A federal judge cited conservative Supreme Court Justice Brett Kavanaugh in a ruling that allowed lawsuits to proceed against Alabama's attorney general over his statements about prosecuting those who help Alabama residents travel to another state to seek abortions.
Alabama banned abortion at any stage of pregnancy with no exceptions for rape and incest after the Supreme Court ruled to overturn Roe v. Wade in 2022, ending constitutional protections for abortion.
The Yellowhammer Fund, an abortion-assistance organization, filed a lawsuit against Alabama Attorney General Steve Marshall last year after he said those who assisted in out-of-state abortions could face prosecution under the state's conspiracy and accessory laws. Another lawsuit was filed by the ACLU of Alabama on behalf of the West Alabama Women's Center and the Alabama Women's Center, both former abortion clinics, and an obstetrician, Dr. Yashica Robinson.
Marshall, a Republican, has filed a motion to dismiss the lawsuits, which U.S. District Judge Myron Thompson denied on May 6, citing Kavanaugh's concurring opinion in the decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe.
In his motion to dismiss the lawsuits, Marshall argued that while it is legal for a woman to travel to another state for an abortion, those who help her do so could face prosecution.
"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," Marshall's office wrote in the court filing. Newsweek has contacted his office for comment via email.
Thompson has not issued a final ruling in the case, but he wrote in a filing that the plaintiffs "correctly contend" that the attorney general "cannot constitutionally prosecute people for acts taken within the State meant to facilitate lawful out of state conduct, including obtaining an abortion."
He cited Kavanaugh's Dobbs concurrence, in which the justice wrote that the question of whether a state could "bar a resident of that State from traveling to another State to obtain an abortion" was "not especially difficult as a constitutional matter" because of "the constitutional right to interstate travel."
Alabama "can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here. In this sense, the case is not an 'especially difficult call,'" Thompson wrote.
Jenice Fountain, the executive director of the Yellowhammer Fund, said in a statement that Thompson's ruling was "a win in the right direction."
Meagan Burrows, a senior staff attorney with the ACLU Reproductive Freedom Project, said the ruling sent "a strong signal to anti-abortion politicians that their efforts to prevent pregnant people in states with bans from obtaining the help they need to access legal, out-of-state abortion care are blatantly unconstitutional."
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Khaleda Rahman is Newsweek's Senior News Reporter based in London, UK. Her focus is reporting on abortion rights, race, education, ... Read more
