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Post-Dobbs, Alabama providers examine abortion law

By MADDISON BOOTH and TODD STACY, Alabama Daily News

MONTGOMERY, Ala. – Alabama medical providers are examining what’s legal and what’s not under Alabama law in the wake of the U.S. Supreme Court’s overturning of Roe v. Wade.

That decision allowed a 2019 Alabama law that prohibits abortion in almost all circumstances to go into effect.

Attorney General Steve Marshall, who petitioned the federal court to lift its injunction on Alabama’s Human Life Protection Act, said at the time that, “Alabama’s law making elective abortions a felony is now enforceable. Anyone who takes an unborn life in violation of the law will be prosecuted, with penalties ranging from 10 to 99 years for abortion providers.”

Alabama’s three existing abortion clinics immediately ceased elective abortion procedures in the wake of the ruling and Marshall’s announcement. An independent clinic in Montgomery has since closed its doors, while Planned Parenthood clinics in Birmingham and Mobile continue to offer other services such as contraception and pregnancy testing.

Yet, there are questions remaining for other providers as to exactly how the law will be applied. What constitutes a risk to a mother’s life or a fatal fetal anomaly, two exceptions made in the law. Will medication abortion pills ordered online run afoul of the law?

Marshall’s office said it could not yet comment on potential legal guidance on some of the grayer areas. In the meantime, providers are seeking to figure it out for themselves.

“Due to the fact that Roe v. Wade was the law of the land for 50 years, it will take some time for everyone to sort out the implications of the Dobbs ruling,” said Mallory Camerio, communications director for the Medical Association of the State of Alabama.

MASA is sharing some guidelines for health of the mother abortion situations as well as other areas of reproductive care affected by the 2019 law.

The association said under the law, a medical emergency would be when “in the physician’s judgment, a pregnancy should be terminated to avoid a serious health risk to the pregnant woman.” Per the law, it further defined a serious health risk as “a condition that could lead to the pregnant woman’s death or substantial physical impairment to a major bodily function.”

An emotional condition or mental illness is only considered a serious health risk if a psychiatrist says that it may cause the woman to harm herself or the child, according to the association.

According to MASA, the law should have no effect on the use of contraceptives, in vitro fertilization or dilation and curettage procedures.

Alabama hospitals did not previously provide elective abortions, yet some could have to grapple with how the law applies to special circumstances.

“The University of Alabama at Birmingham Health System does provide care to women who present to our hospital in need of pregnancy-related care, including for women who present with miscarriage or pregnancy complications,” spokesman Bob Shepard told Alabama Daily News recently. “UAB will review changes to the law and take steps to ensure compliance as well as to ensure quality clinical care for our patients.”

There have been questions raised about the legality of certain abortion pills. According to recent Associated Press reporting, medication abortion is now the most common form chosen by women, accounting for 54% of all abortions nationwide as of 2020.

Yet, unlike the “morning after pill” considered to be contraception, prescription abortion pills are approved to terminate pregnancies up to ten weeks.

MASA stated that “physicians who prescribe or distribute drugs like RU-486 with the intent to induce or cause an abortion risk criminal penalties associated with the law.”

The criminal penalty of up to 99 years of jail time applies only to the doctor performing the abortion, not the woman receiving it.

The law specifically mentions and makes exceptions for ectopic pregnancies, in which the fertilized egg implants in a fallopian tube or on an ovary. Ectopic pregnancies always end in pregnancy loss, but can be dangerous, even fatal, for the pregnant woman.

In defining abortion, the law states that the term “does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy, nor does it include the procedure or act to terminate the pregnancy of a woman when the unborn child has a lethal anomaly.”

Rep. Terri Collins, R-Decatur, who sponsored the 2019 law, said other specifics may have to be litigated.

“I don’t think there’s a lot of clarity right now. We didn’t get into contraception or morning after pill. We really didn’t get into where everything begins with life – I mean, I know what I believe.” Collins said on Capitol Journal recently. “Some of those things may have to be worked out in courts.”

Blue Cross and Blue Shield of Alabama, the state’s largest health insurance provider, is also analyzing what the new law means as far as health insurance coverage.

“As we continue to seek to understand the implications of complying with the Court’s ruling and federal and state laws, we remain committed to our members and the communities we serve,”  Sophie Martin, spokesperson for Blue Cross and Blue Shield of Alabama, said.

Robin Marty, operations director for the West Alabama Women’s Center and author of “A Handbook for a Post-Roe America,” said that even before the Supreme Court decision, doctors across the state were wary when it came to abortions.

She said her clinic often had women come in experiencing pregnancy complications because doctors are scared of violating abortion laws or just don’t want the “hassle” of having to navigate that issue. She noted that many of her clinics patients had been denied care at a hospital before seeking help at the clinic.

“Now that this is going to be something they could literally lose their license over, it’s only going to get worse,” Marty said.

Marty said that with certain situations like excessive bleeding when the fetus still has a heartbeat leaves doctors unclear as to whether to perform an abortion or not. Even with ectopic pregnancies, she said things could turn into a waiting game for doctors to be certain that performing an abortion won’t get them arrested.

Collins said it remains to be seen whether the Legislature could revisit the law to provide more clarity. She said she’d be open to that after seeing how the law gets applied.

“Now that Roe is overturned, I think it’s our responsibility to decide ‘is this where we want to be?’ And I think this is where the communities get together and have conversations and we make sure we are going in a direction that the majority of Alabamians want us to be.”

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