Alabama legislators held public hearings Wednesday on four anti-choice bills, including one that would ban abortion as early as six weeks. The other bills would make it extremely difficult for minors to obtain abortions, make all women wait longer to get an abortion, and force women carrying fetuses with fatal anomalies to hear about perinatal hospice options that may not even exist in Alabama.
The “Fetal Heartbeat Act” would make it a felony for a physician to perform an abortion without first determining whether the fetus has a heartbeat, or to perform an abortion after a heartbeat is detected. There are exceptions for the life or health of the pregnant person, but not mental health, rape, or incest exceptions. Because a fetal heartbeat can be detected as early as six weeks, and because many women do not know they are pregnant that soon, this would amount to a near-total ban on abortion.
“It’s clearly unconstitutional,” Susan Watson, executive director of the American Civil Liberties Union (ACLU) Alabama, told RH Reality Check. Roe v. Wade prohibits bans on abortion before viability, which is considered today to be around 24 weeks. Only North Dakota has enacted a ban as early as Alabama is proposing, and that ban is not in effect while legal challenges proceed. New fetal heartbeat bills have also been introduced this year in Ohio, Kentucky, and Kansas.
The ACLU is already in court fighting new laws that threatened to close three of the state’s five clinics. By introducing an unconstitutional abortion ban, Watson said, “legislators are yet again exposing the state to long and costly litigation.”
Indeed, the bill was intended by its original author to be a direct court challenge to Roe v. Wade. Alabama Pro-Life Coalition Executive Director Eric Johnston, who drafted all four of the anti-choice bills, told the Montgomery Advertiser that the bill’s intent is to seek to change the definition of “viability” from the time the fetus can survive outside the womb, to the time when a heartbeat is detected. “The ultimate purpose is to get it tested in court,” Johnston said.
Another extreme bill would require a minor seeking an abortion to provide a certified birth certificate and a notarized consent form signed by her parents—who must also provide identification—in the presence of the abortion provider. The state already requires minors to get parental consent or an order from a judge before getting an abortion. If a minor wishes to use the judicial bypass process (some teens may need to avoid telling their parents about an abortion if a parent is abusive or the teen does not have a relationship with them), she must provide evidence of her maturity and understanding of abortion. But she cannot use the fact that she navigated the legal system as evidence of maturity. To get judicial bypass, she also must explain why she did not or could not tell her parents, and she must show that she has been counseled by a “qualified person” on alternatives to abortion.
“This bill is particularly troubling,” said Watson. “Judicial bypass is already a cumbersome procedure here in Alabama, and this is just making it nigh unto impossible.” And requiring a certified birth certificate, Watson said, could force the pregnant minor to wait at least another week if she only has a hospital copy.
“These types of restrictions will be more burdensome on poorer women and immigrant women, simply because their life circumstances may make it difficult to access requisite documents and identification, and be able to be in the clinic to get sign the consent form and then get it notarized,” Elizabeth Nash, state issues manager for the Guttmacher Institute, told RH Reality Check over email.
Moreover, the bill eliminates requirements that the minor’s identity will remain confidential. “We know that minors hold confidential health care very dearly and without such protections they are less likely to see medical treatment,” Nash said.
The bill also allows the state to appoint a lawyer for the fetus as well as the minor, which Watson called “unusual.”
Also alarming pro-choice advocates is a bill that would prohibit abortions in cases when a fetus has fatal anomalies unless a woman is first informed of the option to use perinatal hospice services as an alternative to abortion. Perinatal hospice provides “supportive care” for women who choose to continue a pregnancy with fatal anomalies rather than terminate it. However, Brooke Anderson, a spokesperson at the ACLU of Alabama, told RH Reality Check that she found no evidence of perinatal hospice services offered anywhere in Alabama, and that the bill’s sponsor, Kurt Wallace (R-Maplesville), admitted as much during the bill’s public hearing.
“Punishing women who are already in a very difficult situation with a complicated pregnancy by forcing them to hear about this hospice option, and implying that they should carry to term when a baby is stillborn or will die right at birth, is just unconscionable,” Nora Spencer, vice president of external affairs at Planned Parenthood of the Southeast, told RH Reality Check.
The hospice bill also requires this “informed consent” to take place 48 hours before a procedure.
Alabama’s current law requires “informed consent” materials to be provided to women seeking an abortion 24 hours in advance of the procedure, but another bill would extend this period to 48 hours for all women.
“Forcing a woman to wait even longer to receive medical care does nothing to protect her health,” Spencer said.
The introduction of these four extreme bills came as a surprise to some observers. Mia Raven, a local pro-choice activist, said she was “blindsided” by the new bills after expecting that the legislature would only deal with the health-care conscience bill passed by the house last month.
“We are under siege,” she said. “Alabama has been taken hostage by the GOP, period.”