Alabama House Democratic leader asks AG Marshall for clarity on abortion ban

By Mike Cason

Alabama House Minority Leader Anthony Daniels

Alabama House Minority Leader Anthony Daniels released a letter to Attorney General Steve Marshall asking for clarification on parts of Alabama’s abortion ban, saying that uncertainties about the law could have a chilling effect on the willingness of doctors to perform medically necessary procedures.

Rep. Daniels, D-Huntsville, wrote the letter to Marshall on Friday as a follow up to his request for Gov. Kay Ivey to call a special session to consider amendments to the law. Ivey, a supporter of the abortion ban, said she would not call a special session.

“Without the type of clear and detailed legal guidance that I am requesting, doctors have recently expressed grave uncertainty regarding this law and have indicated that they may not treat certain types of patients due to possible criminal liability or that they may delay certain types of maternal care to ensure compliance with the law,” Daniels said in a press release. “This matter is of great urgency as mothers may be unnecessarily denied care as doctors seek legal guidance.”

Mike Lewis, spokesman for Marshall, said the attorney general had no comment on the request.

Daniels’ letter to Marshall is attached to the end of this article.

Mark Jackson, executive director of the Medical Association of the State of Alabama, said doctors do have questions about the law. Jackson said the association was not involved in Daniels’ letter to Marshall.

“We certainly have questions as you might expect, just questions of uncertainty and gray areas as a result of the decision,” Jackson said. “We’re still gathering. We’re still getting feedback from our members. Every day there’s a different question that comes up so we’re just trying to digest it all right now and then figure out what needs to be done at some point in time, if anything. And that decision has not been made, by any means.”

The association sent out a question-and-answer document to its members addressing some questions about the new law. That is attached to the end of this article.

The Legislature passed the Human Life Protection Act in 2019, making it a felony punishable by up to 99 years in prison for a doctor to perform an abortion at any stage of pregnancy except to protect the mother from a serious health risk. The law was blocked by a federal court. But when the U.S. Supreme Court overturned Roe v. Wade in June, the Alabama law came into effect, making abortion illegal in the state.

Daniels’ letter seeks clarification in several areas. The law allows abortions to terminate an ectopic pregnancy, which happens when the fetus is developing outside the main cavity of the uterus. The law also allows abortion if the fetus has a lethal anomaly, meaning the child will be stillborn or die soon after birth. Daniels’ letter lists nine specific medical diagnoses that could qualify as exceptions to the ban but are not mentioned in the law.

Daniels asked for clarity for the exception allowing abortions in the case of a serious health risk for the mother. He noted that decisions to perform an abortion for that reason require concurrence by a second doctor within 180 days of the procedure.

“What process is in place to medically and legally review the diagnosis and prognosis of the two doctors, especially in an instance in which their medical opinions may not agree or they differ in their perspective in describing short and long-term prognosis?” Daniels asked in the letter. “In cases that require ‘reasonable judgment,’ what is the specific criteria or guidance that a medical professional should follow to ensure legal compliance? Absent clear guidance regarding that, it appears as if such decisions will be extremely subjective – reinforcing the chilling effect that I referenced earlier.”

Jackson said he did not know yet whether the law could have a chilling effect but said it possibly could.

“I don’t know that it’s stopped anything from happening yet but I think that’s always a potential down the road as things become either more confusing or more clear,” Jackson said. “I think that is always a potential consequence, but I don’t know that we’re there yet.”

The Medical Association of the State of Alabama’s memo to members responding to questions about the abortion law:

Question: Is in vitro fertilization (IVF) affected by the Court’s ruling?

Answer: No. The Alabama Human Life Protection Act defines and “unborn child” as “in utero” so its enforcement should not apply to the in vitro fertilization process

Question: Are exceptions for rape and incest allowed?

Answer: No. There are no exceptions in the Act related to the circumstances that led to the pregnancy

Question: Is the use of contraceptive medications such as Plan B allowed?

Answer: Yes. The use of contraceptive medications that are designed to prevent fertilization or the attachment to the uterus are not prohibited.

Question: How are drugs like RU-486 affected by Alabama’s law?

Answer: The criminal penalties in the Human Life Protection Act apply to those who perform or attempt to perform abortions. Therefore, physicians who prescribe or distribute drugs like RU-486 with the intent to induce or cause an abortion risk criminal penalties associated with the law.

Question: What is considered a medical emergency, where abortion is not prohibited?

Answer: If in the physician’s judgment, a pregnancy should be terminated to avoid a serious health risk to the pregnant woman, this meets the definition of medical emergency and abortion is not prohibited. Serious health risk is defined as a condition that could lead to the pregnant woman’s death or substantial physical impairment to a major bodily function. An emotional condition or mental illness is not included in the definition of serious health risk unless confirmed by a psychiatrist that the condition or mental illness might lead the pregnant woman to harm herself or her unborn child as defined in the Act.

Question: How are D&C procedures for missed abortions treated under Alabama law?

(A missed abortion is a miscarriage that leaves the placenta and embryonic tissue – but not a viable fetus – in the uterus.)

Answer: Alabama law defines abortion to require the intent to terminate a pregnancy that “will with reasonable likelihood cause the death of the unborn child.” A D&C procedure following fetal demise would not cause the death of a fetus, so it would not fall under the definition of “abortion” and would not be prohibited.

Question: Are there criminal penalties for assisting a pregnant woman to get an abortion where it is legal, e.g, referral, transportation, etc.?

Answer: The text of Alabama’s law currently only provides for criminal penalties for performing an abortion (Class A felony), and attempting to perform an abortion (Class C felony). We will report any further guidance or interpretation from the State on this issue.

Question: Is the termination of a pregnancy with detection or diagnosis of a condition likely to cause miscarriage or death shortly after birth considered an abortion, and therefore, prohibited?

Answer: No, the Human Life Protection Act excludes from the definition of abortion the termination of a pregnancy when the unborn child has a lethal anomaly. The Act further defines “lethal anomaly” as “a condition from which an unborn child would die after birth or shortly thereafter or be stillborn.”

Question: If a pregnant woman suffers a miscarriage during or after undergoing a test such as amniocentesis or receiving other treatment, is that considered an abortion?

Answer: No, Alabama’s definition of abortion requires the intent to terminate a pregnancy that “will with reasonable likelihood cause the death of an unborn child.”

Question: If a pregnant woman suffers an ectopic pregnancy, is that considered an abortion?

Answer: The Human Life Protection Act exempts from the definition of abortion the termination of ectopic pregnancies, including implantation in the corner of the uterus, and pregnancies where the fetus has been diagnosed with a lethal anomaly, i.e., likely to be stillborn. Therefore, the termination of ectopic pregnancies and pregnancies with a diagnosis of lethal anomaly are not considered abortions.