One of the thorniest issues that has arisen in the wake of the Supreme Court’s decision in Dobbs—which, in overturning Roe v. Wade, devolved legal authority over abortion to the states—is whether restrictive states can prevent or deter their residents from obtaining abortion care in a state where it is legal.
Myron H. Thompson, a United States district court judge in Alabama, unequivocally ruled last month that restricting cross-border abortion travel is patently unconstitutional, in an opinion that powerfully and eloquently conveys the interconnected harms to patients and those who support them to access care.
Thompson’s opinion cuts through the noise to lay bare the catastrophic impact of abortion bans and the adjacent attempts to restrict access to legal out-of-state care.
Although the decision is of limited jurisdictional reach and subject to a possible appeal, it is clear that Thompson understands what’s at stake for abortion seekers who live in ban states, particularly if from a historically marginalized community.
Before turning to the decision, some background about the underlying case:
In May of 2019, after signing the state’s Human Life Protection Act into law, Gov. Kay Ivey issued a statement proclaiming that “this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” To safeguard these ‘sacred gifts,’ the law banned abortion subject to very narrow exceptions and subject those found guilty of violating it of a prison sentence of not less than ten years up through a possible life sentence.
Although the law was initially enjoined from going into effect in the immediate aftermath of Dobbs, the injunction was dissolved—thus allowing one of the strictest criminal abortion laws in the country to take effect.
Not content with a criminal ban on abortion within the geographical boundaries of the state, in an online radio interview, Alabama Attorney General Steve Marshall threatened to bring criminal charges against those who assisted pregnant people who were seeking access to a legal cross-border abortion.
In response to his threats, three reproductive healthcare providers—Dr. Yashica Robinson, West Alabama Women’s Center and Alabama Women’s Center—and Yellowhammer Fund, “an abortion advocacy and reproductive justice organization” (plaintiffs), brought suit against Marshall.
In a press release, the ACLU conveyed the urgent necessity of stopping Marshall from making good on his threat in the absence of which:
“… pregnant people will struggle to find out-of-state care, and the financial and logistical support they need to obtain such care. … Many will be significantly delayed in accessing the abortion care they need, and some may even be forced to give birth against their will. This could have deadly consequences for Alabamians, who are residing in a state that has the third highest maternal mortality rate in the nation, and particularly for Black women, who make up a disproportionate share of maternal deaths due to systemic racism.”
As Thompson astutely understood in his opinion, without the assistance of the plaintiffs, their clients will face significant, and potentially insurmountable, barriers to arranging legal out-of-state abortions,” particularly those who are living in poverty, have limited formal education and are without “reliable internet access and/or are not technologically savvy.”
Thompson further recognized that Marshall’s threats of prosecution disrupted the essential relationship of trust between the plaintiffs and their clients which creates “ethical obligations to provide care and recommendations appropriate for each patient’s unique circumstances.” Rooted in this ethic of care, he credited plaintiffs’ fear that they “may be exacerbating the confusion and distress that people who come to us for help are already experiencing, and contributing to potentially dangerous delays in patients accessing healthcare, putting their health and safety at risk.”
Building outwards from these identified injuries, Thompson turned to an assessment of the constitutional interests at stake in the case. In a powerful repudiation of Marshall’s effort to extend the reach of Alabama’s criminal abortion ban beyond the state’s geographical boundaries, he ruled that Marshall violated the constitutionally protected right to interstate travel—a claim the plaintiffs asserted on behalf of their clients on account of the formidable obstacles they would have faced in asserting their rights, including Alabama’s “well-established climate of stigma, harassment and violence relating to abortion”—and the right to free speech.
Grounded in the recognition that the “right to interstate travel is one of our most fundamental constitutional rights….[and] has consistently been protected precisely so that people would be free to engage in lawful conduct while traveling,” Thompson was unequivocal that “while it is one thing for Alabama to outlaw by statute what happens in its own backyard,” it has no criminal jurisdiction beyond its borders. Accordingly, it cannot punish residents and those who assist them to access out-of-state legal abortion care. In short, the protected right to travel “includes both the right to move physically between two States and to do what is legal in the destination State”—otherwise, “our freedom of action is tied to our place of origin [and] the ‘right to travel’ becomes a hollow shell.”
Turning to the right of free speech, Thompson’s reasoning reinforces the perniciousness of Marshall’s effort to extend the reach of Alabama’s criminal abortion ban by inserting himself into the relationship of trust between plaintiffs and their clients through threatened prosecutions. As he writes, this “imposes a content- and viewpoint-based restriction on speech. It restricts information and discussion about a specific subject—abortion—to forbid encouraging a specific viewpoint–access to a legal out-of-state abortion.”
Of vital importance, particularly given the economic status of those served by the plaintiffs, Thompson also ruled apropos to Yellowhammer Fund that “the act of providing funds for women to travel out-of-state to obtain a legal abortion” is “expressive conduct,” which is protected by the first amendment. Notably, as an expressive act, the funding commitment communicates the Yellowhammer’s core founding belief that “reproductive healthcare should be accessible to all”—a viewpoint that was unconstitutionally suppressed as a direct result of Marshall’s threats.
Judge Thompson’s opinion stands as a powerful rebuke to states which seek to enforce their antiabortion “values and laws” beyond their own borders. The impact of abortion support bans, as attempted here by way of threatened prosecutions, will fall most heavily on marginalized and vulnerable populations who face the greatest barriers in accessing out-of-state care, including teens who have been singled out for these kinds of restrictive measures by a growing number of states. Clearly, the criminalization of abortion support is aimed at pressuring pregnant people in ban states to bear children by way of legal fiat by isolating them from essential sources of information and material support, and should not be tolerated as a legitimate expression of a state’s authority over its residents.
The why (ICE) is pretty clear. I was really more interested in where - how widespread is this?
Because honestly, the silence is chilling. It feels like the day is being smothered in this blanket of lukewarm fear.