Alabama’s attorney general has said women who use pills to induce abortion could be prosecuted, citing a law first passed to protect children from meth lab fumes. His warning comes after the federal government’s recent move to ease access to medication abortion from retail pharmacies.

While Alabama has a near-total abortion ban that took effect after the Supreme Court overturned Roe v. Wade, that legislation targets abortion providers and exempts the people receiving abortions from liability. However, Attorney General Steve Marshall’s office said women could still face consequences under the state’s “chemical endangerment of a child” statute.

“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,” Marshall said in an emailed statement Wednesday. “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.”

A rule change from the Food and Drug Administration this month allows retail pharmacies for the first time to dispense abortion pills directly to consumers in states where the procedure is legal.

The Justice Department also issued a legal opinion that the U.S. Postal Service may mail abortion pills to people in states that have banned or restricted the procedure. It noted that two pills commonly used to perform abortions, mifepristone and misoprostol, can also be used for other purposes such as managing miscarriages or treating gastric ulcers, and said that federal law allows the delivery of the pills because the sender cannot know for sure how they will be used.

But Marshall maintained this would not impact Alabama. “Elective abortion – including abortion pills – is illegal in Alabama. Nothing about the Justice Department’s guidance changes that,” he said. “Anyone who remotely prescribes abortion pills in Alabama does so at their own peril: I will vigorously enforce Alabama law to protect unborn life.”

After Alabama’s chemical endangerment law was passed in 2006 to protect children from the risks of home-based methamphetamine labs, prosecutors began applying it to women who had taken drugs or exposed their fetuses to drugs – a practice the Alabama Supreme Court has since upheld.

Emma Roth, an attorney at Pregnancy Justice, which has fought efforts to criminalize abortion, said it “would be unprecedented” to use the chemical endangerment law to prosecute women who seek abortions. “When we say prosecutors have no shortage of laws to prosecute abortion, this is exactly what we mean,” the legal advocacy group also tweeted.

Although the Justice Department’s opinion means legal protection for providers who mail mifepristone and misoprostol, it would not protect a person who gets the pills by mail and uses them to induce abortion in a state where it is illegal, The Washington Post has reported.

The Supreme Court’s ruling on Roe has triggered new attempts to preserve access to the medications, which can be used to terminate early-stage pregnancies at home.

More than a dozen states have implemented strict abortion bans since the high court overturned the decision that had enshrined the right to terminate a pregnancy for nearly five decades. Some have specifically sought to curb access to medication abortion, including by drafting legislation to require internet providers to block abortion pill websites.

 

The Washington Post’s Perry Stein, Frances Stead Sellers and Rachel Roubein contributed to this report.

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