Fetal Viability and the Alabama Human Life Protection Act

Fetal Viability and the Alabama Human Life Protection Act

Legal Sidebari

Fetal Viability and the Alabama Human Life
Protection Act
May 16, 2019
Alabama’s governor, Kay Ivey, recently signed the Alabama Human Life Protection Act (AHLPA), a
measure that prohibits the performance or attempted performance of most abortions in the state. The new
law is scheduled to take effect in six months. Unlike other state laws that restrict abortions once a fetus
reaches a specified gestational age, the AHLPA prohibits the procedure for “an unborn child in utero at
any stage of development.” Gov. Ivey has described the new law as “a powerful testament to Alabamians’
deeply held belief that every life is precious.” At the same time, however, she acknowledges that the law
may not be enforceable in light of the U.S. Supreme Court’s abortion jurisprudence. In fact, federal
appellate courts have invalidated several state laws that attempted to prohibit the procedure prior to fetal
viability, the point in a fetus’s development when it is able to live outside the mother’s womb, with or
without artificial assistance. In Roe v. Wade, the Court’s 1973 abortion decision, viability was identified
as “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” In light of
Roe and the Court’s subsequent abortion decisions, it seems that the AHLPA might have difficulty
surviving a constitutional challenge under existing precedents. Nevertheless, Gov. Ivey and the AHLPA’s
sponsors appear to anticipate such a challenge, maintaining that “it is time, once again, for the U.S.
Supreme Court to revisit this important matter[.]”
Alabama Human Life Protection Act
Under the AHLPA , the performance of an abortion is a Class A felony, which carries a prison sentence of
not less than 10 years, but no more than 99 years. The attempted performance of an abortion is a Class C
felony, which carries a prison sentence of not less than one year and one day, but no more than 10 years.
Individuals convicted for violations of the AHLPA may also be subject to fines not to exceed $60,000 for
the performance of an abortion, and not to exceed $15,000 for the attempted performance of an abortion.
The AHLPA includes an exception for abortions when “[i]n 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.” The law indicates that such a condition can include, under specified circumstances, a diagnosed
serious mental illness if there is a reasonable medical determination that the woman will engage in
conduct that could result in her death or the death of the fetus.
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Restricting Abortion before Fetal Viability
Since Roe, the Supreme Court has continued to recognize viability as the earliest point at which a state’s
interest in fetal life may justify a ban on abortions. For example, in Planned Parenthood of Southeastern
Pennsylvania v. Casey, its 1992 decision upholding Roe’s essential holding, the Court maintained that a
state “may not prohibit any woman from making the ultimate decision to terminate her pregnancy before
viability.” The Court later recognized this principle as controlling in Gonzales v. Carhart, its 2007
decision involving the Partial-Birth Abortion Ban Act.
In light of the Court’s decisions, two federal appellate courts invalidated laws from Arizona, Arkansas,
and Idaho that sought to prohibit the performance of an abortion at gestational ages younger than 24
weeks. In Isaacson v. Horne, the U.S. Court of Appeals for the Ninth Circuit concluded that Arizona’s 20-
week abortion restriction was unconstitutional “under an unbroken stream of Supreme Court authority,
beginning with Roe and ending with Gonzales.” The Ninth Circuit reversed a district court decision that
upheld the state law, in part, on the grounds that it regulated rather than prohibited abortions at 20 weeks.
The district court maintained that the Arizona law simply imposed a time limitation on when a woman
could seek an abortion and was not a complete ban on pre-viability abortions because of an exception for
medical emergencies.
Citing the Supreme Court’s abortion decisions, however, the Ninth Circuit emphasized that a state may
not prohibit the performance of abortion prior to viability. Unlike the district court, the Ninth Circuit
contended: “[t]here is no . . . doubt that the twenty-week law operates as a ban on pre-viability
abortion[.]” Further, the appellate court indicated that the presence of a medical emergency exception did
not make an otherwise impermissible restriction constitutional.
In McCormack v. Herzog, the Ninth Circuit considered the constitutionality of Idaho’s Pain-Capable
Unborn Child Protection Act, which prohibited abortions once the fetus reached a gestational age of 20
weeks. The Idaho ban applied regardless of whether the fetus attained viability. Although the court
acknowledged that a state could act to protect the health and safety of a woman seeking an abortion, it
maintained that the state could not restrict her ability to obtain the procedure before viability:
[T]he broader effect of the statute is a categorical ban on all actions between twenty weeks
gestational age and viability. This is directly contrary to the Court’s central holding in Casey that a
woman has the right to “choose to have an abortion before viability and to obtain it without undue
interference from the State.”
In Edwards v. Beck, the Eighth Circuit examined the Arkansas Human Heartbeat Protection Act, which
prohibited abortions once the fetus had a detectable heartbeat and was at least a gestational age of 12
weeks. The Arkansas State Medical Board attempted to defend the law by characterizing the restriction as
a regulation and not a ban on pre-viability abortions. The Board emphasized that abortions remained
available for the first 12 weeks of a woman’s pregnancy, and that the law included exceptions to protect
the mother’s life and for medical emergencies. Like the Ninth Circuit, however, the Eighth Circuit viewed
the law as an impermissible ban on abortions prior to viability. The Eighth Circuit maintained that it was
bound by Casey and the assumption of Casey’s “principles” in Gonzales, noting that “[b]y banning
abortions after 12 weeks’ gestation, the Act prohibits women from making the ultimate decision to
terminate a pregnancy at a point before viability.”
Like the state laws invalidated by the Eighth and Ninth Circuits, the AHLPA restricts the
performance of abortions prior to fetal viability. The Supreme Court’s abortion jurisprudence and
the Eighth and Ninth Circuit decisions might arguably suggest a similar outcome for the
Alabama law. Critics of the AHLPA have indicated that they will challenge the new law. If such a
challenge were ultimately considered by the Supreme Court, it may be possible that the Court
could revisit its position on viability, something the law’s sponsors said they hoped for when the

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measure was introduced. Notably, the Court declined to review Isaacson in 2014 and Edwards
in 2016. However, with two new Justices appointed after those cases were decided, a similar
denial of certiorari may not be guaranteed.

Author Information

Jon O. Shimabukuro

Legislative Attorney

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