Alabama AG says women could be prosecuted for taking abortion pills

Alabama’s attorney general said medication abortion remains illegal in the state despite recent Biden administration moves to expand access to the drugs, and indicated that a law regarding the chemical endangerment of a child could be used to prosecute women who use abortion pills.

Alabama’s near-total abortion ban, which took effect immediately after the Supreme Court overturned Roe v. Wade last summer, targets abortion providers and exempts people who receive abortions from being prosecuted.

In a statement to The Hill, a spokesman for state Attorney General Steve Marshall (R) said individuals could instead face charges under Alabama’s chemical endangerment law, which was passed in 2006 to protect children from exposure to chemicals and fumes from home meth labs.

Prosecutors have since extended the law so it applies to pregnant people who took any drugs while pregnant or exposed their fetuses to drugs.

“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’s office said in a statement emailed to The Hill Wednesday. “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.”

Alabama law says a person commits the felony of chemical endangerment of a child if that person “knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia.”

The Biden administration earlier this month moved to make abortion pills available to patients with a prescription in retail pharmacies in states where abortion is legal. Previously, physicians could only prescribe the pills in person.

In a separate but related move, the Justice Department said the U.S. Postal Service is legally allowed to deliver prescription abortion drugs, even in states that have curtailed access to abortion.

In the opinion, the Justice Department wrote that even in a jurisdiction with restrictive abortion laws, individuals can still lawfully use the drugs mifepristone and misoprostol because there are no prohibitions on abortions necessary to preserve the life of the pregnant person.

Republican-led states have been moving to limit or even completely ban access to the drugs, and advocates have been concerned the Supreme Court’s decision overturning Roe will embolden even more states to crack down. There has been a growing effort to circumvent the laws by mailing the drugs, often from overseas, directly to people seeking them.

But that theory has not been tested, and it’s unclear if a person who gets the pills by mail and uses them to induce abortion in a state where it is illegal would be protected.

Marshall said the administration’s efforts have no impact in Alabama.

“Promoting the remote prescription and administration of abortion pills endangers both women and unborn children. Elective abortion—including abortion pills—is illegal in Alabama. Nothing about the Justice Department’s guidance changes that,” Marshall wrote in a statement. “Anyone who remotely prescribes abortion pills in Alabama does so at their own peril: I will vigorously enforce Alabama law to protect unborn life.”