Judge Says Alabama Can’t Punish Helping People Go to Other States to Get Abortions
From today’s opinion by Judge Myron Thompson (M.D. Ala.) in Yellowhammer Fund v. Attorney General; he is denying the defendant’s motion to dismiss, rather than issuing an injunction, but in the process he expresses definite views about the unconstitutionality of the Alabama AG’s actions:
At its core, this case is simply about whether a State may prevent people within its borders from going to another State, and from assisting others in going to another State, to engage in lawful conduct there.
In Dobbs v. Jackson Women’s Health Org., the United States Supreme Court held that the U.S. Constitution no longer protects a right to abortion, allowing States to regulate and restrict abortions before viability. In Alabama, it is now a felony for anyone to perform or attempt to perform an abortion absent a medical emergency….
Although the plaintiffs may no longer legally coordinate abortions in Alabama, they wish to help the people they serve access abortions in States where such abortions are lawful. The plaintiffs have not done so because Alabama’s Attorney General, defendant Steve Marshall, has threatened to prosecute anyone who helps arrange abortions in other States. The Attorney General has publicly declared that Alabama law prohibits anyone from assisting or otherwise facilitating an out-of-state act that, if performed in Alabama, would constitute a crime, including performing or attempting to perform abortions. The plaintiffs would all resume providing assistance to people seeking abortions if not for the Attorney General’s threats….
The judge concluded that the threatened prosecutions would violate the right to travel:
[Plaintiffs’ right to travel claim] will not be dismissed because (a) the right to travel includes the right both to move physically between States and to do what is lawful in those States, and (b) prosecuting those who facilitate lawful out-of-state abortions, as the Attorney General threatens to do, would violate that right….
And the judge also agreed with plaintiffs that “enforcing the Attorney General’s reading of Alabama’s criminal laws, including those punishing inchoate offenses and codifying accomplice liability, would violate the freedom of speech”:
Relying on the First Amendment, the plaintiffs contend that the Attorney General cannot prosecute or threaten to prosecute those who help others obtain lawful out-of-state abortions for inchoate crimes, such as conspiracy and solicitation, as accomplices, or otherwise. They submit that Alabama’s criminal laws cannot authorize the Attorney General to act on his threats without creating an unconstitutional content-based restriction on speech, at least as applied to the speech they and their staff wish to engage in: informing their clients about the laws of other States, offering counseling services about treatment options outside Alabama, and providing material support to clients seeking abortions in States where they are lawful.
“[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'” Content-based restrictions on speech are ordinarily subject to strict scrutiny. A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.”
There are a few “narrowly limited classes of speech” that the government may regulate without having to satisfy strict scrutiny. These categories include obscenity, defamation, fraud, incitement, and, most relevant here, speech integral to unlawful conduct. The Supreme Court has described these categories as “historic and traditional” because regulations of the speech they encompass “have never been thought to raise any Constitutional problem.”
The Attorney General contends that insofar as the Alabama statutes at issue regulate speech, they reach only speech integral to unlawful conduct and need not satisfy strict scrutiny. He concedes that Alabama’s criminal laws impose a content-based restriction on speech. “[T]he content of [the] speech,” he explains, is what “causes a crime.”
He does not dispute that providing abortion
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