Fact check: In Alabama, sentencing varies for illegal abortion, rape

Sudiksha Kochi, USA TODAY
·6 min read

The claim: In Alabama, a doctor who provides a rape-related abortion gets a more severe penalty than a rapist

The Supreme Court's decision to overturn Roe v. Wade on June 24 gave states the authority to decide whether and how to regulate abortion. In Alabama, abortions are banned except in certain situations such as when the mother's life is in danger.

Some social media users are spreading an out-of-context comparison between penalties for unauthorized abortions and rape in the state.

"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 a tweet shared to Facebook via screenshot on June 27.

The tweet amassed over 45,000 likes in less than two weeks. Similar posts have spread widely on Facebook.

But the claim oversimplifies Alabama's framework for criminal penalties.

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There is no single, defined penalty for unauthorized abortion or rape in Alabama. The sentences for either offense are left to judicial discretion, varying by case based on factors such as the nature of the crime and the offender's criminal background, experts say.

USA TODAY reached out to the social media users who shared the claim for comment.

No defined penalty for abortion, rape

In Alabama, all felonies involve "a sentencing range with a minimum sentence and a maximum sentence," John Acevedo, a criminal law expert at the University of Alabama, told USA TODAY in an email.

It is up to the judge where in that range the penalty falls for a given case, taking into account factors such as the seriousness of the offense and the defendant's past criminal history, according to Acevedo. Judges will often use a manual from the Alabama Sentencing Commission that uses a point system to analyze such factors.

It is not yet clear how sentencing for conducting an unauthorized abortion compares to other Class A felonies as the Alabama Sentencing Commission has not yet provided sentencing guidelines for that offense, Acevedo said.

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House Bill 314 – which went into into effect after Roe v. Wade was overturned – states that all illegal abortions, except those done to "remove a dead unborn child," to protect a mother from a "serious health risk" or to "preserve the health of an unborn child," are considered Class A felonies. A defendant can receive between 10 and 99 years or life imprisonment, according to Alabama Code §13A-5-6.

Alabama recognizes two different levels of rape, Acevedo said. First-degree rape, which includes rape through "forcible compulsion," nonconsensual sex with a person who is "incapacitated" or sexual intercourse with a person under 12 years of age by a person over 16 years of age, is also a Class A felony, according to Ala. Code § 13A-6-61.

Any defendant convicted of first-degree rape can receive between 10 and 99 years or life imprisonment. The mandatory minimum sentence can increase to 20 years for a Class A felony if "a firearm or deadly weapon was used or attempted to be used in the commission of the felony" or if the felony was a sex offense "involving a child as defined in Section 15-20A-4."

Since the sentencing range for a class A felony is fluid, doctors who have performed a rape-related abortion might receive a higher sentence than a rapist, as the claim asserts.

"The doctor might go before one judge, who again has strong views on abortion, and the rapist might go before a different judge," Acevedo said. "And again...we've seen this throughout the country where he'll have committed rape (and) gets off with fairly light sentences."

But that might not always be the case. For example, a first-degree rapist with a prior record could get a more severe sentence compared to a doctor with a first offense under Alabama's class A felony scheme. Acevedo said that it is also unlikely the average licensed doctor has a gun conviction or prior felony convictions.

Alabama law defines second-degree rape as sexual intercourse between a person over the age of 16 and someone between the ages of 12 and 16. That is a Class B felony, for which a defendant would receive between two and 20 years behind bars. The mandatory minimum for a class B felony can increase to 10 years if a firearm was attempted or used in the offense or if the felony was a sex offense involving a child.

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Again, it's possible there could be a case where a doctor receives a longer sentence for a rape-related abortion than a rapist receives, but it is by no means guaranteed. That scenario would be more likely with a Class B rape charge given the lower range of possible time in prison compared with a Class A felony sentence for an unauthorized abortion.

"A Class B felony... increases the possibility, but again still does not require, that the doctor is sentenced to a longer term of imprisonment than the rapist," Acevedo said.

Our rating: Missing context

Based on our research, we rate MISSING CONTEXT the claim that in Alabama the penalty for a doctor who provides abortion in the case of rape is more severe than the penalty for a rapist. There is no defined penalty for abortion or rape in Alabama. Sentences for abortion and rape vary within ranges specified by statute and based on guidance provided by the state's sentencing commission, and it is up to a judge's discretion to weigh the specific factors of the case and relating to a defendant in determining a sentence.

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This article originally appeared on USA TODAY: Fact check: In Alabama, sentencing varies for illegal abortion, rape