Alabama Amendment 2: Abortion Ban, Dobbs, and IVF

Alabama Amendment 2 is a 2018 amendment to the Alabama Constitution that declares it the public policy of the state to support the rights of unborn children and states plainly that nothing in the state constitution protects a right to abortion or requires the funding of one. Approved by about 59 percent of voters, it sat largely dormant while Roe v. Wade remained in force. After the U.S. Supreme Court overturned Roe in 2022, the amendment became the constitutional foundation for Alabama’s near-total abortion ban, and in 2024 the Alabama Supreme Court relied on it to extend legal protection to frozen embryos.

What the Amendment Says

Amendment 2 added Section 36.06 to Article I of the Alabama Constitution under the heading “Sanctity of Unborn Life.” It has three operative pieces.¹

It declares the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.
It directs the state to protect those rights in all lawful and appropriate ways.
It states that nothing in the Alabama Constitution secures or protects a right to abortion or requires the funding of an abortion.

That third sentence is the one that does the heavy legal work. It forecloses any argument that the state constitution independently guarantees abortion access, no matter how broadly a court might otherwise read provisions like privacy or due process.¹

Why It Was Passed in 2018

When voters approved Amendment 2 on November 6, 2018, Roe v. Wade was still binding and states could not enforce outright abortion bans. The amendment prohibited nothing on the day it passed. Its purpose was strategic.

In other states, advocates had argued that even if federal abortion protections were weakened, the state constitution independently guaranteed the right. Amendment 2 closed that door in Alabama. By writing into the constitution that no such right exists under state law, it ensured Alabama courts would have no basis to strike down future abortion restrictions on state constitutional grounds. The amendment functioned as a lock set to hold whenever the federal framework changed.

What the Amendment Does After Dobbs

The federal change came on June 24, 2022, when the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization. The Court overruled Roe and Planned Parenthood v. Casey, holding that the U.S. Constitution does not prohibit states from regulating or prohibiting abortion and returning that authority to the states.²

Within hours, a federal judge in Montgomery lifted the injunction that had blocked Alabama’s 2019 abortion ban, finding the legal basis for the injunction no longer existed. Amendment 2 immediately became the state constitutional backstop. Because the amendment forecloses any state constitutional right to abortion, challenges in Alabama courts must now rely on federal law or other narrow grounds. The state judiciary is effectively removed as a venue for overturning abortion restrictions.

The Abortion Ban the Amendment Supports

The statute Amendment 2 now underwrites is the Alabama Human Life Protection Act, codified at Title 26, Chapter 23H. It makes it a crime for any person to perform or attempt to perform an abortion, with only narrow exceptions.³ The law was passed in 2019, blocked in federal court, and then enforceable once Dobbs cleared the way.

There are no exceptions for pregnancies resulting from rape or incest. An abortion is permitted only when a licensed Alabama physician determines it is necessary to prevent a serious health risk to the mother, meaning a condition that so complicates her medical situation that terminating the pregnancy is needed to prevent her death or a serious risk of substantial physical impairment of a major bodily function.⁴ Outside of a medical emergency, a second licensed Alabama physician must confirm the determination in writing within 180 days after the procedure.³

Emotional conditions and mental illness are excluded from the definition of serious health risk in most circumstances. A narrow pathway exists if a licensed Alabama psychiatrist with at least three years of clinical experience diagnoses a serious mental illness and documents reasonable medical judgment that the patient will engage in conduct that could result in her own death or the death of the unborn child; in that case the procedure must take place in a hospital where the performing physician has admitting privileges.⁴

Several medical situations fall outside the definition of abortion entirely. Treatment of a miscarriage, defined as removal of a dead embryo or fetus where no cardiac activity is detected, is not an abortion. Treatment of an ectopic pregnancy, where a fertilized egg has implanted outside the uterus or inside the cornu of the uterus, is also excluded, and the gestational-age and reporting rules that apply to abortions do not apply. Termination of a pregnancy where the fetus has a lethal anomaly is likewise excluded, defined as a condition from which the fetus would die after birth, shortly thereafter, or be stillborn. The statute does not list specific qualifying conditions, leaving the call to medical judgment.

Criminal Penalties

The law targets the person who performs or attempts the procedure, not the patient. Performing a prohibited abortion is a Class A felony. An attempt that does not result in completion of the procedure is a Class C felony.⁵ Under Alabama’s general sentencing statute, a Class A felony carries a prison term of not less than 10 years and up to 99 years or life.⁶ A single conviction carries a mandatory minimum of 10 years, higher than the floor for many violent offenses in the state.

How the Amendment Reached IVF

Amendment 2’s language about the rights of unborn children has pushed beyond abortion. In February 2024, the Alabama Supreme Court decided LePage v. Center for Reproductive Medicine, holding that Alabama’s Wrongful Death of a Minor Act applies to frozen embryos created during in vitro fertilization. The court ruled the Act covers all unborn children regardless of their location, including embryos stored in a cryogenic facility outside the womb.⁷

The court cited Section 36.06, the provision added by Amendment 2, as evidence that Alabamians had adopted a constitutional amendment aimed at stopping courts from excluding unborn life from legal protection. The reasoning carried the amendment well past the abortion context.⁷

The decision created immediate problems for IVF clinics. If the accidental destruction of a frozen embryo could trigger a wrongful death lawsuit, routine IVF operations carried unmanageable legal risk, and several clinics paused services in the weeks that followed.

The legislature responded quickly. In March 2024, Governor Kay Ivey signed SB 159, providing broad civil and criminal immunity for anyone providing or receiving IVF services when embryos are damaged or destroyed. The law applies retroactively to acts or omissions not already in litigation when it took effect. For manufacturers of goods used in the IVF process or in embryo transport, damages are capped at the price paid for the affected IVF cycle, and criminal prosecution is barred.⁸

The IVF immunity statute is a practical patch. It does not disturb the underlying constitutional principle Amendment 2 established, and LePage remains good law. The amendment’s language about unborn children’s rights can still surface in legal contexts the legislature has not yet addressed.

1
FindLaw. Article I Declaration of Rights Alabama Constitution of 1901
2
Supreme Court of the United States. Dobbs v Jackson Womens Health Organization
3
Alabama Legislature. Alabama Code 26-23H-4 – Abortion Prohibited Exception
4
Alabama Legislature. Alabama Code 26-23H-3 – Definitions
5
Alabama Legislature. Alabama Code 26-23H-6 – Violations
6
Alabama Legislature. Alabama Code 13A-5-6 – Sentences of Imprisonment for Felonies
7
Justia Law. LePage v Center for Reproductive Medicine PC
8
BillTrack50. AL SB159