In Alabama, reproductive justice activists are concerned about providing even basic information to people considering an out-of-state abortion. Alabama Attorney General Steve Marshall has threatened to use anti-conspiracy laws to prosecute individuals and groups who assist women traveling to another state to obtain an abortion. Though the Department of Justice warned that these prosecutions would be unconstitutional, Marshall stood by his threats.

The SPLC spoke to Kelsea McLain, the Deputy Director of Yellowhammer Fund – an abortion advocacy and reproductive justice organization that serves the Deep South – about the organization’s work in Alabama. She explained how the state’s political climate and hostility to reproductive rights has had “an incredibly huge chilling effect on people feeling safe reaching out for information and resources.” The attorney general’s threats and fear of criminalization forced Yellowhammer Fund to stop financially supporting Alabamians seeking safe and legal abortion care in another state. The Lawyering Project and the SPLC have filed a lawsuit on behalf of Yellowhammer Fund seeking to prohibit the attorney general from following through on his threats.

This fear of criminalization not only affects the support Alabamians can get in accessing abortion, but also the medical care they receive when they return home. Abortion is a safe procedure with an extremely low rate of complications, but those who are (or believe they are) experiencing complications may not be able to access quality care. “We have a lot of people that we know, we hear about, that are seeking after [abortion] care but are fearful to visit an ER or urgent care because of the criminalization,” McLain explained. In some cases, patients are likely being turned away because physicians are concerned that they may be implicated in the abortion which, under Alabama law, could mean up to 99 years in prison.

Robin Marty, the Executive Director of Operations for WAWC Healthcare (formerly the West Alabama Women’s Center), has seen a similar pattern, telling the SPLC, “We are seeing patients who are leaving the state in order to access abortion, and then come back to Alabama but believe that they have an issue and are not being able to be seen by their hospitals.”[9] Some of these women, she explains, are being told to return to the out-of-state clinic that provided the abortion care.

The fear of criminalization has damaged the relationship between doctors and their patients, resulting in a chilling effect where women are afraid to ask for necessary health information or care and physicians are afraid to provide it. Yellowhammer Fund hopes to help correct this. “One thing we’ve been working on is trying to build up networks of trusted health care providers and clinics and health care facilities that we know we can send someone to [for abortion aftercare],” McLain explained, “and they won’t be facing any sort of heightened interrogation or potential reporting.”

Even prior to the Dobbs decision, the organization Pregnancy Justice reported that at least 1,379 people were arrested because of their pregnancy between January 2006 up until the day before the Supreme Court decided to overturn the constitutionally protected right to abortion on June 24, 2022. Nearly half (46.5%) of these arrests were made in Alabama, including the arrest of Ashley Caswell, who was booked in March 2021 in Etowah County on charges of “chemically endangering a child” while pregnant. In 2013, the Alabama Supreme Court ruled that a fetus at any stage of a pregnancy is considered a child and is therefore protected by child endangerment statutes, making it one of four states to imprison women due to “fetal personhood.” In her book, Policing the Womb, Michele Goodwin, professor of constitutional law and global health policy at Georgetown University, explains, “fetal protection efforts, which are often purported to justify states’ persistent intrusions in poor women’s lives, serve to mask other politically expedient interests: controlling women and demanding their obedience, gerrymandering, pandering to tough-on-crime strategies, achieving electoral victories, and heightening moral panic.”[10]

In the name of protecting Alabama’s “unborn children,” Caswell spent the remainder of her high-risk pregnancy in jail, where she slept on a concrete floor with only a thin mat. She was denied prenatal care and her prescription medication. When her water broke in October, she was denied medical care as guards refused to take her to the hospital. She was scolded for screaming out in pain, offered only Tylenol. She spent hours vomiting, hemorrhaging blood and losing amniotic fluid, which increased the risk of infection for both Caswell and her child.

After 12 hours of labor, Caswell delivered her baby alone in a jail shower. As she fell unconscious, the guards continued to deny her even the most basic aid or medical care. Instead, they posed for photos with the baby, who was still attached to Caswell’s unconscious body through the umbilical cord. When she was finally taken to the hospital, doctors determined she had suffered a placental abruption, a life-threatening condition that could have suffocated her baby and carries a seven times higher risk of maternal mortality.

Caswell, who filed a federal civil rights lawsuit in Alabama and is being represented by the SPLC and Pregnancy Justice, is now serving a 15-year sentence, symbolizing the disparate treatment of pregnant women and their male counterparts for otherwise minor offenses. Between 2015 and 2023, Etowah County, Alabama, alone arrested 257 pregnant women and new moms under chemical endangerment of a child statutes.[11]

The law was passed in 2006 to target people who expose children to harmful chemicals and hazards like fires and explosions after converting their homes into methamphetamine labs. Instead, it has been used to effectively criminalize pregnancy and disproportionately target women — who account for 93% of arrests under this statute in Etowah County. Other arrests include a woman who smoked marijuana before she knew she was pregnant, and another who was accused of exposing her fetus to drugs and falsely imprisoned when she wasn’t even pregnant. Laws that view fetuses as people deprive women of their basic civil rights and legal protections.[12]

These laws incorrectly assume that a woman’s behavior during pregnancy is the only factor determining fetal health. In Caswell’s case, it was disproportionately enforced, ignoring how the jail environment, stress, denial of prenatal care, insufficiently nutritious meals, and the denial of urgently needed emergency medical care threatened the life of her son. Etowah County Detention Center has a history of denying medical care to pregnant women, threatening the lives of both the mother and her baby. However, no corrections officer, jail physician or administrator has faced any charges for endangering the life of a child.