Under the proposed Alabama bill, doctors would not be able to perform the procedure once a fetus is “in utero.” That version caught national attention because the bill that passed in the House allowed for a single exception, in cases involving a serious health risk “to the unborn child’s mother.” Cases of rape and incest were not exempt as they are in other states.
The abortion bills are not simple.
“In Georgia, you have to go down a rabbit hole and have to be a lawyer to understand what you’re reading,” said Bonyen Lee-Gilmore, director of Planned Parenthood state media campaigns.
Since Tuesday, fear has spread, confusing further reporting on the bills. Information has been misconstrued, criminal penalties have been misstated, and social media platforms have morphed into prime false-narrative territory.
And while there has been much attention on the issue of bans on early-stage abortions, women who miscarry are not going to be sent to prison for life.
So, let’s correct the record.
Abortion is not outlawed right now.
Neither Alabama’s proposed ban nor Georgia’s abortion law is currently in effect.
The Georgia law is scheduled to become enforceable in 2020, though “everyone in America expects it will be challenged in court before then,” said Mary Ziegler, professor at Florida State University College of Law and author of “After Roe: The Lost History of the Abortion Debate.” “Courts may block it from being enforced even in 2020.”
The bill introduced in Alabama was tabled on Thursday; because it was not passed, there is nothing to enforce. Other states, including Mississippi and Ohio, recently passed “heartbeat” laws. Neither state’s law is currently in effect either.
State Rep. Terri Collins (R), who sponsored the hotly debated Alabama bill, reiterated during an interview on Friday with The Post that abortions are currently allowed in the state. The bill must pass through the Senate and then the governor must sign it. It will take an additional six months after that to go into effect.
Several states have signed abortion legislation into law, but any law that has moved through the courts has ultimately been blocked or struck down, Zeigler said. Iowa, North Dakota and Kentucky have seen related laws blocked.
“Women who are panicked should know they have time,” said Alexa Kolbi-Molinas of the ACLU's Reproductive Freedom Project, and patients should not cancel their appointments.
Kolbi-Molinas was also confident that the ACLU would “be able to overturn these laws because they violate decades of Supreme Court laws.”
“We’ve been inundated with calls from patients who think abortions are already illegal,” said Staci Fox, president and CEO of Planned Parenthood Southeast. “They don’t understand that we’ll challenge this in court and it will likely be blocked.”
What worries her more, though, are the patients who aren’t calling. They need to know that “compassionate, nonjudgmental care is still legal.”
Women in Alabama and Georgia will not be criminalized
Unlike other states — which have passed limited abortion bills such as bans on the types of abortion procedure and gestational age of the fetus — Alabama’s proposed bill is an all-out ban on abortion.
“This bill is very simple,” said Collins. “It’s not about birth control or the morning after the pill. It’s about not allowing abortion once the woman is pregnant. The entire bill was designed to overturn [Roe v. Wade] and allow states to decide what is best for them.”
However, the bill explicitly states that women are exempt from criminal and civil liability, a tenet that Alabama lawmakers have repeatedly reinforced.
“In my bill, women would not under any circumstances face jail time if they got an abortion,” Collins said. Instead, the law targets doctors, who can be prosecuted for performing an abortion, a felony punishable by up to 99 years imprisonment.
Carol Sanger, professor at Columbia Law School, said such penalties on doctors were “just another way to make women frightened” and create “more disincentives for physicians and residents to take up this practice.”
The Georgia law is more complex.
Like Alabama, it explicitly states that doctors who perform abortions will be prosecuted. It is clear about those penalties. The bill is more vague about the prosecution (or non-prosecution) of women.
On Tuesday, Slate published an article with a not-entirely-accurate headline: “Georgia just criminalized abortion. Women who terminate their pregnancies would receive life in prison.”
It suggested that under the Georgia law, women who terminate their pregnancies would be prosecuted and sentenced to either life in prison or death.
“The news headlines and social media headlines that speculate about the bills’ unintended consequences are – at the very least – not productive. At most, they’re harmful,” Planned Parenthood’s Staci Fox told The Post on Friday.
HB 481 could not be used to successfully prosecute women, she argued. But if a woman had a miscarriage, she could be pulled into an investigation looking at whether someone performed an illegal abortion on her.
“You don’t want a woman to be forced to prove how she lost her baby,” said Sanger.
Georgia’s law does not unequivocally say that women are exempt, but legal experts point to other areas of Georgia’s penal code which have specific defenses for women, including those who miscarry.
A Roe v. Wade challenge is the goal
In Roe v. Wade, the Supreme Court decided that the right to privacy and liberty was broad enough to encompass a woman’s choice to continue her pregnancy with consulting with her doctor.
“In addition to giving women the right to choose whether to terminate a pregnant, the court also said that right is not absolute and there are certain rules that govern how long that right lasts,” Sanger explained. To do that, it looks to trimesters and viability, ignoring that reason a woman chose to have an abortion.
The recent spate of abortion bills that try to ban abortion early into pregnancy focus on duration — some states picked 16 weeks, others (like Georgia) are down to six. Alabama took it one step further. Under the new legislation, the state has said all it requires is pregnancy.
“By making the fetus a person, it’s an end run around Roe,” she said. “Once you determine a fetus is a person, you can’t kill.”
For Collins, the Alabama state representative, the bill’s true purpose is to trigger litigation that would force the U.S. Supreme Court to reconsider Roe v. Wade.
“My point on keeping an amendment about rape or incest out of this bill is that Roe v. Wade does not mention that issue and I want this bill to focus on the reasoning used in the Roe v. Wade decision, ‘Is the baby in the womb a person?’ Any amendment would contradict that point.”
Even in Alabama, it seems, there’s still a dispute over why a woman should be able to have an abortion.
“That’s what Roe is all about — no one should be able to decide why a woman should have an abortion,” Sanger said.
The Supreme Court decides which cases it wants to hear, and legal experts believe there are some things to suggest the court would not take one of the length-of-pregnancy ban cases.
The justices generally feel obligated to take cases in which lower courts disagree about the law or the court’s precedents. So far, no court has upheld one of the durational requirements, Sanger said.
The antiabortion legal and political community seems confident it has the votes to overrule Roe.
“They’re saying, ‘We dare you to take us to court because we think we’ll win,’” Collins said, but there are rules that govern when it’s appropriate for the Supreme Court to overturn a case.
Courts generally abide by a doctrine known as stare decisis, or respecting settled law. But the Supreme Court can revisit its precedents, which is what gives hope to abortion opponents.