Photo credit: Legislative Services Agency, http://lsa.state.al.us/
By: Sarah Tindle
Member, American Journal of Trial Advocacy
Many hot topics from medical marijuana to chemical castration were considered by the State of Alabama’s Legislature during the 2019 Legislative Session. The Legislature met for twenty-eight of its thirty allowed days prior to adjourning sine die[1] on May 31, 2019, thereby ending the 2019 Regular Legislative Session.[2] Even without exhausting its thirty legislative days, the Legislature did not fail to turn heads, raise brows, and gain the attention of national—and even international[3]—media during the 2019 Regular Session.
Once a bill passes the Legislature (unless it is a constitutional amendment that must then be voted on by the qualified electors of the State), it is sent to the Governor for her consideration.[4] Generally, the Governor has four options when she receives a bill: sign the bill into law, offer an executive amendment, veto the bill, or allow the bill to become law without signature.[5] The Governor must sign the bill, veto the bill, or offer an executive amendment to the bill within six days (not counting Sundays) of passage by the Legislature or else the bill becomes law without a signature.[6] However, the rules are slightly different for bills passed within the five days prior to the Legislature’s final adjournment for the session.[7] The Governor has ten days—no exceptions—to sign bills that are passed within those final five days or else they are pocket vetoed.[8]
The Legislature passed hundreds of bills and resolutions during the 2019 regular session.[9] Likewise, the Legislature passed enabling legislation for a number of constitutional amendments, and the proposed amendments must now be put on the ballot to be voted on by the qualified electors of the State.[10] Governor Kay Ivey only pocket vetoed two bills due to issues found in last minute amendments tacked on by the Legislature.[11] House Bill 262, dubbed the “John-Shaming Bill,” was aimed at curbing sex trafficking by permitting the public disclosure of mugshots of those arrested for soliciting or procuring prostitution.[12] Current law prohibits the disclosure of mugshots of those arrested for prostitution without a court order.[13] The rationale for not disclosing mugshots of those arrested for prostitution is to protect potential victims of human trafficking who may have been forced into prostitution. However, on the last day of the session, Senator Tim Melson (R-Florence) amended the bill to state that post-conviction mugshots, not post-arrest mugshots, were subject to public disclosure.[14] Senator Melson’s amendment was an attempt to protect the “Johns” who have not been convicted and to protect their families from embarrassment.[15] Governor Ivey’s staff noticed two issues with the bill: first, an ambiguity in the bill’s text stemming from the Melson amendment, and second, the potential for the bill, as amended, not to accomplish its authors’ intent.[16] Based on these issues, the Governor’s staff recommended that she not sign it.[17] Governor Ivey also pocket vetoed House Bill 213 which was an attempt to make election day disclosures under the Fair Campaign Practices Act (“FCPA”) more transparent.[18] However, Senator Del Marsh (R-Anniston) offered an amendment that instead may have made the bill less transparent by pushing the due dates for FCPA filings and reports to the second day preceding an election.[19]
On the heels of a constitutional amendment passed by the voters during the November 2018 election, the Alabama Legislature made changes to its laws on abortion. That constitutional amendment declared that it is the public policy of the State of Alabama “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life”[20] and “to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”[21] The Alabama Human Life Protection Act was passed by the Legislature on May 14, 2019, and signed by Governor Ivey on May 15, 2019.[22] The Act was passed as an attempt to challenge the United States Supreme Court’s holding in Roe v. Wade.[23] The Court in Roe found that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”[24] The Court also held that the “right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[25]
The Alabama Human Life Protection Act makes it a Class A Felony for a physician to intentionally terminate the pregnancy of a woman who is known to be pregnant.[26] The term “abortion,” as defined in the Act, does not include the premature delivery of a child to avoid a serious health risk to the mother, the termination of an ectopic pregnancy, or the termination of a pregnancy when the unborn child has a lethal anomaly.[27] Physicians are not liable under the Act for terminating pregnancies due to medical emergencies.[28] There is also an exception for abortions performed when a physician determines that it is necessary to prevent a serious health risk to the mother, including mental illness if confirmed by a psychiatrist.[29] The Act does not place any criminal or civil liability on the woman whose pregnancy is terminated.[30]
Prior to the new abortion bill passed in 2019, Alabama already had an abortion ban on its books.[31] The old law made it a crime punishable by a fine of up to $1,000 and up to 12 months of imprisonment to
willfully administer[] to any pregnant woman any drug or substance or use[] or employ[] any instrument or other means to induce an abortion, miscarriage or premature delivery or aid[], abet[] or prescribe[] for the same, unless the same is necessary to preserve her life or health and done for that purpose.[32]
Even though the law has not been enforced since Roe v. Wade, the Legislature never repealed it. Unless the Supreme Court overrules Roe and its progeny, the bill passed in 2019 will have the same dormant effect.
The Legislature also addressed multiple other areas in which people had been pressing for change, including the State’s civil asset forfeiture law which adds a reporting requirement for seized property,[33] an Equal Pay law which prohibits wage discrimination based on race or sex,[34] a commission to study the effects of medical marijuana usage,[35] and changes to the process for obtaining a marriage license in the State.[36] While the Legislature accomplished many things in 2019, for better or for worse, many were expecting more action or reform in certain areas including the state’s ethics laws, enabling legislation for a potential lottery, and a response to remedy prison-condition deficiencies identified by the Department of Justice.[37]
[1] Hunt v. Hubbert, 588 So. 2d 848, 849 (Ala. 1991) (noting that the Legislature’s adjournment sine die means their “final adjournment of the session”).
[2] Adjourn Convene Report, http://alisondb.legislature.state.al.us/alison/SessAdjournConvene.aspx (last visited July 31, 2019).
[3] See e.g., William Hennelly, Alabama Puts Abortion Issue to Fore Again, China Daily Global (May 16, 2019), http://www.chinadaily.com.cn/a/201905/16/WS5cdd79cba3104842260bc1d1.html.
[4] Ala. Const. art. V, § 125.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See 2019 Legislative Acts, http://arc-sos.state.al.us/cgi/actyear.mbr/output?s=526&search=2019&btype=ALL&category=ALL&order=default&hld=&dir=&page=Y (last visited July 31, 2019).
[10] See e.g., Act of Apr. 23, 2019, 2019 Ala. Laws 63 (2019).
[11] Caroline Beck & Mary Sell, ‘John-Shaming’ Bill Pocket Vetoed by Governor, Ala. Daily News (June 11, 2019), https://www.aldailynews.com/john-shaming-bill-pocket-vetoed-by-governor/.
[12] Id.
[13] Ala. Code § 13A-6-183(a).
[14] Caroline Beck & Mary Sell, ‘John-Shaming’ Bill Pocket Vetoed by Governor, Ala. Daily News (June 11, 2019), https://www.aldailynews.com/john-shaming-bill-pocket-vetoed-by-governor/.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Ala. Const. art. I, § 36.06(a) (amended 2018).
[21] Ala. Const. art. I, § 36.06(b) (amended 2018).
[22] Act of May 15, 2019, 2019 Ala. Laws 189 (2019).
[23] Id.
[24] Roe v. Wade, 410 U.S. 133, 157 (1973).
[25] Id. at 153.
[26] Act of May 15, 2019, 2019 Ala. Laws 189 (2019).
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Ala. Code § 13A-13-7.
[32] Id.
[33] Act of Jun. 10, 2019, 2019 Ala. Laws 505 (2019).
[34] Act of Jun. 10, 2019, 2019 Ala. Laws 519 (2019).
[35] Act of Jun. 10, 2019, 2019 Ala. Laws 511 (2019).
[36] Act of May 31, 2019, 2019 Ala. Laws 340 (2019).
[37] Letter from Eric S. Dreiband et al. to Governor Kay Ivey (Apr. 2, 2019) (available at https://www.justice.gov/opa/press-release/file/1150276/download).
American Journal of Trial Advocacy 