Federal judge blasts threat by Alabama to prosecute groups aiding out-of-state abortions

A federal judge smacked down a series of threats by Alabama’s Republican attorney general to prosecute groups that help women obtain out-of-state abortions, wading into a debate over access to the procedure that has lingered since the Supreme Court overturned Roe v. Wade two years ago.

The plaintiffs, including a group called the Yellowhammer Fund that helps women obtain out-of-state abortions, sued Alabama Attorney General Steve Marshall after he suggested prosecution might be possible for groups that “aid and abet abortions,” including by helping women travel out of state.

That issue has been closely watched by advocates on both sides of the abortion debate as red states across the country ban or severely limit access to the procedure in the wake of the Supreme Court’s decision to overturn Roe. That has forced many women seeking an abortion in a clinical setting to cross state lines.

“The right to interstate travel is one of our most fundamental constitutional rights,” US District Judge Myron Thompson wrote in a preliminary ruling late Monday.

“Alabama can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here,” Thompson wrote.

The suits were brought not by women seeking an out-of-state abortion but rather by groups that intend to help them. Thompson, appointed to the bench by President Jimmy Carter, wrote that a patient’s right to travel was “inextricably bound up” with those groups. Collectively, he wrote, the groups receive as many as 95 inquiries each week asking about the availability of out-of-state abortions.

“The Constitution protects the right to cross state lines and engage in lawful conduct in other states, including receiving an abortion,” Thomson wrote in a decision that will allow the lawsuit to proceed. “Travel is valuable precisely because it allows us to pursue opportunities available elsewhere.”

A spokeswoman for Marshall did not immediately respond to a request for comment.

Even before the Supreme Court overturned Roe in 2022, abortion rights groups warned that some states might attempt to limit out-of-state travel for the procedure. Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, nearly two dozen states have banned or heavily limited access to abortion.

Florida’s six-week abortion ban took effect last week, for instance, cutting off access to the procedure in most of the southern United States. Alabama has banned abortion with no exception for rape or incest.

“I think we will see statements like these increase as attorneys general and other state actors try to extend their own abortion politics and policies across state lines,” said Temple University Beasley School of Law Dean Rachel Rebouché. “This is the world Dobbs created – one of intense interstate conflict.”

The Supreme Court’s majority opinion in Dobbs didn’t deal with out-of-state travel.
But Justice Brett Kavanaugh, a conservative who joined the court’s 5-4 majority to overturn Roe, wrote separately to suggest that the question wasn’t an “especially difficult” one to decide.

“As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Kavanaugh wrote. “For example, may a state bar a resident of that State from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

Access to abortion medication, another option for women in states that ban the procedure, is also facing a legal challenge. The Supreme Court this year is considering a suit by conservative doctors and advocates who say the Food and Drug Administration overstepped its authority by expanding access to the abortion pill mifepristone.

The Alabama groups were represented by the American Civil Liberties Union.

The decision “brings us one step closer to ensuring that healthcare providers can fulfill their ethical duties to their patients and to establishing that pregnant Alabamians can access comprehensive information about their legal healthcare options.,” said Alison Mollman, legal director of the ACLU of Alabama.

This story has been updated with additional information.

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