On Tuesday, voters in Alabama approved a personhood amendment that gives constitutional rights to fertilized eggs and fetuses.
Amendment 2 says that it is the policy of the state of Alabama “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life” and declares that there is no right to an abortion or funding for abortion under the Alabama Constitution.
That means if Roe v. Wade is overturned, Alabama is poised to criminalize abortion across the board—including in cases of rape, incest, or when the health of the pregnant person is at risk.
The author and proponent of the amendment, state Rep. Matt Fridy (R-Montevallo), told AL.com that the amendment is important because courts change.
“We don’t know from generation to generation what the composition of the Alabama Supreme Court is going to be,” Fridy said. “Things change quickly, and you can look at a lot of issues, even recently, to see significant change, judicial change, that’s come about much faster than anybody had ever anticipated.”
The significant judicial change that has come about much faster than anyone ever anticipated is one Justice Brett Kavanaugh—who, it is widely believed, will provide the fifth vote in the U.S. Supreme Court to overturn Roe.
Alabama already has an abortion ban on the books. Its existing law, which pre-dates Roe, punishes any person who induces or attempts to induce an abortion and subjects them to a fine and jail time. That law has a health exception, however, and likely does not go far enough for the anti-choice forces at work in Alabama—particularly the Alabama Supreme Court. The court has already slipped fetal personhood into several decisions, permitting policies not explicitly intended to ensnare pregnant people to nevertheless be used to prosecute and convict them. This, in conjunction with Amendment 2, paves the way for the legislature to enact a new, more restrictive, criminal abortion ban that goes beyond punishing providers to punish pregnant people themselves.
In 2013 in Ankrom v. Alabama, for example, the Alabama Supreme Court recognized a developing fetus as a “person” under the law when it held that the word “child” in the states child chemical endangerment statute applies to “unborn children” as well as to born children, and upheld the criminal convictions of two women who ingested chemical substances while pregnant. Although the term “child” was not defined in the statute, the court endorsed the Alabama Court of Criminal Appeals’ reasoning, which held that “‘the dictionary definition of the term ‘child’ explicitly includes an unborn person or fetus.’”
At the time, I wrote, “[t]he statute was enacted to protect children from injury resulting from exposure to toxic chemicals used to produce methamphetamines, not to punish drug-dependent women for choosing to carry their pregnancies to term despite their drug dependencies. In fact, the chemical-endangerment statute was not intended to address the behavior of pregnant women at all.”
But that didn’t seem to matter to the Alabama Supreme Court, which refused to overturn Hope Ankrom’s jail sentence. Similarly, in Hicks v. Alabama, the Alabama Supreme Court upheld the criminal conviction of Sarah Janie Hicks under that same statute.
More recently in Ex Parte Jessie Livell Phillips, the first capital case of its kind in Alabama, the court upheld a dual murder conviction of a man who killed his pregnant wife—reasoning that “Alabama recognizes an unborn baby as a life worthy of respect and protection,” and that “under the criminal laws of the State of Alabama, the value of the life of an unborn child is no less than the value of the lives of other persons.”
While Roe remains intact, federal law protecting pregnant people’s right to an abortion should trump Alabama law, which ignores those protections. (Thank you, Supremacy Clause!) So, in effect, Alabama’s amendment works as a trigger ban; as soon as Roe is reversed, Alabama’s policy of respecting “unborn life” would kick in. It could potentially criminalize abortion in all contexts but also ban certain forms of contraception and fertility treatments, like IVF.
In fact, prosecutors in Alabama could, technically, begin enforcing an abortion ban immediately. They don’t have to wait for the Supreme Court to reverse Roe. Prosecutors could begin charging abortion providers for performing abortions under the state’s pre-Roe ban, testing the willingness of state court judges to defy federal law and let those cases proceed. And although there is no direct law on the books (yet) to punish pregnant people for having them, this amendment opens the door for even more opportunities to target individuals for, say, reckless driving while pregnant. It all depends on how creative the prosecution is, and who the local judge is. That would surely set up an eventual fight in the Supreme Court over the continuing constitutionality of Roe.
Currently, only nine states affirmatively protect abortion rights and access in their state constitutions, and some state supreme courts in places like Alaska and Minnesota have issued decisions protecting abortion rights under their state constitutions also.
But Alabama’s isn’t one of them, and nor is it likely to be. In Ex Parte Jessie Livell Phillips, Justice Tom Parker wrote a concurrence in which he denounced Roe and urged the U.S. Supreme Court to “overrule the increasingly isolated exception to the rights of unborn children.”
“The United States Supreme Court’s declaration in Roe that, in the abortion context, unborn children are not ‘persons’ within the meaning of the Fourteenth Amendment to the United States Constitution stands in stark contrast to numerous determinations by the states that unborn children are, in fact, ‘persons’ in virtually all other contexts,” Parker wrote.
That’s true. The U.S. Supreme Court in Roe rejected the notion that a fetus is a person. But with the new conservative court featuring Kavanaugh, that could quickly change. And a fight over personhood in Alabama could precipitate that change.
“This constitutional amendment will serve as a mandate to pursue even more extreme restrictions and bans,” said Katie Glenn, Alabama state director for Planned Parenthood Southeast, according to AL.com. “This is just one more example of out-of-touch politicians trying to control women’s decisions and shame them for their most personal reproductive care decisions.”