This Attorney General Says He Can Prosecute People for Getting Abortions

Alabama, one of the strictest anti-abortion states in the country, is ready to take its anti-abortion stance even further: It could prosecute people who take pills to end their pregnancies, Alabama Attorney General Steve Marshall said Tuesday.

Abortion is currently only allowed in Alabama in cases of medical emergencies. But the Alabama abortion ban, like most abortion bans, penalizes people who perform abortions, not the people who get them. In fact, the law, known as the Human Life Protection Act, explicitly declares that people who get abortions cannot be held criminally or civilly liable. 

But that won’t stop the attorney general’s office, according to AL.com. Instead, Marshall’s office could use another Alabama law to target abortion patients—a child endangerment law that was originally designed to protect children from the chemicals left behind by meth labs.

“The Human Life Protection Act targets abortion providers, exempting women ‘upon whom an abortion is performed or attempted to be performed’ from liability under the law,” Marshall told AL.com in a statement. “It does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law—which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children.”

A 2013 ruling by the Alabama Supreme Court ruled that the “chemical-endangerment law” could apply to fetuses. “The decision of this court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law,” one of the judges in the 2013 case wrote in a concurring opinion.

By legally deeming fetuses children, the decision reinforced the so-called “personhood movement,” an anti-abortion movement that works to further the belief that fetuses deserve all the rights and protections granted to humans outside the womb. This belief could have widespread implications across all U.S. law; in Georgia, for example, a recent abortion ban now lets people claim fetuses on their taxes. 

In Alabama, officials have used the chemical-endangerment law to target more than 1,000 women who allegedly used drugs while pregnant, according to AL.com. Prosecutors have, in at least 20 cases, now used fetal personhood ideas to bring criminal charges over a miscarriage or stillbirth, the Marshall Project reported last year, along with the Washington Post, AL.com, and The Frontier.

Marshall’s declaration also arrives just a week after the FDA announced that it would let regular pharmacies dispense abortion-inducing pills. The move could expand access to the procedure in blue states, but it would not apply to states that already have abortion bans on the books.

“Promoting the remote prescription and administration of abortion pills endangers both women and unborn children,” Marshall told AL.com. “Elective abortion—including abortion pills—is illegal in Alabama. Nothing about the Justice Department’s guidance changes that. Anyone who remotely prescribes abortion pills in Alabama does so at their own peril: I will vigorously enforce Alabama law to protect unborn life.”

Mainstream anti-abortion activists have long shied away from penalizing abortion patients directly, although a growing fringe movement, who refer to themselves as abortion “abolitionists,” believe that patients should be punished like murderers. Experts have also warned that, if prosecutors want to punish people accused of aborting their own pregnancy, they will find a way to do it. Last year, the legal advocacy group If/When/How found that, between 2000 and 2020, law enforcement in 26 states investigated or arrested at least 61 people for allegedly aborting their own pregnancy or helping someone else do so.