Fed'l court rules Alabama AG's threatened abortion-fund prosecutions unconstitutional

Alabama A.G. Steve Marshall had threatened to prosecute those who help Alabamians get abortions in states where they would be legal.

Alabama Attorney General Steve Marshall’s threats to prosecute abortion funds and other helping Alabamians to obtain abortions out of state are unconstitutional, a federal judge declared on Monday in a first-of-its-kind ruling.

Marshall’s threats were unconstitutional on multiple grounds, including the right to travel and the First Amendment, U.S. District Judge Myron Thompson ruled in a 131-page opinion.

The threatened prosecutions followed the U.S. Supreme Court’s 2022 ruling overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Shortly thereafter, as detailed by Thompson, Marshall “stated that his office would exercise its authority to prosecute violations of the 2019 abortion ban and Alabama’s conspiracy laws, which could include attempts to procure an out-of-state abortion.“

Marshall specifically targeted abortion funds in later comments, saying:

[I]f any individual held themselves out ... as an entity or a group that is using funds, that they are able to raise, uh, to be able to facilitate ... those visits [to an out-of-state abortion provider] then that, uh, is something we are going to look at closely.

The Yellowhammer Fund later sued, as did three healthcare providers who wish to provide abortion-related support.

After nearly two years of litigation — including a decision last year rejecting Marshall’s request to dismiss the challenges, which was covered at Law Dork — Thompson, a Carter appointee, issued a final judgment in the case on Monday:

The ruling is important, but, as always, an appeal is likely.

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The opinion, in depth

Thompson’s lengthy opinion detailed the history of the Supreme Court’s protection of the right to travel among the states before applying it to Marshall’s threatened prosecutions.

“The right to interstate travel is one of our most fundamental constitutional rights. It cultivates national citizenship and curbs state provincialism, and thus was key to fusing a league of States into a true federal union,” Thompson wrote.

Thompson then explained the shocking nature of — and fundamental concern raised by — Marshall’s threats:

While it is true that previous right-to-travel cases have generally concerned States that discriminated against visitors from other States, this merely reflects the nature of the lawsuits that came before the courts and the extraordinary nature of the Attorney General’s actions in seeking to prevent residents of his own State from engaging in lawful conduct in other States.

Specifically, he added, “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. Travel is valuable precisely because it allows us to pursue opportunities available elsewhere.“

In short, people seeking abortions that would be legal elsewhere can do so. Ultimately, he concluded, that right protects those who seek to help them as well.

“If a State cannot outright prohibit the plaintiffs’ clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them,” Thompson wrote, noting that Marshall’s threat to abortion funds like the Yellowhammer Fund would be more than a “mere inconvenience … considering that most of the plaintiffs’ clients lack the financial resources to travel on their own.”

As such, Thompson ruled in favor of the plaintiffs on their right-to-travel claim, as asserted on their clients’ behalf.

As to the free speech claim, the plaintiffs asserted that such prosecutions would violate their First Amendment rights as an unconstitutional content—and viewpoint—based restriction on speech, specifically “informing their clients about the laws of other States, offering counseling services about treatment options outside Alabama, and coordinating with out-of-state abortion providers on their clients’ behalf.”

Thompson agreed:

The Attorney General’s threatened enforcement of Alabama’s criminal laws imposes a content- and viewpoint-based restriction on speech. It restricts information and discussion about a specific subject—abortion—to forbid encouraging a specific viewpoint—access to a legal out-of-state abortion.

Although there was a significant discussion of Marshall’s argument as to why — despite that — strict scrutiny would not apply, for current purposes, Thompson disagreed with Marshall’s arguments.

In applying strict scrutiny, he concluded quite easily that the threatened prosecutions could not pass strict scrutiny. “[B]ecause the Attorney General’s threatened enforcement is illegitimate/extraterritorial, no interest could justify it,” Thompson wrote.

As such, Thompson ruled in favor of the plaintiffs on their freedom-of-speech claim.

In a final notable ruling, Thompson also ruled in favor of one of Yellowhammer Fund’s expressive conduct claims, writing, “Yellowhammer Fund’s provision of financial assistance to or on behalf of its clients, if not outright expressive conduct, must be viewed as expressive conduct when taken in context.”

Specifically:

The Attorney General’s admission that he is targeting Yellowhammer Fund instead of individuals because the Fund’s message reaches a broader audience demonstrates that the Yellowhammer Fund’s provision of funding for legal abortions is expressive conduct when taken in context.

Thompson did not, however, find — on the factual record established in this case — that providing actual travel itself was expressive conduct.

But, as to the provision of financial assistance, Thompson found that the threatened prosecutions violate Yellowhammer Fund’s right to expressive conduct.