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Federal Judge Condemns Alabama AG’s Abortion Prosecution Warning

“The right to interstate travel is one of our most fundamental constitutional rights,” the judge said in his ruling.

Attorney General of Alabama Steve Marshall speaks to members of the press at the U.S. Supreme Court on October 4, 2022, in Washington, D.C.

A federal judge declined Alabama Attorney General Steve Marshall’s (R) request to dismiss two lawsuits, filed by an abortion fund and health care providers, challenging his threat to prosecute organizations that “aid and abet abortions.”

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

While Alabama currently has a total abortion ban on the books, the American Civil Liberties Union (ACLU) says that the “[t]he threatened prosecutions would blatantly violate numerous fundamental constitutional rights, such as the rights to free speech, due process, and to travel freely across state lines.”

According to a July press release by the ACLU, health care providers have been forced to stop offering vital information, counseling, and practical assistance to Alabamians seeking abortion care outside of the state in fear of potential felony prosecutions after Marshall’s statements.

“In states where abortion bans are in effect, the ability of local health care providers to share information and recommendations for specific, trusted out-of-state abortion care providers, as well as information about where people can obtain financial and practical support resources to access out-of-state abortion care, is essential for helping patients to obtain a full range of vital care, and is a lifeline for patients who need abortion care,” the July press release says.

In his order, Thompson quoted Justice Brett Kavanaugh’s concurrence in Dobbs v. Jackson Women’s Health Organization, the case that overturned the constitutional right to an abortion, in which Kavanaugh warned that the “the constitutional right to interstate travel” would prohibit states from prosecuting people for going out of state to access abortion care.

Thompson’s denial of Marshall’s motion to dismiss on the “right-to-travel claim, the freedom-of-speech claim (including the argument that facilitating abortions constitutes expressive conduct), the freedom-of-association claim, and the extraterritoriality claim” means that these lawsuits can move forward.

“Today, a federal district court rejected the Alabama attorney general’s attempt to dismiss our challenge to his threats to prosecute our clients for providing information and support to those seeking to travel out of state to access legal abortion,” Meagan Burrows, senior staff attorney with the ACLU Reproductive Freedom Project, said in a statement. “Today’s ruling sends a strong signal to anti-abortion politicians that their efforts to prevent pregnant people in states with bans from obtaining the help they need to access legal, out-of-state abortion care are blatantly unconstitutional.”

According to the ACLU, should Marshall have the authority to criminalize people and groups that support Alabamians’ access to abortion care out of state, pregnant people could face delays in obtaining abortions and even be forced to give birth against their will. Additionally, some Alabamians may experience deadly pregnancy complications, as Alabama has one of the nation’s highest maternal mortality rates.