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In Alabama, performing or attempting to perform an abortion is a felony, absent a "medical emergency." As a result, many women in Alabama are traveling out of state to get the healthcare they need. But just banning abortion in Alabama was not good enough for Attorney General Steve Marshall (R), who wants to control women even when they are out of his jurisdiction. So, he decreed that he would prosecute anyone who assisted women in his state with obtaining a legal abortion in another state.
In response, pro-choice organizations and reproductive healthcare providers sued because they can no longer assist patients or provide information about obtaining a legal abortion out of state for fear of prosecution. On Tuesday, U.S. District Judge Myron Thompson granted summary judgment in the plaintiffs' favor and held that a state cannot "[punish] its citizens and others who help individuals travel to another State to engage in conduct that is lawful there." The Court ruled that the AG's action violates the constitutional guarantees of the right to travel and free speech.
The right to travel derives from Article IV's privileges and immunities clause, the Commerce Clause, the due process clause of the Fifth and Fourteenth Amendments and the Fourteenth Amendment's privileges and immunities clause. And it includes not just the right to travel between states but also the right to engage in legal conduct in other states. Interestingly, the Court cited cases from the 1970's in which the Supreme Court struck down state laws that also sought to restrict travel for out-of-state abortions. For example, in 1975, the Supreme Court struck down a Virginia law that attempted to prosecute women traveling to New York for an abortion: "[t]he Virginia Legislature could not ... prevent its residents from traveling to New York to obtain [abortion] services or ... prosecute them for going there." And none other than Justice Kavanaugh cited the right to travel in the Dobbs decision to allay any concerns that a state would attempt to prevent its residents from seeking out-of-state abortions, because '"the constitutional right to interstate travel' would prohibit such state action." Isn't that cute?
The Court compared the AG's action with prohibiting Alabamians from coordinating travel to Las Vegas for a bachelor party because gambling is prohibited in Alabama. But there's an even easier analogy—anyone who's lived in the South knows that some states prohibit the sale of alcohol on Sundays, but if you're close to a neighboring, heathen state, you can just hop on over and get your six-pack there. Imagine the uproar if the AG tried to prosecute someone who drove their cousin (whose license has been suspended) from Mobile to Pensacola to get their pint of whiskey on the Lord's day.
The Court also found that the AG's threatened actions violate the First Amendment, which prohibits viewpoint discrimination without any sufficient justification. Marshall "has advanced no governmental interest, let alone a compelling one, in regulating medical care beyond Alabama's borders." In fact, the AG's alleged interests in supporting maternal health and safety and preserving the integrity of the medical profession "support allowing those who seek to obtain a legal abortion out of state to receive information and counseling from trusted medical providers about the safest, reliable places to obtain such care." The Court concluded that "It is one thing for Alabama to outlaw by statute what happens in its own backyard. It is another thing for the State to enforce its values and laws, as chosen by the Attorney General, outside its boundaries by punishing its citizens and others who help individuals travel to another State to engage in conduct that is lawful there but the Attorney General finds to be contrary to Alabama's values and laws."
This decision has implications for states like Texas and Louisiana that are trying to reach beyond their borders to prosecute out-of-state doctors who prescribe abortion medication online. And Idaho and Tennessee have made it a crime to help minors get an out-of-state abortion without their parent's permission. As the ACLU notes, "This should send a strong message to antiabortion politicians in states with bans [that] any attempt to prevent their residents from traveling to obtain entirely legal reproductive health care will not stand." (L)