Alabama lawsuit over threat of prosecution for abortion help can move forward, court rules

A federal judge rejected an attempt Monday to toss a suit challenging Alabama’s attorney general’s threat to prosecute those who help with out-of-state travel for abortions, paving the way for the case to move forward and denying anti-abortion activists a win.

U.S. District Judge Myron Thompson, in a preliminary ruling Monday, said the case brought by the Yellowhammer Fund — a group that supports people who need out-of-state abortions in the Deep South — can continue its lawsuit, which argues Alabama Attorney General Steve Marshall’s (R) threats create an illegal chilling effect on the group’s freedom of expression.

The group claims it has been forced to stop operating its abortion fund out of fear of prosecution. Alabama banned nearly all abortions after the Supreme Court overturned Roe v. Wade, even in cases of rape or incest.

Last year, Marshall threatened to prosecute anyone who “aids and abets” in an abortion, prompting confusion among health care workers and groups such as the Yellowhammer Fund. This led to an “increased sense of fear and uncertainty for Plaintiff and pregnant people alike,” the group wrote in its complaint.

Thompson’s ruling, which was in response to Marshall’s motion to dismiss the lawsuit, pointed to the constitutional right to travel.

In his ruling, Thompson wrote, “Therefore, the plaintiffs here correctly contend that the Attorney General cannot constitutionally prosecute people for acts taken within the State meant to facilitate lawful out of state conduct, including obtaining an abortion.”

“The Constitution protects the right to cross state lines and engage in lawful conduct in other states, including receiving an abortion,” he added.  “The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense.”

In a related suit, a group of health providers represented by the American Civil Liberties Union (ACLU) of Alabama also sued Marshall for allegedly explicitly threatening providers with felony charges if they assist Alabama residents looking to travel out of state to obtain an abortion.

“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,” Meagan Burrows, senior staff attorney with the ACLU Reproductive Freedom Project, wrote in a statement.

The Hill reached out to Marshall’s office for comment.

Since the groups filed the pair of lawsuits last July, the state saw a fierce battle over reproductive rights after the state Supreme Court ruled frozen embryos were children and, thus, those who destroy them can be liable for death.

In vitro fertilization (IVF) services were mostly halted in the state, though lawmakers quickly passed legislation to address civil and criminal liability for IVF providers that prompted some health care providers to resume services.