CLAIM: In Alabama, the penalty for a doctor who provides an abortion in the case of rape is more severe than the penalty for the rapist.
AP’S ASSESSMENT: Missing context. Alabama law does not require that outcome, though experts say it could happen. The law that bans most abortions classifies an illegal abortion as a Class A felony, the same as first-degree rape. Both are punishable with life in prison or a sentence of up to 99 years, though sentencing involves a judge’s discretion and other factors.
THE FACTS: Following the Supreme Court’s decision to overturn Roe v. Wade, the 1973 decision that had provided a constitutional right to abortion, the procedure became almost entirely illegal in Alabama.
Some social media posts in recent days, however, blurred the facts around the penalties.
“In the state of Alabama, the penalty for a doctor who performs an abortion in the case of rape is more severe than the penalty is for the rapist himself,” reads one tweet shared nearly 7,000 times.
The law makes performing an abortion at any stage of pregnancy a Class A felony, which is punishable by 10 to 99 years, or life, in prison. There is no exception for rape or incest victims. The only exceptions are when there is a serious health risk to the mother or the fetus has a lethal anomaly that would cause it to die shortly after birth.
Alabama law also categorizes first-degree rape as a Class A felony. That’s defined as someone who has sex with another person “by forcible compulsion”; with someone who is incapacited and therefore incapable of consent; or with someone who is less than 12 years old, if the offender is 16 or older.
“It is possible for the doctor who performs an abortion in the case of rape to be punished more severely than the rapist, but not required by law,” John Felipe Acevedo, an assistant professor in residence at the University of Alabama School of Law, said in an email to The Associated Press.
Additionally, second-degree rape in Alabama — when someone who is 16 or older has sex with someone who is older than 12 but younger than 16, and is at least two years younger than the offender — is a lesser crime known as a Class B felony, and punishable with a sentence between two and 20 years.
In the case of second-degree rape, therefore, a doctor does face a more severe felony charge and higher sentencing range.
Experts further note that judges use discretion when handing down sentences, and sentences aren’t necessarily served entirely behind bars.
Alabama allows for split sentences, when part is served in prison and the remaining portion is “suspended” while the person is released on probation, said Amy Kimpel, an assistant professor at the University of Alabama School of Law and director of its Criminal Defense Clinic.
Kimpel said in an email that the state manual that provides sentencing guidance also calls for incorporating different factors into sentencing, such as any prior convictions.
“Because no one has ever been sentenced under the 2019 abortion law, it’s not clear what sentencing for that offense will look like and it’s not addressed in the Manual,” Kimpel said in an email. “Needless to say, the sentencing on abortion crimes will be highly politicized. Judges in Alabama are elected officials, so given the current lack of guidelines, sentencing will be unpredictable.”
This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.