Alabama’s Total Abortion Ban and the Red Flag You Missed (Updated)

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Commentary Abortion

Alabama’s Total Abortion Ban and the Red Flag You Missed (Updated)

Grace E. Howard & Meghan Eagen-Torkko

Six years ago, pregnant people were the canaries in the coal mines of the erosion of civil rights, but it was a warning too many people missed.

UPDATE, October 29, 2019, 11:45 a.m.: A federal judge on Tuesday issued a preliminary injunction against Alabama’s near-total abortion ban. Attorneys from the state are expected to appeal. 

On Wednesday afternoon, Alabama Gov. Kay Ivey (R) signed the most restrictive abortion law in the United States—a total ban on abortion at any time in the pregnancy, with an exception for risk to the pregnant person’s life, but no exception in cases of rape or incest. The law turns abortion into a class A felony, punishable by up to 99 years in prison.

Many decry this legal development as a dangerous and unprecedented step to curtail reproductive rights in a post-Roe era. For us—a political scientist who studies reproductive law, and a nurse clinician-researcher specializing in reproductive care—it seems like a natural next step.

In 2006, Alabama passed a law creating a new crime—chemical endangerment of a minor. This law was meant to protect children from exposure to drugs, drug paraphernalia, or drug manufacturing. Though nowhere in this law (or anywhere else in the Alabama criminal code) were fetuses defined as potential victims of crime, after it went into effect, prosecutors around the state started using it to charge pregnant people who tested positive for drugs. If someone lost a pregnancy and tested positive for a controlled substance, they would be charged with a class A felony.

Roe has collapsed in Texas, and that's just the beginning.

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In 2013, the Alabama Supreme Court heard an appeal of these charges and decided that, from the moment of conception, pregnant people could be held legally accountable for endangering their pregnancies with potentially hazardous substances. Knowledge of the pregnancy was irrelevant. Essentially, with a single case, the Alabama Supreme Court introduced the “personhood” of fertilized eggs, embryos, and fetuses into the criminal code. As Grace found in her doctoral research, hundreds of women have been charged with this crime—most of them low-income.

Today we are, rightfully, seeing an outcry of fear and disgust over the new restrictive abortion law. This law will place pregnant people in Alabama at risk. It is not based in science, but rather in a desire to create a case that will overturn Roe v. Wade.

This is a harmful political decision on the part of the legislature, and the response from people across the country protesting it is reasonable. However, we did not see this reaction in 2013, though the stakes were arguably similar. Pregnant women were made an exception, being held uniquely legally accountable for things that other people are not punished for. This is true of drug use (not possession, sales, manufacture, but simple use) and soon, it may be true of abortion as well.

Then, as now, pregnant people were the canaries in the coal mines of the erosion of civil rights, but it was a warning too many people missed. The reproductive justice framework, developed by Black women organizing for reproductive health and social justice, has demanded the centering of marginalized people and a more expansive approach to our understanding of reproductive health matters for 25 years. Have you heard the call?

We already know what this exceptionalism looks like. People avoid health-care providers and keep secret their important health information out of fear because health-care providers have been turned into detectives. People flee the state to access care. Or people bleed and leak milk through their paper gowns in the suicide watch unit of the local jail.

We know what this looks like not only because of what has been documented following the 2013 legal decision but because this was nearly every state before Roe v. Wade.

We missed the warning of 2013. We are drawing these parallels out not because we wish to shame people for not seeing what has been coming, but because we believe they present vitally important lessons as we move forward.

Your respectability will not protect you. When lawmakers deny the rights of any pregnant people, they deny the rights of all pregnant people or potentially pregnant people.

It is easy to write off the criminal prosecution of pregnant people who used drugs during their pregnancies as the legitimate punishment of those who you might think of as irresponsible or unloving—people who, you might think, had no business being pregnant in the first place. Maybe that’s why more people didn’t start waving their red flags when Alabama installed a kind of fetal personhood in its criminal code six years ago. “Those people are not like me. Maybe they deserve to be punished.”

Maybe you didn’t realize that they were coming for you too. For your daughter. For your friends. For your colleagues and baby sitters and nurses and teachers and neighbors.

Under Alabama’s new law, those distinctions become lost. We are they. They are us.

We must never again allow these kinds of targeted laws to divide us or to divide the personhood of pregnant people. Avoiding pregnancy, seeking pregnancy, terminating pregnancy, continuing pregnancy, and giving birth—we are all in this together. Let’s start acting like it.