A federal judge said May 6 that Alabama would be violating the Constitution if it prosecuted organizations seeking to help women obtain out-of-state abortions.
Two pro-abortion organizations—Yellowhammer Fund and West Alabama’s Women Center—are suing Attorney General Steve Marshall after he indicated during an interview that individuals could be prosecuted if they facilitate out-of-state abortions that are illegal in Alabama. The state has one of the most restrictive abortion laws in the country, making it a felony for anyone to perform an abortion absent a medical emergency.
In a preliminary ruling, U.S. District Judge Myron Thompson, an appointee of President Jimmy Carter, allowed the organizations’ lawsuit to proceed while dismissing two of their claims against the attorney general’s office.
Judge Thompson allowed claims about free speech and the right to travel to proceed.
Post-Dobbs Abortion Landscape
The case touched on a contentious area of U.S. law following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade. In doing so, it allowed states to impose a variety of restrictions on abortion, creating a patchwork of access across the United States.The ruling has raised questions about how women might access abortion when their unborn child’s gestational age exceeds the limit for abortions in a their respective states.
Judge Thompson’s ruling quoted Supreme Court Justice Brett Kavanaugh, whose concurring opinion in Dobbs argued that the decision didn’t foreclose interstate travel.
“As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Justice Kavanaugh wrote. “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Judge Thompson wrote that the case before him was “simply about how a State may not prevent people within its borders from going to another State, and from assisting others in going to another State, to engage in lawful conduct there. Alabama can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here.”
He withheld judgement on whether the Yellowhammer Fund organization enjoyed a right to travel but said prosecution would violate Yellowhammer Fund clients’ right to travel.
Interstate Travel
Mr. Marshall’s motion to dismiss pointed to Alabama’s criminal code, which states that a “conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.”His motion added that “it is well settled that speech used to conduct a crime receives no constitutional protection; the same is true for the right to associate.”
In his ruling, Judge Thompson said the attorney general couldn’t regulate speech in furtherance of an act that would be lawful in another state.
Idaho passed a similar law that prevents individuals from helping a minor cross state lines to obtain an abortion. A federal judge halted it in November.
