Judge to rule whether Alabama can prosecute people who aid out-of-state abortions

A federal judge is expected to soon decide whether Alabama can prosecute health care providers and advocates in the state who help pregnant patients get an abortion elsewhere. 

Abortion has been almost entirely illegal in the ruby red state since its trigger law took effect following the Supreme Court’s decision to overturn Roe v. Wade in 2022. It is one of the strictest bans in the country, with no exceptions for rape or incest.

Shortly after the ban became law, Attorney General Steve Marshall (R) said he would consider prosecuting any person or group that “aids and abets” in an abortion, using the state’s criminal conspiracy law.

His remarks alarmed health providers who might counsel someone on their options for getting an abortion out of state, as well as abortion funds, which help people in need defray the costs of obtaining an abortion.

Even before Roe was overturned, abortion access in Alabama was restricted. Advocates said 1 in 5 people needed to travel out of state. Now, the entire Southeast has banned or restricted abortion, leaving people to travel hundreds of miles and navigate a complicated patchwork of laws if they want or need an abortion.

Advocates say that is why counseling patients is essential, and Marshall’s comments prevented them from doing it.

So those groups, including the Yellowhammer Fund and the West Alabama Women’s Center, separately sued Marshall to stop him from following through on his threats. The cases were eventually consolidated.

The Yellowhammer Fund said Marshall’s threats created an illegal chilling effect on the group’s freedom of expression and forced it to stop providing funds and logistical support to abortion seekers due to fear of prosecution.

“Even though I believe that providing support to pregnant Alabamians traveling to other states for abortion care is a constitutionally protected activity, I am fearful of criminal prosecution against me, my staff, and my volunteers,” Yellowhammer Fund executive director Jenice Fountain said in the lawsuit.  

Fountain said the fund “will not resume providing abortion funding and support for out-of-state abortions until we can be assured that we will not face criminal prosecution for doing so.” 

West Alabama Women’s Center, now known as WAWC, stopped providing abortions in 2022. But the lawsuit stated the group is afraid to even share information about obtaining an abortion in places where it’s still legal because it does not want to be prosecuted. 

“No Alabama law authorizes such prosecutions. Nor could it. That would be a blatant extraterritorial overreach of state power,” the WAWC lawsuit stated, arguing Marshall’s threats violate not only the constitutional right to due process, but also the right to travel and the First Amendment. 

WAWC and other clinics in the suit are represented by the American Civil Liberties Union of Alabama. The lawsuit said they are scared to even provide abortion-adjacent care such as counseling or directing women to websites where they could order abortion pills if it’s early enough in the pregnancy.  

“We are trying to deal with this thin line between performing all of the care that we can for a patient and worrying about whether our staff is going to be arrested,” said Robin Marty, executive director for WAWC.  

Marty said patients are understandably frightened and angry. Even two years later, people still don’t always know that abortion is illegal in the state, but Marty said if someone asks where they can go, her staff can’t say, because that would be considered the start of a conspiracy.

“We know that it was already extraordinarily difficult for people in Alabama to be able to get abortion, even when it was local, and now they’re being told that they have to travel multiple states, and nobody will tell them how or where or help them in the process to do that,” she said.

Marshall’s office did not respond to a request for comment.

In court filings, 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.” 

Marshall also urged the court to find that the plaintiffs don’t have standing to sue on behalf of their patients, an argument that has been used in other abortion-related lawsuits. 

“Plaintiffs’ evidence shows only arms-length relationships with hypothetical clients … and thus does not establish a close relationship indicating that plaintiffs would be ‘as effective a proponent’ as the women themselves,” Marshall argued. 

The plaintiffs in the case said they are concerned about the broader implications of Marshall’s threats if the state were to prevail in the case.

“Abortion is already illegal in Alabama. This is a step beyond that, isolating a pregnant person from the people who they might want to talk to about their options, that they might want to get help from. And that isolation is incredibly dangerous,” said Jamila Johnson, an attorney with The Lawyering Project, who is representing the Yellowhammer Fund. 

“The attorney general’s position has been a fringe position,” Johnson said. “Most attorney generals, most law enforcers in ban states, they don’t think this way. … If Yellowhammer is successful, the world remains the way that it is right now. Most states don’t think they can engage in this sort of overreach, and we’re hoping that that’s the outcome here.” 

The plaintiffs have some cause for optimism after U.S. District Judge Myron Thompson in May declined Marshall’s request to dismiss the case. 

“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,” he wrote at the time. 

If the plaintiffs win, advocates said it will send a message to other states. 

“I think it will send a strong message to extremist politicians that they cannot use the criminal laws to threaten people who are helping others access legal medical care,” said Alexa Kolbi-Molinas, deputy director of the Reproductive Freedom Project of the American Civil Liberties Union. 

“People in Alabama will still be forced to leave the state. … Those burdens are still going to be there. Alabama’s abortion ban is still going to be there. But at least people will not be threatened with criminal penalties as they try to help people access that care,” Kolbi-Molinas said.