants, nurses, nurse’s aides, medical assistants, hospital employees, clinic employees, nursing home employees, pharmacists, researchers, medical or nursing school faculty, students, or employees, counselors, social workers, or any professional, paraprofessional, or any other person who furnishes or assists in the furnishing of health care services.
What does the refusal clause allow? Allows individuals to refuse to participate in an abortion. Participate is defined as performing, assisting in, referring for, admitting for purposes of providing, or participating in providing. In addition, no individual may be liable for refusing to participate in an abortion except when failure to do so would immediately endanger the life of a patient.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? Yes. In a life-threatening situation where no other health care provider is available or capable of providing or participating in an abortion, a health care provider shall provide and participate in the medical care until an alternate health care provider capable of providing or participating in the emergency medical care becomes available.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive-health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Has a court considered the constitutionality of this refusal clause? No
Ala. Code § xx (AL H.B. 95, Enacted 2017).
Counseling & Referral Bans
Counseling & Referral Ban
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).