This week, Steve Marshall, Alabama’s Republican attorney general, said he sees a path to prosecuting women for having abortions in his state. This was a bit of a faux pas: a moment of letting slip the mask that the anti-abortion movement always tries to keep on.
Alabama’s abortion ban, which has only limited exemptions for women’s lives, makes providing an abortion a felony, punishable by up to 99 years in prison. But like nearly all of the abortion bans that have sprung into effect since the US supreme court’s ruling in Dobbs v Jackson Women’s Health overturned Roe v Wade last June, the law has no mechanism to prosecute women who receive abortions. But that doesn’t mean that patients are safe from criminal charges, according to the state’s top prosecutor.
“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,” a spokesperson for attorney general Marshall told Alabama’s 1819 News, referring to the law that bans abortion itself. However, he continued, “It does not provide an across-the-board exemption from all criminal laws.”
In other words, just because the Alabama abortion ban specifically doesn’t allow prosecutors to go after women who have had abortions, doesn’t mean that those women will not be arrested and jailed for their procedures. It just means that the prosecutors will have to find another law.
Which other law? The AG pointed to one in particular: Alabama’s law barring the so-called “chemical endangerment of a child”. The law, which was originally designed to protect kids from exposure to home meth labs, makes it a felony to “knowingly, recklessly, or intentionally cause or permit a child to be exposed to, to ingest or inhale, or to have contact with any controlled substance, chemical substance, or drug paraphernalia”. The Alabama state supreme court ruled in 2013 that the law can be applied to “children” who have not been born yet – that is, embryos and fetuses.
What does it mean in practice? It means that legally, a pregnancy is defined as a “person”, and a woman’s body becomes an “environment” that she has an obligation to keep free of hazards, in deference to the wellbeing of this other “person”. This is how the Alabama AG is threatening to lock up abortion patients: by defining women’s bodies not as spheres of those women’s own control, but as homes to house other people – and by defining abortion pills as hazardous “drugs”.
None of this is new. The truth is that chemical endangerment laws have long been used to criminalize pregnancy, and Alabama in particular has a long, sadistic history of prosecuting women who are pregnant – or believed to be pregnant – on suspicion that they have ingested something that might endanger a fetus.
Marijuana users and those seeking opiate addiction treatment have been arrested for supposedly endangering their fetuses in the state; in one county, the imprisonment of pregnant women on chemical endangerment charges or suspicion of drug use became so common that Pregnancy Justice, a national advocacy group that provides lawyers to those prosecuted for their pregnancy outcomes, had a whole project dedicated to getting women out of the county jail.
The substances that women are arrested for taking need not be illegal. Sometimes, they are prescriptions. In 2021, Alabama arrested a mother of six under a felony chemical endangerment charge after she refilled her longstanding painkiller prescription while pregnant (the woman, named Kim Blalock, had an old back injury from a car accident). Charges were eventually dropped, but not before Blalock had her home raided by armed police, who scared her children and was dragged through court for months. Her pregnancy, by the way, was fine: amid all the antagonism from her state, Blalock gave birth to a healthy baby boy.
But the comments from the Alabama AG do reveal a new trend in the anti-abortion movement: abortion opponents are being increasingly frank about their own sadism. The newest abortion bans gaining traction in the states have no exemptions for rape or incest; some, like those of Idaho and Tennessee, have no life of the mother exemptions, or require doctors to prove the medical necessity of an abortion after the fact, in court – provisions that incentivize medical providers to delay or deny care, to risk women’s health and lives.
For all the efforts of abortion opponents to put a paternalistic spin on their work, these positions are not anomalies; they are now firmly in the anti-abortion mainstream. In that sense, Marshall was just being honest: hurting women has always been the point.
Moira Donegan is a Guardian US columnist
• This article was amended on 13 January 2023 to reflect the fact that the name of the woman arrested for chemical endangerment is Kim Blalock. An earlier version had named a different woman.
