Federal judge blocks Alabama from prosecuting those aiding out-of-state abortion travel
A shot of cards on a table at West Alabama Women's Center in Tuscaloosa, Ala., on Friday, Feb. 10, 2023. U.S. District Judge Myron Thompson ruled Alabama's AG cannot punish residents for aiding out-of-state abortion care. (Vasha Hunt for Alabama Reflector)
A federal judge Monday ruled that Alabama Attorney General Steve Marshall cannot prosecute people who assist individuals seeking to leave the state to obtain abortion care.
U.S. District Judge Myron H. Thompson Monday ruled in a 131-page opinion that the AG's threatened enforcement of the state's criminal laws to prosecute those who assist individuals seeking to leave the state for abortion care violates both the First Amendment and the right to travel.
'At its core, this case is simply about whether a state may 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,' Thompson repeated from his ruling in May denying the AG's motion to dismiss and added, 'The court now answers no, a state cannot.'
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The lawsuit was filed by Yellowhammer Fund; WAWC, formerly the West Alabama Women's Center; Alabama Women's Center (AWC) in Huntsville and Dr. Yashica Robinson, after Marshall in 2022 publicly threatened to criminally prosecute those who assist women seeking to travel out-of-state to get an abortion under Alabama's near-total abortion ban. Marshall's office later defended his power to do so in a court filing in August 2023.
'An elective abortion performed in Alabama would be a criminal offense; thus, a conspiracy formed in the State to have that same act performed outside the State is illegal,' the filing stated.
Amanda Priest, a spokesperson for the Attorney General's office, wrote in an email that 'the office is reviewing the decision to determine the state's options.'
Alabama has had an effective ban on abortion since the U.S. Supreme Court struck down federal abortion rights protections in 2022.
Thompson ruled that the attorney general's threats violated the plaintiffs' clients' right to travel. He said in the ruling that the right to travel includes the right both to move physically between states and to do what is lawful in those states, and prosecuting those who facilitate lawful out-of-state abortions would violate that right.
The court also found that the attorney general's threatened enforcement of Alabama's criminal laws imposes a content- and viewpoint-based restriction on speech, which violates the First Amendment.
'The attorney general has presented no other reason to deny the plaintiffs' First Amendment claim besides his attempt to invoke the Giboney exception, which, as stated, does not extend to speech in furtherance of lawful out-of-state conduct,' Thompson wrote.
The Giboney exception would restrict speech that is directly part of or essential to committing a crime.
'Since the attorney general's threatened enforcement cannot meet strict scrutiny, the court will enter summary judgment in favor of the plaintiffs for this freedom-of-speech claim,' Thompson concluded.
Thompson, in his conclusion, cautioned against the implications of the attorney general's threats, writing that it is 'one thing for Alabama to outlaw by statute what happens in its own backyard. It is another thing for the state to enforce its values and laws, as chosen by the attorney general, outside its boundaries by punishing its citizens and others who help.'
'If Alabama held the power its Attorney General asserts here, it is hard to envision a limiting principle besides what the Attorney General personally sees as permissible and impermissible,' he wrote.
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