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By JOYCE VANCE
- Show Notes
Dear Reader,
On Monday, the ACLU sued Alabama Attorney General Steve Marshall on behalf of the West Alabama Women’s Center and the Alabama Women’s Center, both providers of women’s medical care and support. They sued because Alabama is trying to extend its state abortion ban beyond its borders by making it illegal for people to help Alabamians access abortion in states where it remains legal.
You’ll recall the underlying premise of the Supreme Court’s decision in Dobbs, when it upset 50 years of abortion rights. The Court said the decision about whether – and to what extent – abortion should be legal would be left up to each state. Post-Dobbs, some states have continued to permit women to make their own medical decisions, while others have imposed bans, some near-total. But even a near-total ban is not enough for Alabama, where the Attorney General has announced his intention of trotting out a never-used 1896 conspiracy provision to criminally prosecute those who assist individuals who want to travel across states lines – something we are all free, as Americans, to do – in order to obtain legal abortion care outside of Alabama.
This is the next frontier in expanding newly-permissible state bans on abortion care. The courts will have to decide whether the Supreme Court meant it when it said abortion was an issue for each state to decide for its residents. Because now that conservative states have expanded abortion bans as far as they can within their borders, the push to extend them beyond their borders is on, in lieu of a highly unpopular national ban. This is the next fight.
Alabama Attorney General Marshall threatened to prosecute people who help Alabamians travel out of state to obtain abortions where they are legal. Attorneys general in red states like Idaho, where there is litigation pending as well, and Alaska, have said they will seek criminal penalties against those who help pregnant people obtain out-of-state abortions.
Strangely, Marshall has conceded that “There’s nothing about [Alabama] law that restricts any individual from driving across state lines and seeking an abortion in another place.” And yet, he publicly made the threats to prosecute those who do and who help others to do so. That’s the heart of the concern here: making the threat chills people’s exercise of their constitutional rights. Fear about the threat of prosecution accomplishes what the state knows it cannot do constitutionally: prosecuting people for leaving or helping someone leave the state to visit another state and do something there that is entirely legal.
The Plaintiffs, who currently provide non-abortion reproductive health care to pregnant patients in Alabama, are afraid that if they provide information, counseling, or other forms of practical support to assist pregnant people who may end up going out of state to obtain care, they’ll be prosecuted as conspirators or accessories. To avoid the chill on exercise of rights to which all of this uncertainty leads, they ask the courts to clarify that Alabama cannot prosecute them for assisting Alabamians who want to travel across state lines and access legal abortion care.
Meagan Burrows, an ACLU attorney representing the plaintiffs, characterized the lawsuit this way: “Because Alabama cannot constitutionally ban abortion in states that have chosen to keep abortion legal, the Attorney General is instead trying to have the same effect by criminalizing the provision of information and assistance to Alabamians seeking to exercise their constitutional right to cross state lines for lawful abortion care. But this too is blatantly unconstitutional. We’re hopeful that the Court sees through this attempted end-run around the constitutional limits on Alabama’s power.”
One important question is whether the plaintiffs have standing to bring the case. No one has been prosecuted yet, and as students of the last Supreme Court term know, plaintiffs must have standing to sue, which means there must be an actual case or controversy for the court to resolve. While standing may not be apparent here, there is actually a strong argument the court should hear this case now. This is a classic pre-enforcement challenge, allowing the plaintiffs to challenge Alabama before it takes any enforcement action to avoid scaring people out of exercising their constitutional rights. Situations like this are why pre-enforcement of the law challenges exist.
Many of the people who need access to abortion services are low-income Alabamians who lack the resources to negotiate the patchwork quilt of abortion laws that blanket the country. They need to be able to get advice they can trust from their doctors. Depriving them of that kind of assistance realistically ends their right to travel to another state. This kind of interstate travel advice doesn’t seem to be a problem when people can take advantage of marijuana tourism. Abortion is not different. Medical professionals have a First Amendment right to provide advice, and pregnant people have a right to take advantage of it and to travel if they choose to.
In his Dobbs concurrence, Supreme Court Justice Brett Kavanaugh acknowledged the right Americans have to travel between states in this context. “For example,” he said, “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.” Alabama’s Attorney General, while paying lip service to that legal principle in one breath, seemed determined to roll it back in the next. He has said that he intends to enforce Alabama’s abortion ban to its fullest extent, which means not just in-state, but out of state, too. The plaintiffs in the newly-filed case are taking him at his word – which leaves them unable to “provide specific information, counseling, and other forms of practical support to assist individuals who are seeking to exercise their constitutional right to cross state lines and obtain legal medical care outside of Alabama” – and we should too, unless and until a court says otherwise.
The impact of Attorney General Marshall’s actions and the outcome of this lawsuit will have a ripple effect far beyond the borders of Alabama. This case may shape the contours of Americans’ rights across the country. A decision that Alabama’s Attorney General can sacrifice Alabamians’ rights on the altar of his political views will mean the same for people throughout the United States. It’s essential that the courts protect people’s rights in the face of the intransigence of states like Alabama that want to impose their own views on others.
Stay Informed,
Joyce
The Pencil Driven Life 