Soon, a critical question will be answered by a federal court judge in Alabama: Can healthcare providers and advocates be penalized for assisting patients in seeking an abortion elsewhere, in a state where abortion is prohibited?
Alabama Attorney General Steve Marshall, a Republican, warned on a radio show in 2022 that groups providing financial aid for out-of-state abortions may face felony charges, shortly after the state’s abortion ban went into effect following the U.S. Supreme Court’s decision to overturn Roe v. Wade.
Health care providers and abortion funds were left unsettled by his remarks. These individuals are often the ones who guide pregnant women seeking abortions to travel out of state for the procedure. Abortion-rights advocates stress the importance of this guidance and support, as numerous states in the South have limited or outlawed abortion, leading to a complex network of contradictory laws for patients to navigate.
Marshall faced legal action from both providers and advocates who sued him to prevent him from carrying out his threat of prosecution.
The lawsuit filed by providers argues that Marshall’s promise to prosecute anyone who performs an abortion or assists in one, even if the procedure was performed in another state, is a clear violation of the First Amendment, as well as other constitutional protections such as the right to travel. According to the providers, no Alabama law permits such prosecutions, and even if there were, it would be an excessive and unlawful use of state power beyond its jurisdiction.
Despite concerns that Alabama Attorney General Steve Marshall’s interpretation of the law may make family members of women seeking abortions susceptible to prosecution, his office has not responded to requests for comment. In August, Marshall’s office filed a motion to dismiss a consolidated case, arguing that “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.”
The Yellowhammer Fund, an abortion fund, and WAWC Health Care, formerly known as West Alabama Women’s Center, among other healthcare providers, are the plaintiffs in the case. There is reason for optimism as U.S. District Judge Myron Thompson, who will preside over the case, denied the state’s request to dismiss it in May.
In his statement, he emphasized that it is not within Alabama’s power to prevent individuals from traveling to other states to partake in legal activities, just as it is not within California’s power to prohibit individuals from coming to Alabama to engage in lawful activities there.
Should the plaintiffs emerge victorious, providers and advocates would have the liberty to disseminate information about abortion options outside the state boundaries, along with financial assistance, without any fear of legal repercussions. This could potentially mark a significant triumph for abortion rights in a state that enforces one of the most stringent prohibitions in the nation, with the exception of cases involving severe health risks to the patient.
Representing the Yellowhammer Fund, Jamila Johnson, an attorney with The Lawyering Project, stated that there could be far-reaching implications if the state is permitted to employ anti-conspiracy laws against individuals who assist with travel.
She stated that people are reluctant to endanger their doctors, loved ones, and community groups they depend on in their locality. Consequently, there is a considerable amount of silence, and individuals refrain from seeking the necessary help they require.
Other states have also faced scrutiny over individuals assisting abortion-seekers travel out of state. Idaho, for instance, passed a law prohibiting anyone from helping minors cross state lines to obtain abortions without parental consent. Meanwhile, in Texas, a controversial “bounty hunter law” permits private citizens to initiate civil suits against anyone who aids residents in obtaining abortions after six weeks. However, legal experts have disputed whether this law applies to abortions performed outside the state.
Abortion funds and healthcare providers are claiming that Marshall’s remarks have caused a chilling effect, despite the fact that he has not filed any charges.
Due to Marshall’s controversial remarks, the Yellowhammer Fund has discontinued its support for abortion and has shifted its focus to providing aid for contraception and other forms of care. If someone contacts them seeking financial assistance for an abortion, they will inform them that they are unable to offer funds for such a procedure or provide a referral to another organization.
According to Kelsea McLain, the deputy director of the organization, the number of callers seeking their help has significantly decreased. In the past, she could expect to have 20 callers waiting on a Monday, but now that number has gone down. McLain estimated that the organization used to assist between 100 to 200 individuals each month.
Denying callers is a deeply personal matter for her. This is because she herself received support from an abortion fund over ten years ago when she had to end a pregnancy.
McLain emphasized the significance of receiving support and validation from someone during the abortion funding process. “Your choice is valid, and you deserve love and support through that choice,” she stated. Hearing from someone who supports you and is willing to help is crucial, according to McLain.
According to advocates, the existing obstacles to reproductive health in Alabama, one of the poorest states in the United States, are exacerbated by the risk of prosecution. The state’s maternal mortality rates are already alarming, and the ban has led to the closure of at least three labor and delivery units, with another set to close this month.
Represented by the American Civil Liberties Union, WAWC Healthcare is one of the plaintiffs in the case. While the organization used to provide abortion services, it has since shifted its focus to offer prenatal care and various forms of reproductive healthcare, including wellness exams.
According to Robin Marty, the executive director of the organization, the clinic’s doctor attends to pregnant patients who are frequently at high risk of complications. However, talks about considering abortion as an alternative are not permitted. Despite the state’s abortion ban incorporating a health exception, it remains uncertain what conditions qualify for this exemption. There is a concern that even in a medical environment, such conversations could expose healthcare providers to legal action.
Despite the possibility of a ruling in their favor, she refuses to envision what the future holds. Her guard remains up, and she is not prepared to let it down just yet.
Marty stated that their clinic used to provide abortion services in the past, but they have now ceased offering them. However, as a former abortion clinic in Alabama, they acknowledge that there are no guarantees when it comes to the state’s actions towards their organization and others like it. She emphasized that this is precisely why their lawsuit was crucial in protecting their rights.
