A bellwether test of states’ ability to prosecute people over abortions that take place across state lines faces a critical hearing on Wednesday, when Alabama abortion rights supporters square off against the state attorney general over his threats to prosecute groups that help women travel for the procedure.
In the months after the US supreme court overturned Roe v Wade in 2022, clearing the way for Alabama to ban virtually all abortions, Alabama attorney general Steve Marshall repeatedly suggested that abortion rights activists who help people go out of state for abortions could be charged as participants in an illegal conspiracy. The Yellowhammer Fund, an abortion fund that helped people pay for the procedure, and the West Alabama Women’s Center, a former abortion clinic that pivoted to providing services like miscarriage management, joined with other abortion rights advocates to sue Marshall over his comments.
Now, experts worry that a victory for Alabama could serve as a green light for other states’ efforts to attack people who want to end their pregnancies but live in states that ban abortion.
“If you go to Las Vegas to gamble, but your state doesn’t permit it, you don’t expect for your AG to suggest that anybody who helped you gamble in another state is going to be prosecuted, fined, and jailed,” said Rachel Rebouché, an expert in reproductive health law and the dean of Temple University’s law school.
“It’s a real encroachment on what we take for granted about how states treat each other – but also within the state, that the state will turn its law enforcement power against somebody who has done something that is not illegal.”
Since Marshall’s threats, the Yellowhammer Fund has stopped paying for people’s legal, out-of-state abortions, while the West Alabama Women’s Center is unable to help patients looking for out-of-state abortions, according to court documents. The plaintiffs in the case collectively receive about 95 questions each week from people looking for abortions outside Alabama.
“The majority of our clients’ patients are poor or low income. They are people who may depend on financial assistance and support in figuring out how to get the resources they need to pay for travel,” said Meagan Burrows, a senior staff attorney at the ACLU, which is representing West Alabama Women’s Center (now known as WAWC Healthcare).
“All of these patients are coming to our clients very distressed, very confused about the legal landscape and their legal options, and are rightly contacting local healthcare providers in Alabama that they trust, who they know have all of the information and resources at their fingertips by virtue of being providers of reproductive healthcare, and former abortion care providers. And our clients have to turn them away.”
The attorney general’s office did not immediately respond to a request for comment. But in court filings, it doubled down on Marshall’s claims. “An elective abortion performed in Alabama would be a criminal offense; thus, a conspiracy formed in the state to have that same act performed outside the state is illegal,” one brief read.
The hearing on Wednesday, in federal court in Montgomery, will deal with requests from both sides for summary judgment, or to move forward without a full trial.
Despite the downfall of Roe, which unleashed a wave of abortion bans across much of the US south and midwest, US abortions have increased in recent years. That rise, abortion rights supporters say, is due in large part to travel, as abortion clinics on the coasts have performed a growing number of procedures on women fleeing states with bans.
In response, anti-abortion activists have begun to test out various ways to attack out-of-state abortion travel, including by limiting talk of it. In Texas, an activist has drawn abortion funds, which help people travel out of state for abortions, into litigation and asked them to turn over information about past abortions. Idaho and Tennessee have passed laws that ban “abortion trafficking” – which they define as transporting a minor for an abortion without parental consent – as well as “recruiting” minors for abortions. A court has blocked the “recruiting” provision in Idaho’s law, citing first amendment concerns, while another court has paused the enforcement of Tennessee’s entire law.
“With criminal penalties for helpers, penalties for providers, what you see are anti-[abortion] rights politicians attempting to stop anyone who is helping a pregnant person or pregnant people from seeking care,” Elisabeth Smith, the director of state policy and advocacy for the Center for Reproductive Rights, told the Guardian last year. “The pregnant person, essentially, would be isolated and unable to seek the care that they want and need.”
Abortions have also risen thanks to the emergence of blue-state “shield laws”, which aim to protect providers who dispense medication abortion pills across state lines. Abortion opponents have, in recent weeks, targeted those providers, too. Louisiana has indicted a New York doctor for allegedly dispensing an abortion pill, while Texas has filed a lawsuit against the same doctor.
Mary Ziegler, who studies the legal history of reproduction, sees all of these efforts as intertwined. “It’s part of a broader set of issues about when states can project their power across their borders,” Ziegler said.
Regardless of the outcome of Wednesday’s hearing, red states appear to already be on a warpath. “Attorneys general are just going full speed ahead, even when it comes to out-of-state defendants,” said Ziegler, a professor at the University of California, Davis, School of Law. “I think the gloves came off after the election was over.”
A ruling in the requests for summary judgment is expected in the coming weeks.
