According to Marshall, while the Human Life Protection Act does not allow for prosecution, an older law could still allow for the prosecution of women who terminate their pregnancies, including the state’s law against “chemical endangerment.” While this law was passed to punish those who exposed children to meth, it has also been used to prosecute numerous pregnant women accused of taking illicit drugs, including marijuana.
Similarly, because mifepristone and misoprostol are now illegal drugs in Alabama, the act will be used to prosecute women under the same laws that criminalize the use of recreational drugs during pregnancy.
“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 said in a statement to AL.com. “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.”
The announcement follows a rule change from the Food and Drug Administration (FDA) this month, which now allows retail pharmacies to dispense abortion pills directly to consumers in states where the procedure is legal for the first time.
Additionally, the Justice Department issued a legal opinion that the U.S. Postal Service may deliver abortion pills to people in states that have banned or restricted the procedure. The position is not a political one, though conservatives have attempted to make it one. The opinion hinges on an evaluation of an existing rule from 1873, Section 1461 of the Comstock Act. The Washington Post explains:
The opinion notes that the two pills commonly used to perform abortions, mifepristone and misoprostol, also can be used in other ways, such as managing miscarriages or treating gastric ulcers. When ordered by mail, the intended recipient does not have to say how the pills will be used. Because of that, the Justice Department concluded, neither the sender nor postal workers are violating the Comstock Act by sending or delivering abortion pills in a state where the drugs cannot legally be used to terminate pregnancies in certain instances.
Of course, Alabama noted that this would not be allowed in the state.
In response to the attorney general’s statement and to the state potentially using a child endangerment law to go after those who seek medication abortions, Attorneys with Pregnancy Justice—a legal organization that represents pregnant people—issued a statement:
“The Alabama legislature made clear its opposition to any such prosecution when it explicitly exempted patients from criminal liability under its abortion ban,” Emma Roth, a staff attorney at Pregnancy Justice, told AL.com. “Yet Alabama prosecutors and courts have shown a willingness to disregard legislative intent time and again in their crusade to criminalize pregnant women. Pregnancy Justice stands ready to challenge any attempt to expand the chemical endangerment statute to criminalize the use of abortion medication.”
Since the announcement that pharmacies will be permitted to dispense abortion pills, anti-abortion advocates have organized demonstrations outside of CVS and Walgreens to take place in February, Politico reported. Their goal is to make people uncomfortable entering drugstores to seek medical assistance—a tactic used previously to deter people from visiting abortion and other reproductive health care clinics.