Alabama has the power to prosecute people who help women leave the state to get an abortion, according to a new filing from Attorney General Steve Marshall.
Marshall has challenged a lawsuit filed by two pro-abortion groups, the American Civil Liberties Union and the Yellowhammer Fund, against the state. The AG has asked the United States District Court for the Middle District of Alabama to dismiss the lawsuit.
In his Motion to Dismiss, Marshall pointed out that the plaintiffs are not challenging the constitutionality of the state’s broad ban on abortions.
“Instead, they argue that because some other States allow such abortion, Plaintiffs have a right to conspire with others in Alabama to try and have abortions performed out of state, “ wrote Marshall. “Plaintiffs are mistaken.”
“Prosecuting someone for forming a conspiracy in Alabama is not an extraterritorial application of Alabama law simply because the planned conduct is to occur beyond State lines,” he continued. “Plaintiffs assert that there is some difference because the object of their conspiracy is legal where it might occur. But they don’t explain why that makes any constitutional difference, and it doesn’t.”
“The conspiracy is what is being punished, even if the conduct never occurs,” wrote Marshall. “That conduct is Alabama-based and is within Alabama’s power to prohibit.”
Yellowhammer and the ACLU have argued that the attorney general “specifically [targets] helpers” and that the state has “no power to criminalize lawful activity that takes place in other states.” They claim Marshall violated the First Amendment when he said groups or funds that promote women traveling out of state to get abortions could potentially be investigated for conspiracy or accessory charges during an interview on a radio show.
“Abortion funds do more than simply provide aid. They send a message of solidarity to those who are persecuted by the State of Alabama for seeking to control their reproductive health,” said Yellowhammer Executive Director Jenice Fountain in a press release on July 31. “The attorney general objects to that message and has targeted us and those who wish to help pregnant people leave the state for lawful abortion care.”
Hours after Marshall filed his motion in Alabama, California Governor Gavin Newsom voiced his opposition.
“California will NOT cooperate with any state that attempts to prosecute women or doctors for receiving or providing reproductive care,” he wrote in a message on X. California will NOT cooperate with any state that attempts to prosecute women or doctors for receiving or providing reproductive care. https://t.co/tZBYXie1Ss
— Gavin Newsom (@GavinNewsom) August 31, 2023
“We aren’t asking for your permission,” Marshall replied, per AL.com. “Alabama will not permit abortionists to defy our laws and enrich themselves by marketing hopelessness to women.”
Alabama adopted the Human Life Protection Act in 2019, defining a fetus as a legal person. While women who undergo an abortion are not considered civilly liable or criminally culpable, the law makes performing an abortion a felony. Abortion can be performed if the fetus has a “lethal anomaly” that would lead to a stillbirth or death shortly after birth or in the case of a “serious health risk” to the mother.
“The legislation also specifies that it isn’t enough for the mother to have an ‘emotional condition’ or mental illness – a second doctor would need to agree that the mother has a ‘serious mental illness’ that could cause her or the fetus to die,” noted Time Magazine.
