A Review of Alabama’s Human Life Protection Act

UPDATE MAY 24, 2019: Lawsuit filed to block abortion ban. A federal lawsuit filed Friday, May 24, asks a judge to block Alabama’s law that outlaws almost all abortions, the most far-reaching attempt by a conservative state to seek new restrictions on the procedure. The American Civil Liberties Union and Planned Parenthood filed the lawsuit on behalf of abortion providers seeking to overturn the Alabama law that would make performing an abortion at any stage of pregnancy a felony punishable by up to 99 years or life in prison for the abortion provider. The only exception would be when the woman’s health is at serious risk. The law is set to take effect in November unless blocked by a judge.

Rep. Terri Collins, the bill’s sponsor, said this: “We not only expected a challenge to Alabama’s pro-life law from ultra-liberal groups like Planned Parenthood and the ACLU, we actually invited it. Our intent from the day this bill was drafted was to use it as a vehicle to challenge the constitutional abomination known as Roe v. Wade.”

MAY 17, 2019: The Human Life Protection Act, or House Bill 314, was enacted into law on May 15, 2019, (the “Act”). It is important to understand that this new law is likely to be legally challenged and unlikely to go into effect anytime soon. That being said, until a court stops the enforcement, physicians should be aware of what the Act prohibits:

• The Act makes it a Class A felony (a penalty of 10 years up to 99 years in prison) for a physician to perform an abortion, or a Class C felony (a penalty of 1 year to 10 years in prison) for a physician to attempt to perform an abortion.
• The Act contains limited exceptions for physicians to practice medicine. It is important to note that it is the physician who may be prosecuted under the Act and not the mother of the child.

What is an abortion under the Act?

The Act is centered upon the legal definition of what is a prohibited abortion. The Act requires that in order for it to be an abortion, the woman must be known to be pregnant, and there must be an intent to terminate that pregnancy. The Act has no requirement for “viability” of the fetus for its application. The definition of abortion used in the Act provides that an abortion is the use or prescription of any instrument, medicine, drug, or other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. “Unborn child” is defined broadly by the Act as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.” In other words, this Act protects against any abortive procedures upon any unborn child regardless of viability. If a woman is three days pregnant and knows she is pregnant, it would be a prohibited abortion for a physician to terminate that pregnancy.

What is not an abortion under the Act?

If it is not an abortion, it is not prohibited. Specifically excluded from the definition of abortion are activities done with intent to save the life or preserve the health of an unborn child, remove a dead unborn child, 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. These activities are not an abortion, and therefore not illegal. Abortion does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy, nor does it include the procedure or act to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.

An ectopic pregnancy is defined as a pregnancy resulting from either a fertilized egg that has implanted or attached outside the uterus or a fertilized egg implanted inside the cornu of the uterus. A lethal anomaly is defined as a condition from which an unborn child would die after birth or shortly thereafter or be stillborn. Both pregnancies resulting from an ectopic pregnancy and pregnancies in which the unborn child has a lethal anomaly are not included in the definition of an abortion, and therefore, procedures involving either are not prohibited under the Act.

What is a serious health risk to the mother?

As provided above, an act performed by a physician in order to avoid a serious health risk to the unborn child’s mother is not an abortion and not illegal. A serious health risk to the mother may be based upon either

1. a physical condition or
2. an emotional or a mental illness, both of which are discussed below.

A serious health risk to the unborn child’s mother, is defined as:

In reasonable medical judgment, the child’s mother has 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. This term does not include a condition based on a claim that the woman is suffering from an emotional condition or a mental illness which will cause her to engage in conduct that intends to result in her death or the death of her unborn child. However, the condition may exist if a second physician who is licensed in Alabama as a psychiatrist, with a minimum of three years of clinical experience, examines the woman and documents that the woman has a diagnosed serious mental illness and because of it, there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child. If the mental health diagnosis and likelihood of conduct is confirmed as provided in this act, and it is determined that a termination of her pregnancy is medically necessary to avoid the conduct, the termination may be performed and shall be only performed by a physician licensed in Alabama in a hospital as defined in the Alabama Administrative Code and to which he or she has admitting privileges.

Under the Act can a physical condition of the mother be a serious health risk to the unborn child’s mother?

Yes, a physical condition may be a serious health risk to the unborn child’s mother when the mother is facing death or a serious risk of physical impairment of a major bodily function. Except in cases of a medical emergency, a physician who determines that a woman has a serious health risk must confirm his or her determination in writing by a second physician. The second physician attesting to such is immune from any civil or criminal liability. A physician has 180 days in order to obtain this determination by a second physician. Therefore, a procedure to terminate a pregnancy on a woman who has a physical condition that qualifies as a serious health risk will not be considered an abortion, and thus not prohibited by the Act.

Under the Act can a mental or emotional condition of the mother be a serious health risk to the unborn child’s mother?

Generally emotional conditions and mental illnesses may not qualify for this condition, and therefore neither will be part of an exclusion to the definition of abortion. In other words, generally a procedure to terminate the pregnancy of a woman with an emotional condition or mental health issue, with nothing else, will still be a prohibited abortion. However, if a qualified psychiatrist documents that the woman has a serious mental illness and in his or her medical judgment that she will engage in conduct that will result in her death or the death of her child, then a procedure to terminate the pregnancy may be performed in a hospital. Saying it differently, there is a limited mechanism under the Act allowing for a physician to terminate a suicidal patient’s pregnancy, or the pregnancy of a woman who will engage in conduct that will cause the death of the fetus, when a psychiatrist confirms and documents

1. the mental health diagnosis,
2. the likelihood of the conduct, and
3. the medical necessity of the termination of the pregnancy.

When does this Act go into effect?

The Act shall become effective six months after it was approved by the Governor, or November 15, 2019. However, opponents have pledged to file a lawsuit to enjoin (stop) any enforcement of the Act, until the Court can make a final determination on the constitutionality of the new law.

What happens if this Act is enjoined?

The Act has a specific provision recognizing that all existing laws shall remain in effect while the new Act is being challenged in the Courts.