DOJ Opposes Alabama's Efforts to Prosecute Helpers in Out-of-State Abortion Access

The U.S. Department of Justice (DOJ) recently supported groups aiming to stop Alabama Attorney General Steve Marshall from prosecuting people who help Alabama women get legal abortions in other states.

On August 19, the DOJ filed a brief arguing that it’s important to protect how the federal system works. They believe one state shouldn't interfere with the legal actions of another state.

The DOJ stated that Alabama's threats to use criminal conspiracy laws against those helping women travel for abortion services violate a key principle of American law. According to this principle, states cannot punish their residents for doing something in another state that is legal there.

Requests for comments were made to the Attorney General’s office and the ACLU, as well as the Lawyering Project, which represent the plaintiffs.

This case, brought by the Yellowhammer Fund and the West Alabama Women’s Center, challenges Attorney General Marshall’s statements that he might prosecute those helping with interstate travel for abortions. Alabama banned abortion in 2022 after the U.S. Supreme Court removed federal abortion rights in the Dobbs v. Jackson Women’s Health Organization case.

The DOJ’s brief supports the plaintiffs' request for a summary judgment, which could be decided soon. The state also requested a summary judgment, arguing that the plaintiffs cannot sue on behalf of their clients.

The attorney general’s office argued that groups like the Yellowhammer Fund, a nonprofit that helps with abortion access, don't have the right to travel since they aren't actual people. The DOJ disagreed, stating that the right to travel also includes helping others travel. They pointed out that organizations can assist others with travel.

The DOJ's filing claims that the right to travel is protected by the Constitution. This right includes both physically moving between states and doing what is legal in those states.

“If a state cannot outright prohibit the plaintiffs’ clients from traveling to receive legal out-of-state abortions, it cannot indirectly do so by prosecuting those who assist them,” the DOJ stated.

The federal government previously opposed Alabama's request to dismiss the case, which U.S. District Judge Myron H. Thompson denied in May, allowing the case to move forward. The U.S. argued that the right to travel between states is a fundamental American right, established as far back as the Articles of Confederation.

The DOJ concluded by urging the court to side with the plaintiffs, arguing that Alabama's threats to prosecute are unconstitutional because they violate the right to travel. They also stated that Marshall’s arguments contradict previous Supreme Court decisions.

Marshall also argued that it’s important to identify where the constitutional right to travel comes from. The DOJ responded that his argument goes against the Supreme Court’s repeated decisions not to limit the right to travel to specific doctrines or parts of the Constitution.