The pro-life community is generally aware that in 1973 the Supreme Court struck down the abortion laws of Texas and nearly all other states through Roe v. Wade, creating out of thin air a “constitutional” right to abortion even though the Constitution does not even mention it. Many of us worked, fought and prayed for 49 years to overrule that decision.
We are also generally aware that our prayers were answered with the 2022 Dobbs v. Jackson decision, when the Supreme Court overturned Roe v. Wade, holding that the Constitution does not guarantee a right to abortion and that the states have the authority to allow, prohibit, or regulate abortion as they deem fit. The Foundation for Moral Law, for which author John Eidsmoe serves as senior counsel, filed an amicus brief urging the Court to uphold the Mississippi law and overrule Roe v. Wade.
The Alabama pro-life community is generally aware that voters ratified an amendment to the Alabama Constitution in 2018, providing that it is the state’s policy to recognize and support “the sanctity of unborn life and the rights of unborn children, including the right to life.” This amendment also sought to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate,” further stating that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” Supporters of this amendment wanted to make sure that, if Roe v. Wade were overruled, abortion supporters could not rely upon the Alabama Constitution for abortion rights as they had done in liberal states.
Relying upon this amendment, in 2019, the Alabama Legislature adopted the Alabama Human Life Protection Act (HLPA). The Act bans abortions at all stages of pregnancy except for ectopic pregnancies (in which the embryo attaches outside the uterus), pregnancies that “present serious health risk” to the mother, or lethal anomalies that would cause the fetus to be stillborn or die shortly after birth. Doctors who perform or assist in abortions prohibited by this Act can be sentenced to life imprisonment, which makes perfect sense if the preborn child is a living person. Author Eidsmoe also worked for the passage of this bill, personally observing the abuse pro-abortion forces heaped upon its sponsors.
Alabama’s abortion law is arguably the strongest in the nation. Yet despite this law, despite this amendment, and despite the Dobbs decision, thousands of abortions are performed in Alabama annually, openly and legally – and the number of abortions in Alabama and nationwide is actually increasing!
When the word “abortion” comes to mind, one’s first thought is often of forceps or suction devices tearing limbs from an easily recognizable human baby. But even before Roe was overturned, many abortions in our country were done chemically.
A chemical abortion typically involves taking mifepristone and misoprostol to cause a miscarriage. These chemicals come in pill form and can be ordered online without a prescription. This is normally done during the first 13 weeks of pregnancy and is much cheaper than a surgical abortion. The internet contains numerous websites explaining how a mother can obtain these pills, take them, and abort her child without help from anyone.
More than 3,500 babies are still being legally murdered on Alabama soil each year, the Foundation to Abolish Abortion says. But since we cannot track internet sales of abortion pills, the number could be much higher.
Is this legal in Alabama? Technically, no; it is an abortion prohibited by the Act. However, the Act contains an exception that allows such abortions to go unpunished.
When HLPA was adopted six years ago, legislators’ minds were mostly on surgical abortions. The law eventually closed surgical abortion centers, but it left a major loophole for abortion via the pill. Now that the abortion clinics are gone, virtually every abortion in Alabama is done chemically.
The law technically forbids these abortions as well. But it also states, “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.” This arguably shields a woman from prosecution even if she is the one performing the abortion! In our current situation, an abortion-minded woman can obtain these pills either by traveling out of state (both Columbus, Ga., and Pensacola, Fla., have abortion clinics near our borders) or ordering them online. If she takes the pills, she is the only one involved in the crime! There is no one else who can be charged, so there is no justice for her unborn child.
Perhaps the drafters and sponsors of HLPA believed that without that exception, their bill would not pass. It is time to rethink that assumption.
Should the mother be exempt from laws that forbid the killing of her child? Arguably, the killing of one’s own child is an act of even greater depravity than that of killing a stranger. “If it seems more horrible to kill a man in his own house than in a field, because a man’s house is his place of most secure refuge, it ought surely to be deemed more atrocious to destroy a foetus in the womb before it has come to light,” John Calvin wrote. The child ought to be safest in his mother’s womb and in the care of the person who brought him into the world.
There is another issue with the HLPA: It specifically prohibited “abortion.” Yes, of course, that was the goal, but phrasing it that way left a large class of pre-born humans unprotected, namely, the human embryos made in a laboratory through in vitro fertilization (IVF). They are worthy of the same protections as any other humans, yet tragically, standard IVF involves intentionally killing certain embryos deemed unfit or unwanted. Purposely destroying one of these embryos is morally and ethically murder, but may not be an “abortion” because it does not directly involve a pregnancy.
In LePage v. Center for Reproductive Medicine (2024), the Alabama Supreme Court held that in vitro frozen embryos are “persons” under the Alabama Constitution, but the legislature has now exempted clinics from civil or criminal liability for their destruction. Author Eidsmoe addressed this decision in a column last year and it seems the legislature needs to give this issue a second look. Author Paul Abbott and End Abortion Alabama are working to persuade the legislature to do that.
Both problems, chemical abortions as well as destroying human embryos in a lab, can be solved if we take the principle of equal protection as found in the 14th Amendment and apply it to the preborn.
A courageous legislator, Rep. Ernie Yarbrough (R-Trinity), has authored a pioneering bill, the Prenatal Equal Protection Act (HB518), and will prefile this bill at the end of this session so it will hopefully get prompt and favorable consideration in the 2026 session. Instead of using crafty language to specify what types of abortions in which contexts are permitted or prohibited, it simply applies the same laws that currently apply to the murder of a born person to the murder of a preborn person. It doesn’t ban certain methods or specify certain penalties. Rather, it gives equal protection to all.
The principle is simple: Murdering anyone should be illegal for everyone. And that’s what Yarbrough’s Prenatal Equal Protection Act provides.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
Paul H. Abbott II serves as Executive Director for End Abortion Alabama (endabortional.org). He has experience across the country in the fight against abortion both in state legislatures and ministering on the sidewalks outside abortion clinics. He can be reached at [email protected].
