Federal judge rebukes Alabama AG's threat to prosecute providing help for out-of-state abortions

“[T]he Constitution protects the right to cross state lines and engage in lawful conduct in other States, including receiving an abortion,” Judge Myron Thompson ruled.

A federal judge on Monday rebuked Republican Alabama Attorney General Steve Marshall’s threatened prosecution of those who help people in Alabama obtain abortions out of state in a location where abortions are legal.

Although just a preliminary ruling in the cases, U.S. District Judge Myron H. Thompson rejected Marshall’s request that the court toss out a pair of lawsuits brought by an abortion fund and health care providers challenging his threatened prosecutions.

“[T]he Constitution protects the right to cross state lines and engage in lawful conduct in other States, including receiving an abortion,” U.S. District Judge Myron H. Thompson wrote in the 98-page opinion. “The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense.”

After the U.S. Supreme Court’s 2022 decision overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, Alabama’s near-total abortion ban — with severe criminal penalties for providers — went into effect. Soon thereafter, Marshall made statements asserting what Thompson characterized as a “commitment to prosecuting those who help coordinate out-of-state abortions.”

Because of those statements, the Yellowhammer Fund and West Alabama Women’s Center, Alabama Women’s Center, and Dr. Yashica Robinson — who had previously provided abortion-related care and/or support and otherwise would continue to provide assistance and recommendations to people in Alabama seeking out-of-state abortions after Dobbs — brought a pair of lawsuits, seeking declaratory and injunctive relief.

Noting the “deep historical roots” of the right to travel and additionally asserting that Marshall’s threatened prosecutions would also have “dangerous consequences for the freedom of expression,” Thompson, a Carter appointee, denied Marshall’s request that the court dismiss the lawsuits challenging Marshall’s threatened prosecutions.

Quoting Justice Brett Kavanaugh’s statement in his Dobbs concurrence that the “the constitutional right to interstate travel” would make an attempt to ban travel to obtain an abortion “not especially difficult [to resolve] as a constitutional matter,” Thompson concluded that “the plaintiffs here correctly contend that the Attorney General cannot constitutionally prosecute people for acts taken within the State meant to facilitate lawful out of state conduct, including obtaining an abortion.”

Between the plaintiffs, Thompson noted, they brought claims challenging his threatened prosecutions as violations of “the right to travel, the First Amendment, the limits on the extraterritorial application of state law, and the right to due process.”

The Biden administration also weighed in in the case in support of the right to travel claim, as reported at Law Dork in November 2023.

In Monday’s ruling, Thompson denied Marshall’s requests to dismiss the right to travel and First Amendment claims and reserved judgment on the Yellowhammer Fund’s challenge asserting limits on the extraterritorial application of state law. (Thomson also reserved judgment on Yellowhammer Fund’s right to travel claim brought on its own behalf.)

Thomson granted Marshall’s request on two claims: an obverbreadth claim brought by the Yellowhammer Fund and the due process claim, which was a fair-notice claim.

In depth

In discussing the right to travel, Thompson rejected several of Marshall’s arguments, finding that “[t]he threatened prosecutions offend two tenets of right-to-travel jurisprudence: first, that States may not act with the purpose of impeding lawful travel; and, second, that States may not outlaw assistance for otherwise lawful travel.”

Noting that Marshall’s threatened prosecutions are more severe than other restrictions struck down by the Supreme Court in the past, Thompson concluded, “There is no end-run around the right to travel that would allow States to burden travel selectively and in a patchwork fashion based on whether they approve or disapprove of lawful conduct that their residents wish to engage in outside their borders.”

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Read Law Dork’s initial report on this litigation and Alabama Attorney General Steve Marshall’s role in advancing conservative causes here.

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In the First Amendment discussion, Marshall argued that, to the extent speech is implicated, his prosecutions would reach “only speech integral to unlawful conduct and need not satisfy strict scrutiny” under Supreme Court precedent.

Not so fast, Thompson responded, “Simple as this argument seems, it ignores the issue at the heart of this case: that the plaintiffs and their staff wish to help their clients access abortions in States where abortions are lawful.”

After some discussion of the limits to the exception relied upon by Marshall, laid out in Giboney v. Empire Storage & Ice Co., Thompson ultimately concluded, “The court cannot accept the Attorney General’s expansive interpretation of Giboney, which would have dangerous consequences for the freedom of expression.”

Because of what he described as the “novel” nature of the extraterritoriality claim, which rests not on prosecution of out-of-state conduct but rather on “those who facilitate out-of-state conduct,” Thompson declined ruling on that motion to dismiss at this time.

Finally, Thompson dismissed the fair-notice claim primarily because the prosecution has not yet been successful. Even assuming that, as the plaintiffs argue, the prosecution would be unprecedented and indefensible, Thompson noted that under applicable precedent, “It is only if the court adopts the prosecution’s unexpected and indefensible interpretation of the law, and the defendant is convicted does a fair-warning issue arise.” In other words, under the applicable law, a fair-notice claim “generally” does not result from a prosecutor’s charge, but rather from a court’s conviction.

Yellowhammer Fund’s motion for summary judgment remains pending.