By Amy Yurkanin
Alabama’s attorney general has been making waves nationally with his assertion that people who help women access abortion in other states could be prosecuted as conspirators.
Former U.S. Sen. Hillary Clinton tweeted Wednesday about Attorney General Steve Marshall’s “horrific move” to restrict women’s movement, adding: “You’ve got to be kidding.” That prompted a short response from Marshall on Twitter alleging Clinton supports access to abortion up until birth.
The sudden back-and-forth concerns a lawsuit filed in federal court in July that could determine the reach of Alabama’s ban on abortion and exactly who, if anyone, could be prosecuted by the state for an abortion conducted elsewhere.
Here’s what you need to know:
The ACLU sued on behalf of women’s clinics and providers. The Lawyering Project also sued on behalf of the Yellowhammer Fund. Both lawsuits have been combined in federal court.
They challenged statements made by Attorney General Steve Marshall during an interview on a talk radio show.
What did Marshall say?
Marshall said people who assist women who travel out of state for abortions could face prosecution. Marshall acknowledged that Alabama’s law can’t prevent women from driving across state lines to areas where abortion is legal, but he said that people or groups who assist could be breaking the law.
“However, I would say that if an individual held themselves out as an entity or a group that is using funds that they are able to raise to facilitate those visits, then that’s something we’re going to look at closely,” Marshall said.
Who could that be?
The Yellowhammer Fund is an organization that supports access to abortion. Before the U.S. Supreme Court struck down the right to an abortion in its Dobbs decision last summer, the group provided funding to help women pay for abortions and travel costs. Its staff stopped those activities after the ruling and pivoted to promoting birth control and supporting low-income parents.
What does Yellowhammer Fund say?
Attorneys for Yellowhammer Fund said the threat of prosecution violates the right to free speech. In the lawsuit, they said Marshall’s comments kept the Yellowhammer Fund from speaking freely about abortion options due of fear of arrest and prosecution.
They also argue they can no longer no provide funding for Alabama women traveling out of state for abortion, impeding the free right to travel.
What’s Alabama say?
In Alabama, performing an abortion is now a class A felony. In his response to the lawsuit, Marshall said the state can treat those who assist women traveling for abortion as criminal conspirators if those plans are made in Alabama.
“The criminal conduct is the agreement (the conspiracy) itself, which is conduct that occurs in Alabama that Alabama has every right to prosecute,” Marshall’s motion said. “Thus, the legality of abortion in other States is irrelevant to whether Alabama can prosecute a conspiracy formed in Alabama. “
What’s Yellowhammer say?
Attorneys representing Yellowhammer Fund said in a motion the state cannot prosecute those who help people access legal abortion.
“Alabama’s abortion ban reaches only as far as its borders,” the motion said. “Yellowhammer Fund would not violate any law if it helped pregnant Alabamians access lawful abortion care in other states, and Defendant’s assertion that he can criminalize people who support such care offends the values of sovereignty and comity that are foundational to our constitutional structure.”
How does this affect doctors?
Marshall’s statements raise questions about the role of doctors and whether they too could face prosecution. In the lawsuit filed by owners of two women’s clinics, Dr. Yashica Robinson, an OB-GYN who provided abortions before the Dobbs decision, said she talked with out-of-state clinics to coordinate care for medically complex patients.
“Due to the threat of prosecution, Dr. Robinson and her staff no longer provide this sort of information and support, despite frequently receiving inquiries from people who are considering their pregnancy options and are interested in where and how to access abortion care in a state where it is legal, and where and how to obtain assistance in doing so, and despite continuing to see medically complex patients who are considering abortion,” the lawsuit said.
Does Marshall have support in Alabama?
Eric Johnston, an attorney who founded the Alabama Pro-Life Coalition, said the Dobbs decision didn’t neatly dvide the country into areas where abortions are legal or illegal. Complicated questions remain about how much states can regulate abortion-related conduct such as traveling and funding. Other states have also looked for ways to clamp down on abortion-related travel.
“The Alabama Pro-Life Coalition supports the AG in his position,” Johnston said.
In late October, U.S. District Judge Myron Thompson will hear arguments about whether he should dismiss the Yellowhammer Fund lawsuit.