A federal district court ruled Monday that the Alabama attorney general can't prosecute people in Alabama for going to another state, or assisting others in going to another state, to obtain an abortion.
The ruling strikes a significant blow to a state effort to enforce its own abortion ban beyond its borders.
The case, Yellowhammer Fund v. Attorney General, arose when the Alabama attorney general announced that he'd prosecute people in Alabama for going to another state, or assisting others in going to another state, to obtain an abortion. The state AG seemed to adopt a theory that these individuals violated a state law criminalizing a conspiracy to engage in out-of-state conduct that, if done in the state, would be illegal. Abortions are now illegal in Alabama, except in an emergency. The full docket is here.
Plaintiffs sought declaratory relief and a permanent injunction. The court declared that the AG's use of the criminal code violated the right to travel and the First Amendment. It then said that it'd "retain[] jurisdiction to issue an injunction to enforce the declaratory judgment and to provide other relief, should such become necessary." (It also said that "costs are taxed against defendant . . . .")
The court first concluded that the AG's action violated the right to travel of the clients of a plaintiff-organization and a doctor. "The court finds that the claim is meritorious because (a) the right to travel includes the right both to move physically between States and to do what is lawful in those States, and (b) prosecuting those who facilitate lawful out-of-state abortions, as the Attorney General threatens to do, would violate that right."
The court next concluded that the AG's "threatened enforcement of Alabama's criminal laws imposes a content- and viewpoint-based restriction on speech," in violation of the First Amendment. That's because "[i]t restricts information and discussion about a specific subject–abortion–to forbid encouraging a specific viewpoint–access to a legal out-of-state abortion." (In other words, organization can't inform individuals of their out-of-state abortion options.) As to strict scrutiny analysis, the court said that the state's interests aren't compelling; but even if they were, "[t]hreats of prosecution cannot serve a State's legitimate interest when the State does not have legitimate authority to punish lawful behavior conducted in other States."
Finally, the court concluded that some of the organizational-plaintiff's actions were protected by the right to expressive conduct. As to funding, "the court finds that Yellowhammer Fund's act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection." But on the other hand, "Yellowhammer Fund's physically transporting pregnant women out of state to abortion appointments does not constitute expressive conduct under the First Amendment."
The court declined to address certain other claims, including free association and due process.