What The Hell America!

The state of Alabama cannot prosecute groups that help people leave the state for an abortion, a federal judge ruled late Monday.

The decision — one of the first to explicitly address abortion-related travel — marks a significant victory for abortion providers and supporters. If the case is appealed, which it almost certainly will be, it will go to the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, half of whose members were appointed by President Donald Trump. 

If upheld, Alabama’s policy would have violated the U.S. Constitution’s First Amendment and its protection of people’s right to travel, Judge Myron H. Thompson wrote.

The case concerns statements made by Alabama Attorney General Steve Marshall, who threatened to leverage the state’s criminal conspiracy laws to prosecute people or organizations if they help Alabama residents travel elsewhere for an abortion. Marshall has not filed any lawsuits, but the threat has deterred some reproductive health providers from telling patients about options outside of Alabama, which has a near-total abortion ban in place. It has also stopped abortion funds, nonprofits that help cover the travel and medical costs associated with abortion, from supporting them.

That should change, at least for now, said Meagan Burrows, an attorney with the American Civil Liberties Union, which represented two reproductive health clinics among the plaintiffs in the case.

“The court’s decision today should send a strong message to any and all anti-abortion politicians who are considering similar efforts to muzzle health care providers or penalize those who assist others in crossing state lines to obtain legal abortion: Such attacks on free speech and the fundamental right to travel fly in the face of the Constitution and cannot stand,” Burrows said.

Health care providers in Alabama said they were preparing to start informing patients about their options for out-of-state abortions — which they had previously not been able to do.

“We are relieved that, with today’s ruling, we will once again be able to provide our patients and the communities we serve with the assistance that we feel ethically obligated to provide, without the threat of being thrown in jail for doing so,” said Dr. Yashica Robinson, medical director of the West Alabama Women’s Center.

The right to travel between states is protected by the U.S. Constitution. In a concurring opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade in 2022, conservative U.S. Supreme Court Justice Brett Kavanaugh explicitly argued that states could not outlaw traveling between them.

The Alabama case drew federal attention. 

“The Alabama AG’s threatened criminal prosecutions violate a bedrock principle of American constitutional law: states cannot punish their residents for traveling to another state to engage in conduct that is lawful in that state,” the Justice Department argued in a legal filing submitted August 19 under former President Joe Biden. 

Travel for abortion has soared since the Dobbs ruling. In 2023, the first full calendar year without Roe’s protections, almost 200,000 people traveled to another state for an abortion, according to the nonpartisan Guttmacher Institute, one of the nation’s largest reproductive health research organizations. 

The journey can be expensive and confusing for patients, who are often working on a tight timeline while navigating abortion laws in nearby states, figuring out which clinics have availability and finding the money for the procedure and travel. Pregnant patients have increasingly relied on support from clinics and abortion funds.

Still, abortion opponents, troubled by the rise in travel, have sought new ways to deter people from seeking care out of state — generally by targeting the organizations and individuals who support them. So far, these legal efforts have not stopped people from traveling for abortions.

In Texas, some counties have passed ordinances that would outlaw using a particular road to transport someone out of state for an abortion, but this kind of ordinance is difficult to enforce and has not directly resulted in any lawsuits. 

Some opponents have also attempted to use legal filings as an intimidation tactic, using them to seek information about abortion funds and other individuals who help people travel. Funds have challenged these efforts in court and refused to comply.

The Texas legislature is also debating a bill that would criminalize giving people money they could use to travel out of state for abortions, a provision aimed at abortion funds. 

Idaho and Tennessee have passed laws targeting abortion-related travel for minors by threatening prison time for those who help them leave the state if they don’t have a parent’s consent. In December a federal appeals court allowed Idaho’s law to take effect; Tennessee’s has been blocked by a separate judge.

Still, attempts to limit travel can have a chilling effect, deterring people who are afraid of incurring legal risk. For now, abortion funds have continued to help pay for people’s travel. In fact, some are running low on money because so many people are crossing state lines.