Federal judge could rule soon on Alabama lawsuit over threats of prosecution to abortion aid

A shot of cards on a table at West Alabama Women’s Center in Tuscaloosa, Ala., on Friday, Feb. 10, 2023. A federal judge Tuesday allowed a lawsuit seeking to prevent Alabama Attorney General Steve Marshall from prosecuting assistance for out-of-state abortion care to proceed. (Vasha Hunt for Alabama Reflector)

A lawsuit aimed at stopping Alabama from potentially prosecuting those who help Alabamians seek out-of-state abortion care could soon reach a resolution.

A round of briefing concluded on Monday, with plaintiffs — who include Yellowhammer Fund; Alabama Women’s Center and WAWC, formerly West Alabama Women’s Center — reiterating an argument that Alabama Attorney General Steve Marshall’s threats to prosecute those who assisting women in obtaining out-of-state abortions violate constitutional rights to free speech, travel and association.

“Having conceded that pregnant people are free to leave the state for abortion care on their own, and making no argument that Alabama has the power to criminalize the provision or receipt of abortion in another state, it follows that the only purpose Defendant’s threats serve is to inhibit lawful travel to obtain lawful medical care,” stated attorneys for the plaintiffs in a Monday filing.

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The office of the Attorney General, the defendant in the lawsuit, and plaintiffs have both requested a summary judgment. The plaintiffs say the lawsuit can be resolved based on the constitutional violations claimed, while Marshall’s office says their argument demonstrates that the legal issues are clear and the plaintiffs lack standing.

It’s unclear when U.S. District Judge Myron H. Thompson will rule.

The lawsuit challenges Marshall’s prior statement in which he said Alabama’s abortion ban can be applied to criminalize those who aid conduct that occurs outside the state. Marshall has stated that because abortion is illegal in Alabama, “a conspiracy formed in the State to have that same act performed outside the State is illegal.”

“Plaintiffs identify no constitutional provision that would bar the State from enforcing that law,” the attorney general wrote in a previous motion.

Plaintiffs claim that Alabama’s actions infringe on their First Amendment rights. They argue that providing information, funding, and logistical support for out-of-state abortions is a form of protected expressive conduct and association. The plaintiffs also assert that the Attorney General’s threats penalize interstate travel by targeting those who assist women seeking legal abortions in states where the procedure is permitted.

Alabama Attorney General doubles down on threats to prosecute out-of-state abortion care

In their filings, the plaintiffs maintain that the state’s abortion ban, which only applies to procedures performed within Alabama, cannot constitutionally be extended to penalize activities in other jurisdictions. They argue that such extraterritorial application violates the principles of a federal government and due process.

Marshall’s office argued that the plaintiffs lack standing to bring these claims on behalf of their clients and that following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, third-party standing in abortion-related cases should be more restricted. Marshall contends that plaintiffs do not have a sufficiently close relationship with the individuals they seek to help and that there are no significant obstacles preventing those individuals from asserting their own rights.

“Plaintiffs’ evidence shows only arms-length relationships with hypothetical clients that involve ‘an incidental congruity of interests,’ and thus does not establish a close relationship indicating that plaintiffs would be ‘as effective a proponent’ as the women themselves,” Marshall’s office stated.

The attorney general’s office also wrote in the filing that Alabama has an interest in enforcing its abortion laws to protect unborn life and maternal health. He argues that any agreements formed in Alabama to facilitate out-of-state abortions can be prosecuted under state conspiracy laws without infringing on constitutional rights.

Thompson had previously denied a motion to dismiss the case . In earlier rulings, he said plaintiffs had standing to bring their claims and indicated that if they could substantiate their allegations, they might prevail.

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