Federal judge hears arguments in lawsuit over Alabama AG's threats to prosecute abortion aid

Yahoo

05-03-2025

A sign outside the Frank M. Johnson Jr. Federal Building and United States Courthouse in Montgomery, Alabama seen on January 24, 2023. A federal judge heard arguments Wednesday in a lawsuit over Alabama Attorney General Steve Marshall's threats to prosecute groups helping Alabamians obtain out-of-state abortions. (Brian Lyman/Alabama Reflector)
A federal judge on Wednesday heard oral arguments in a lawsuit seeking to stop Alabama officials from prosecuting groups and individuals who help residents travel out of state to obtain abortions.
The lawsuit, filed by Yellowhammer Fund, West Alabama Women's Center and others, cites comments made by Alabama Attorney General Steve Marshall in 2023 suggesting that organizations aiding out-of-state abortions could face criminal conspiracy charges. The plaintiffs argue that such threats violate their constitutional rights to free speech, association and interstate travel.
During the hearing, U.S. District Judge Myron Thompson pressed both sides on the scope of the state's authority to enforce Alabama's abortion ban beyond its borders and constitutional protections for organizations that support abortion access.
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Jamila Johnson, representing Yellowhammer Fund, said the organization's activities — including providing financial assistance, arranging transportation and accompanying patients — are forms of protected speech and association.
'That would include … accompanying someone to their appointment, making sure that someone has the ability to get to an appointment, providing them oral support and upholding their dignity to make their own decisions, and the funding of the abortion itself for those who are unable to afford to do so,' Johnson said.
Johnson said that the organization also asserts its own First Amendment rights, not just those of its clients, but the organization itself.
'Yellowhammer, as a nonprofit, has the ability to assert a right to travel claim,' she said. 'One of the issues we have always had is that when we put specific staff members [forward], we end up targeting them in some manner, which we try to avoid doing when possible.'
Attorneys for the state argued that logistical support like funding and transportation is not inherently expressive conduct and falls outside First Amendment protection.
Alabama Attorney General doubles down on threats to prosecute out-of-state abortion care
'We certainly don't dispute the intent to convey a message,' said Dylan Baldwin, an attorney with the Alabama Attorney General's office, adding that those actions alone aren't speech, and without explanation, people wouldn't see them as a clear message
Baldwin said that other entities, such as insurance companies or individuals, provide funds for abortions without that act itself being considered expressive.
'The messages become apparent only by them explaining that it's about a message of love and solidarity and support,' he said.
Johnson pushed back, saying the conduct must be considered within its full context.
'The First Amendment has never said that speech has to go to 10 people or 20 people. You have a First Amendment right to speak to one person if you needed to,' she said.
Thompson also questioned the state about its position on whether Alabama could prosecute individuals who help loved ones obtain out-of-state abortions.
'Would a husband who drove his wife to Georgia to get an abortion… could [he] be prosecuted under this?' Thompson asked lawyers for the state.
Charles McKay, an attorney with the attorney general's office, said that the scenario is different because of three reasons: Alabama doesn't have a strong interest in prosecuting loved ones; the act is done in private versus in public and its scale.
'I think this case is quite different, because we do have organizations that are holding themselves up publicly as providing a whole manner of support for abortion,' McKay said.
Thompson indicated he aims to issue a ruling soon and questioned whether, if he rules for the plaintiffs, a declaratory judgment would be sufficient or whether a permanent injunction is necessary.
'We think that a permanent injunction is appropriate in this case in addition to a declaration,' said Megan Burrows, an attorney representing WAWC, formerly known as the West Alabama Women's Center, adding that this case isn't about challenging the text of an Alabama law itself but specific threats from the attorney general to apply Alabama's criminal laws in ways they were not intended.
Thompson asked both parties to submit additional filings on the question of remedies within the next two days.
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