An Alabama lawmaker wants to repeal the state’s ban on abortion that was in effect before Roe v. Wade.
The law dates to the 1800s and carried a misdemeanor penalty for using any drug, instrument, or other means to induce an abortion unless it was to preserve the life or health of the woman.
Like bans on abortion in all states, the law was nullified by the U.S. Supreme Court’s Roe v. Wade decision in 1973, which said women had a constitutional right to abortions.
In June 2022, when the Supreme Court reversed course and overturned Roe v. Wade, allowing states to again make abortion illegal, Alabama had a new ban in place. The Legislature passed the Alabama Human Life Protection Act in 2019 in anticipation of Roe being overturned. It took effect shortly after that happened, nullifying the old law. It also carried a much stricter penalty, making performing an abortion a felony that could result in a life sentence.
But that old law remains -- Code of Alabama 13A-13-7. Rep. Chris England, D-Tuscaloosa, has filed a bill in advance of the upcoming legislative session that would repeal it.
Why bother to pass legislation to repeal an outdated law that is not in effect?
England said if the Human Life Protection Act was ever blocked by a court or for some reason was no longer the state’s operative abortion law, he believes the old law could open a pathway to prosecuting a woman for having an abortion. The new law, the Human Life Protection Act, specifically says the woman undergoing an abortion cannot be held criminally or civilly liable. The criminal penalty applies to the doctor who performs the abortion unless it is to protect the woman from a serious health risk.
“From everything that I’m hearing from folks on both sides of this issue, from our attorney general on down, the intent was never to prosecute a woman,” said England, who is a lawyer. “So to make sure that doesn’t happen in Alabama, in the event something happens to the Human Life Protection Act, I think we should remove that misdemeanor from the books to make sure that what everyone is saying about prosecuting a woman doesn’t happen in Alabama.”
England has filed his bill in advance of the legislative session, which starts March 7.
Eric Johnston, the attorney who wrote the Human Life Protection Act, said he opposes repealing the old law, even though he does not expect it to ever be operative again.
“I don’t think the Human Life Protection Act is going to be enjoined,” said Johnston, who is president of the Alabama Pro Life Coalition. “I think it’s secure. And if it was, then that old law is still there. That law came from the 1800s. There’s no point in getting rid of that.”
Johnston said the old law is not well written but said it could be a fallback position in the unlikely event that the Human Life Protection Act is blocked by a court.
“There’s no point in giving that up,” Johnston said.
The old law, Code of Alabama 13A-13-7, says:
Any person who willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose, shall on conviction be fined not less than $100.00 nor more than $1,000.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months.
Under the Human Life Protection Act, performing an abortion is a Class A felony, carrying a prison sentence of 10 to 99 years.
Related: When abortion was a risky misdemeanor: Alabama before Roe v. Wade