Legislative News

To Pregnancy Resource Centers, from Eric Johnston

The Alabama Human Life Protection Act (“AHLPA”) was signed into law on May 15, 2019. A federal court lawsuit was filed resulting in a preliminary injunction, which subsequently was dissolved by court order on June 24, 2022, as a result of the U.S. Supreme Court’s decision in  Dobbs v. Jackson Women’s Health Organization. The AHLPA went into legal effect that very same day. It is now enforceable in the State of Alabama. The purpose of this memo is to briefly outline and comment on the operative provisions of the Act as follows: *

26-23H-3, 1975 Code of Alabama :

                      (1) The definition of abortion includes the surgical or medical (chemical) termination of the pregnancy. It does not include an activity done with the intent to:

                                    (a) save the life or preserve the health of an unborn child

                                    (b) remove a dead unborn child

                                    (c) deliver the unborn child prematurely to avoid a serious health risk to                    

                                    the child’s mother, or

                                    (d) preserve the health of her unborn child.

The law permits enforcement of penalties for administering or supplying abortifacients.  This includes the possibility of proceedings against those who send the drugs into Alabama.  That will be the task of law enforcement.  Currently, the Biden Administration says the FDA will preempt all state laws and will send drugs to all 50 states.  The Alabama Attorney General says he will oppose this.  Our belief at this time is that the FDA will not prevail.  The law does not regulate contraceptives, plan B or in vitro fertilization.

                      (2) The definition does not include an ectopic pregnancy, which is a pregnancy resulting by the fertilized egg implanting or attaching outside the uterus or implanted inside the cornu of the uterus.

                      (3) The definition does not include a procedure to terminate the pregnancy of an unborn child that has a lethal anomaly, meaning the condition that the unborn child would die at birth or shortly thereafter or be still born.

                      (4) Medical emergency includes only a serious health risk defined below.

                      (6) A serious health risk to the unborn child’s mother includes only a medical condition that necessitates termination of the pregnancy to avert her death or to avert serious risk of a substantial physical impairment of a major bodily function. It does not include an emotional condition or mental illness.

*The numbers correspond to the numbers in the statute.

Another exception is if a psychiatrist, as a second physician unrelated to the physician who would perform the abortion, with a minimum of three years clinical experience, diagnoses a serious mental illness such that she will engage in conduct that would result in her death or the death of her unborn child. In such event, the termination shall only be performed by an Alabama licensed physician in an Alabama hospital where he or she has admitting privileges. This definition was to satisfy the medical and hospital associations, but we created an exception that there only be implemented through a substantial process to avoid abuse or a routine mental health exception practice. Also, keep in mind that since the violation of the law is a Class A felony, being ten years to life, there is a substantial deterrent to abuse.

                        (7) The unborn child, or person, is defined as a human being, specifically including an unborn child in utero at any stage of development, regardless of viability. This definition is used to provide an evidentiary basis for a criminal violation.  It is the same as in the Alabama Criminal Code.

§26-23H-4, id.            (a) It is unlawful to perform or attempt to perform an abortion, except where an exception applies.

                                   (b) If the attending physician determines the abortion is necessary because of the defined exceptions, unless it is a medical emergency, the physician’s determination shall be confirmed in writing by a second physician licensed in Alabama.

§26-23H-5, id. The woman will not be criminally or civilly liable for an abortion that is performed or attempted to be performed. It is and has been APLC’s policy to not criminalize the activities of the woman, but to provide her as much assistance and guidance as possible. Additionally, by giving the woman immunity, she cannot be prosecuted or held civilly liable for obtaining an abortion in another state, nor will a person who assists her in going to another state, where abortion is legal, be prosecuted or held civilly liable.

§26-23H-6, id.            (a) An abortion performed in violation of the law is a Class A felony, being inclusive of ten years to life in prison

                                  (b) An attempted abortion performed in violation of this chapter is a Class C felony, being one year to ten years in prison.

Note: the severity of the penalty will be a deterrent to routinely provide unlawful abortions. Unlike under Alabama’s previous law, where the penalty was only a misdemeanor, it is highly unlikely anyone would engage in an abortion practice or the continued performance of unlawful abortions.

CONCLUSION:

Alabama has both the Human Life Protection Act and the Alabama Constitutional Amendment, Article I, §36.06, 1901 Constitution of Alabama that recognizes the unborn child as a person without the meaning of the Alabama Constitution. This amendment serves two purposes. First, it helps shield further legal action against the AHLPA and second, it does not permit exceptions such as rape or incest. Those conditions must be carefully and charitably treated for those who come into pregnancy resource centers for assistance.

As time goes forward and the application of the AHLPA is put into practice, additional questions and concerns will arise. Please feel free to contact me at any time for guidance. Thank you for your service.

An Educational Update from Eric Johnston of the Southeast Law Institute

In 2018, the Alabama Pro-Life Coalition thought the time might be ripe for a review of Roe v. Wade and Planned Parenthood v. Casey, which legalized abortion on demand.  In 2019, we authored the Alabama Human Life Protection Act (“AHLPA”), with the idea of being among those states which may be bringing cases to SCOTUS for review.  Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law limiting abortion to before fifteen weeks, was the first case to make it.

In a five-four majority, Justice Samuel Alito writing for the court, rejected any incremental approach and completely threw out the right to abortion as a federal right under the U.S. Constitution.  The opinion leaves the decision to the states.  The opinion concentrated on two issues.   The first is whether there is a U.S. Constitutional right to an abortion and the second being whether the doctrine of stare decisis would keep Roe and Casey in place.  The opinion is very similar to the one leaked in February, but is significantly stronger.  The opinion leaves no doubt that the federal right to abortion no longer exists in America.  Whether an abortion is permitted is left up to individual states.   

Without mincing words, the opinion began that “even though the Constitution makes no mention of abortion, the court [in Roe] held that it confers a broad right to obtain one. It did not claim that American law or the Common Law had ever recognized such a right, and a survey of history ranged from the constitutionally irrelevant… to the plainly incorrect ….”  The opinion stopped short of calling prior Justices by name, but certainly pointed out the egregious miscarriage of justice for which they were guilty.  The majority opinion, in a nutshell, states:

“We hold that Roe and Casey must be overruled.  The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the 14th Amendment.  That provision has been held to guarantee some rights that are not mentioned in the constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in a concept of ordered liberty.”’

“The right to abortion does not fall within this category.  Until the latter part of the 20^th century, such a right was entirely unknown in America… Roe’s defenders characterized the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and  Casey acknowledge, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an unborn human being” ***  “Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel upending adherence to Roe’s judicial authority.  Roe was egregiously wrong from the start.  Its reasoning was exceptionally weak, and the decision has had damaging consequences.  And far from bringing back a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.  It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.”

Following that summary, the court went into detail on why there is no constitutional right to abortion.  Specifically, the word is not mentioned in the constitution.  However, according to Roe and Casey, the right exists under one’s rights of privacy or liberty.  Those rights are based in the 14^th Amendment, as well as some other amendments which Roe and Casey mentioned.  However, after examining the history of abortion, the court holds such right does not exist.  There’s no evidence of such rights being deeply rooted in history and tradition or being essential to the nations “scheme of ordered liberty.”

Importantly, the right to abortion is not found in the 14^th Amendment’s Due Process Clause.  It is not a right protected by the constitution for which one can be deprived.  “…[A] state’s regulation of abortion is not a “sex-based classification” and is thus not subject to “heightened scrutiny” … “Rather, they are governed by the same standard of review as other health and safety measures.”

The standard of review for other health and safety matters is a rational basis review.  In other words, “…states may regulate abortion for legitimate reasons, but when such regulations are challenged under the constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.” *** “A law regulating abortion, like other health and welfare laws, is entitled to ‘strong presumption of validity.’  It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests… These legitimate interests include respect for and preservation of prenatal life at all stages of development….”  Since there is no long history of abortion rights and ordered liberty, these rights do not exist and “…the people in various states may elevate those interests differently.  In some states, citizens may believe that the abortion right should be more extensive than the right that Roe and Casey recognized.  Citizens in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.”’

The next area of inquiry was whether SCOTUS should disturb the Roe and Casey precedents.  The doctrine of stare decisis essentially states that courts will base their continuing opinions on precedent and not disturb earlier opinions.  However, the doctrine is “not an inexorable command.”  Courts, like people, make mistakes.  The court examined several factors to be reviewed in determining whether prior precedents should be reversed.  The first was the “nature of the court’s error” having found that “Roe was also egregiously wrong and deeply damaging… and on a collision course with the constitution from the day it was decided…”  The court referenced Justice Byron White’s dissent in Roe that the court acted only through its “raw judicial power” to “usurp the power to address the question of profound moral and social importance that the constitution unequivocally leaves for the people.”  In other words, the court’s error was so significant that it demanded reversal. 

The court also examined the quality of the reasoning in Roe.  Finding that it totally failed on its historical review, there was no quality.  Additionally, the plurality opinion in Casey “pointedly reframed from endorsing most of [Roe’s] reasoning.  Therefore, neither case had the requisite strength to continue as precedent. 

A third factor examined was whether the opinion was workable.  In several places the opinion pointed out that in Roe and Casey SCOTUS was acting like a legislative body.  The trimester concept, the viability concept, and then the undue burden standard that Roe and Casey created were all unworkable theories, without history or explanation, and without the court providing guidance.  How then could these opinions be workable? 

Two wrongs do not make a right.  What would Dobbs do? Three wrongs would not have made a right.  Both Roe and Casey were wrong, yet the issue of abortion raged for another thirty years after Casey.  Casey should have reversed Roe, but the doctrine stare decisis kept that from happening.  Finally, in Dobbs, the court has removed the so called right of abortion from the U.S. Constitution. 

On the day Dobbs was released, Attorney General Steve Marshall filed a motion to dismiss the case against AHLPA and Judge Myron Thompson granted it.  Alabama’s law went into effect immediately. 

We had hoped Dobbs would define the unborn child as a “person” within the meaning of the U.S. Constitution, thereby prohibiting abortion everywhere.  Both Alito in the main opinion and Kavanaugh in his concurring opinion did not do that.  The decision is left to the states.  Also, we must be wary that the U.S. Congress could establish a national statute prohibiting abortion.  The Supremacy Clause of the U.S. Constitution may override state laws.  That is why federal elections are so important.

For now in Alabama, we accomplished our goal.  The unborn child is a person here.

Many committed Alabamians have worked for many years to accomplish the goal that has now been reached.  We initially worked prior to Casey for a reversal of Roe.  When that did not happen, Alabama passed a law to prohibit post viability abortions and then numerous other laws to improve the healthcare of women, along with reducing the number of abortions. While there may be minor changes to our course, we have finally protected unborn children in Alabama.

The Alabama Pro-Life Coalition will now turn its attention to helping those women, unborn children and their families who have unexpected or problem pregnancies.  APLC worked last year and is already working this year on several projects to provide aide to them.  It will be seeking assistance from state agencies as well as non-governmental agencies to provide resources of every description to help those in need.   SLI is pleased to be a partner with their efforts.    Also, we must address the issue of the FDA permitting the purchasing of abortion producing drugs from out of state.  This is prohibited by the AHLPA, but must be enforced. We will have issues still unknown to address.

This statement is for educational purposes only.  It is not intended to provide legal assistance.  We hope if you have questions or know of those who do, you will contact us and we can assist through referral to one of our cooperating attorneys. © 2022, Southeast Law Institut

Dr. George Barna, who is with the Cultural Research Center, discussed his latest research concerning the upcoming November elections with ALCAP President and CEO Greg Davis on Monday, October 31st. They covered the issues that matter most to the public, including inflation and crime. They also talked about the issues that prospective voters cared about the least, such as the environment and religious freedom.

The conversation, which occurred on Priority Talk Radio, then moved to what pastors should do with this information.

"2 out of 3 people across the country said they are dying for their pastor to teach them how to think about [these issues]," said Dr. George Barna.

You can listen to the podcast episode here.

On Friday, October 21st, Stephanie Holden Smith of the Thatcher Coalition talks to ALCAP President and CEO Greg Davis on Priority Talk about what she sees as the death of American Feminism. Modern Feminism, according to Stephanie, is not what it used to be. How can she say this? A discerning person needs to follow the money and think through the values being espoused.

She says, "My argument is that Feminism as an American movement is not only unnecessary––because American women enjoy every freedom that American men enjoy… The movement has basically been bought and paid for by the abortion lobby, and it's really just an excuse to advocate for abortion up until birth."

Stephanie Holden Smith and Greg Davis talk about the history of Feminism and take the listener all the way up to the present day. They also talk about our culture broadly and the state of the economy.

You can listen to the podcast version of the conversation here.

On Wednesday, October 19, attorney Eric Johnston of The Southeast Law Institute joined ALCAP President and CEO Greg Davis on Priority Talk to update the citizens of Alabama on various gambling issues in the state. They walk through the history of gambling in the state, and bring the conversation to the present day.

With the development of technology, there is a new frontier that must also be addressed: electronic and online gambling. Gambling goes beyond simple card games these days, and Christians need to be aware of its various forms.

"A lot of our legislators, both Republican and Democrat, are all for comprehensive gambling and/or a lottery here in the state of Alabama," Greg said.

Let your local representatives know that you are not!

You can find the podcast episode here.

On Thursday, October 13, ALCAP President and CEO Greg Davis joined with ALCAP advisor Christine Carr in releasing an open letter to Alabama urging them to be aware and act against the acceptance of medical marijuana in their community. They write that many innocent people with honest intentions are tricked into supporting a movement that only leads to addiction and other destructive practices. The letter is designed to help inform and educate its readers so that they will not believe lies on this important issue.

The letter, published by The Alabama Baptist, states: "The profit-driven marijuana industry will wreak havoc in your community, as they have done in other states before us, if you do not speak out and help stem the coming tide."

Greg Davis and Christine Carr go on to discuss the devastation that marijuana causes, why the term "medical marijuana" is misleading, the money motives behind the whole movement, and much more. We urge the citizens of Alabama to stand up against the legalization of medical marijuana.

You can read the open letter here.