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Alabama considers potential murder charge for abortion, equal protection for ‘preborn children’

Protesters, demonstrators and activists gather in front of the U.S. Supreme Court on Dec. 1, 2021, as the justices hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks. (Photo by Olivier Douliery/AFP via Getty Images.)

Protesters, demonstrators and activists gather in front of the U.S. Supreme Court on Dec. 1, 2021, as the justices hear arguments in Dobbs v. Jackson Women’s Health, a case about a Mississippi law that bans most abortions after 15 weeks. (Photo by Olivier Douliery/AFP via Getty Images.)

Women who get abortions in Alabama may be charged with murder, if newly-introduced legislation in the Republican-run state is ultimately passed.

Newly-elected state Rep. Ernie Yarbrough, a Republican who ran on a “medical freedom” platform in 2022, introduced HB 454 Tuesday. The proposal would repeal the provision of existing state law that prohibits prosecuting someone who has an abortion for homicide or assault.

The law would also add a provision that “prosecutions of homicide or assault where the victim is an unborn child shall be treated the same as prosecutions of homicide or assault of a person born alive.”

Several other states, including Louisiana, Texas, and South Carolina have already introduced similar legislation, with South Carolina even seeking to make abortion a capital crime potentially punishable by death.

Alabama’s proposed HB 454 allows a defense if a person was “compelled… by threat of imminent death or serious physical injury to himself or another,” but only if the person using that defense did not “place[] himself in a situation in which it was probable that he would be subjected to duress.”

Notably, the bill’s language uses male pronouns to describe those who may be prosecuted under it, even though abortions are normally obtained only by pregnant women.

The new legislation is part a conservative trend toward increasing penalties for those who perform, seek, undergo, or assist abortions that follows the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization. The landmark ruling eradicated any constitutionally-based right to an abortion, but did not prohibit abortions. The ruling took no position on what states should legislate with regard to abortions, but rather, said the topic of abortion was one that fell squarely within state control. since the Dobbs ruling, some states have opted to enshrine a right to abortion in their own constitutions while others have aggressively prohibited abortions.

In addition to carving out criminal prosecutions for abortions, the Alabama bill also includes language recognizing that “the sanctity of innocent human life, created in the image of God, is acknowledged and should be equally protected from fertilization to natural death.”

The bill goes a step further and declares that  “all preborn children from the moment of fertilization have the right to life and equal protection of the laws,” and demands that these “preborn children” are “entitled to due process protection” under the U.S. Constitution.

The equal protection clause of the 14th Amendment — added to the Constitution in the aftermath of the Civil War— was designed to protect the rights of newly-freed slaves; it is the foundational tenet that underscores prohibition of discrimination on the basis of race, religion, national origin, and gender.

Equal protection jurisprudence is robust and complex, and is ultimately a topic that closely tied to rulings issued by the United States Supreme Court rulings, not definitions crafted by state legislatures. The  Court has created a framework for evaluating equal protection challenges to state law which requires differing levels of scrutiny for different kinds of classifications. A key point of disagreement among justices has been — and continues to be — which groups of people should be considered a “protected class” for purposes of equal protection.

Should Alabama adopt HB 454, the Yellowhammer State may choose to re-interpret its own state constitution, but the legislation would bind courts to interpret the U.S. Constitution to confer due process or equal protection rights onto “preborn children” or any other classes that have not been recognized on the federal level.

The idea of recognizing fetuses as legal persons with constitutionally-protected rights is nothing new in conservative circles. However, the Supreme Court has so far declined to interpret the Constitution as guaranteeing fetal personhood. Indeed, last October, the Court denied review in a case that would have allowed fetuses the right to sue in court.

Alabama has come under fire for equal protection violations, particularly within the context of denying voting rights to racial minorities on the basis of race. Alabama’s 2021 districting maps were drawn by the state legislature such that only one of the state’s seven congressional districts would likely have the chance of electing a Black representative, despite the state’s having a roughly 27 percent Black population.

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HB 454 is expected to head to the House committee for review.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos