Alabama attorney general could prosecute women who take abortion drugs. Opponents say it’s ‘plainly unlawful’

Days after the federal agencies made it easier to access abortion pills, Alabama’s chief law enforcement officer said women who use abortion medication can be prosecuted.

Alabama Attorney General Steve Marshall said the state could prosecute people who use abortion drugs not under the state’s anti-abortion law but with an older “chemical endangerment of a child” statute initially designed to protect children from meth lab fumes.

The state’s Human Life Protection Act, enacted in the aftermath of the US Supreme Court decision to strike down Roe v Wade and a constitutional right to abortion care, outlaws nearly all abortions and criminalizes providers. It explicitly exempts abortion patients from prosecution.

But Mr Marshall said the law does not provide patients with an “across-the-board exemption” from prosecution for seeking abortion care.

“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,” Mr Marshall said in an emailed statement to AL.com. “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.”

His statement follows federal regulatory changes for two medications commonly prescribed for medication abortions. The Food and Drug Administration finalised rule changes earlier this month to allow retail and mail-order pharmacies to dispense mifepristone and misoprostol, two prescription-only drugs that are used for more than half of all abortions in the US.

The US Department of Justice also issued a notice that the US Postal Service may deliver abortion drugs to people in states that have banned or severely restricted access to abortion care.

Mifepristone and misoprostol are also commonly used to treat miscarriages and gastric ulcers, among other conditions. Mifepristone and misoprostol are the only drugs recommended by the American College of Obstetricians and Gynecologists to treat an early pregnancy loss.

Last year, the FDA permanently lifted the in-person requirement for medication abortion prescriptions, allowing patients to access the drugs via telehealth appointments and online pharmacies so patients can take the drugs at home.

But within the last year, anti-abortion state legislators filed more than 100 bills to restrict the availability and distribution or abortion drugs, or sought to ban them altogether.

A right-wing group central to anti-abortion legislation and litigation across the US – including the landmark Supreme Court case that overturned Roe v Wade – also is suing the FDA to reverse its approval of mifepristone.

Alabama’s chemical endangerment law only applies to “controlled substances” on the Drug Enforcement Administration’s list of scheduled drugs, such as cannabis, methamphetamines, cocaine and heroin, among other illicit drugs. Mifepristone and misoprostol are not on that list.

The state already has applied the law to prosecute pregnant women who have allegedly used drugs, including prescription medication, more than 1,000 times, according to AL.com.

“Elective abortion – including abortion pills – is illegal in Alabama. Nothing about the Justice Department’s guidance changes that,” Mr Marshall said in his 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.”

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A statement from West Alabama Women’s Center said the attorney general’s statement was intended to “scare pregnant people from seeking abortions, but the reality is that they will still look for them – legal or not – because for some people remaining pregnant and giving birth is far more frightening than potential jail time.”

“They are still going to leave the state, they are still going to self-manage, and the only thing this will change is how likely they will be to seek medical care if something goes wrong,” the centre said in a statement. “And that means we can’t be silent anymore.”

Pregnancy Justice attorney Emma Roth said application of the law against people seeking abortion care “would be unprecedented” and “plainly unlawful”.

“When we say prosecutors have no shortage of laws to prosecute abortion, this is exactly what we mean,” according to the legal advocacy group.

“Medical decisions should remain the private choice between a patient and doctor,” according to a statement from ACLU of Alabama executive director JaTaune Bosby Gilchrist. “The Alabama AG lacks the jurisdiction to prosecute Alabamians from receiving legal and legitimate medical services prescribed outside Alabama.”