Judge rules Alabama can’t prosecute groups helping patients get abortions elsewhere

Reproductive rights groups in Alabama wasted no time resuming their work after a federal judge ruled late Monday that the state’s attorney general can’t prosecute – or threaten to prosecute – people or organizations who help Alabama residents seek an abortion by traveling to another state.

One of the plaintiffs, the reproductive justice nonprofit Yellowhammer Fund, wasted no time in returning to one of its core missions, to provide financial support to traveling patients.

“The decision came at about 5:30, I think we funded an abortion at 5:45 — because that’s how severe the need is, that’s how urgent it is that we get back to the work that we’re doing,” said Jenice Fountain, the executive director of Yellowhammer Fund, which advocates for reproductive justice and abortion access.

On Wednesday, the U.S. Supreme Court heard oral arguments on whether or not South Carolina can remove Planned Parenthood clinics from the state’s Medicaid program. This comes just days after Planned Parenthood received notice that the Trump administration will be withholding funding from the Title X Family Planning Program for nine of the group’s affiliates.

“We’re just seeing kind of a multiplying of conflicts where we have unanswered questions about the meaning of the First Amendment in this context, about the right to travel in this context, about due process in this context — about these sort of clashing state laws and choosing which one applies,” said Mary Ziegler, a law professor at UC Davis specializing in reproductive rights.

Alabama has one of the strictest bans on abortion in the country — with no exceptions for rape or incest. The law had already been approved by the state legislature in 2019, and remained at the ready should Roe v. Wade be overturned. It went into effect immediately when the Supreme Court did just that on June 24, 2022, in the Dobbs decision.

At the time, Yellowhammer Fund was getting about 100 calls a week from people seeking financial help with getting an abortion, Fountain said.

For more than two years, they haven’t been able to help such callers.

“The thing with the ban was it was so vague that it was incredibly hard to interpret, especially if you weren’t a person that was legally inclined,” Fountain said. “So the effect that it had, which was its intention, was a chilling effect.”

During that time, Yellowhammer continued to promote reproductive justice and maternal and infant health through community efforts such as distributing diapers, formula, period supplies and emergency contraception.

In addition to the statutory language in Alabama’s abortion ban, there were also fears stoked by Alabama’s attorney general, Steve Marshall, Fountain said.

Almost seven weeks after the 2022 Dobbs decision, Marshall said in a radio interview that groups that assist people seeking an abortion in another state could face criminal prosecution.

“There’s no doubt that this is a criminal law, and the general principles that apply to a criminal law would apply to this, with its status class A felony, that’s the most significant offense that we have as far as punishment goes under our criminal statue, absent a death penalty case,” Marshall said in the interview with Breitbart editor Jeff Poor.

“If someone was promoting themselves out as a funder of abortion out of state, then that is potentially actionable for us,” Marshall said.

Marshall was specifically referring to groups like Yellowhammer Fund, Fountain said.

“He mentioned the group from Tuscaloosa that helps people get to care, which is Yellowhammer Fund,” she said. “He all but ‘@’d us.”

Ruling addresses conflicting state laws

Yellowhammer Fund and other abortion rights groups filed the lawsuit against Marshall on July 31, 2023.

In his ruling, U.S. District Judge Myron Thompson, of the Middle District of Alabama in Montgomery, agreed with them, saying that Marshall would be violating both First Amendment free speech rights and the Constitutional right to travel if he tried to bring criminal charges.

Thompson also warned against overlooking the “broader, practical implications of the Attorney General’s threats,” in the matter of Alabama trying to enforce laws outside the state.

“For example,” Thompson wrote in his ruling, “the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama.”

Clinic staff no longer feels silenced

Another group involved in the case, WAWC Healthcare in Tuscaloosa (formerly West Alabama Women’s Center), also resumed work that had been on pause.

“We have spent the last few years worried that if we had provided any form of information to patients about where they could access a legal abortion, that that is something that the attorney general might try to prosecute us over,” said Robin Marty, WAWC’s executive director.

Before the Dobbs decision, WAWC provided abortion as part of its services. It continues to offer free reproductive health care, including prenatal care, contraception, and HIV testing.

Clinical staffers at WAWC weren’t able to even suggest to a patient that they could leave the state to get an abortion, Marty said.

“There is nothing harder than looking into somebody’s face when they are in crisis and saying, ‘I’m sorry, I just can’t help you anymore,’ ” Marty said. “That was really wearing on my staff because our job was to provide the best information possible. And to know that we could not give them the full care that they required was heartbreaking.”

With the ruling, WAWC can now offer “all-options counseling,” which includes information on how and where patients can access abortion services in other states, Marty said.

“If they do not feel like they are able to continue the pregnancy, we can tell them, ‘Okay you are this far along, so you are able to go this clinic in North Carolina, because you’re under their [gestational age] limit, or you can go to this clinic in Illinois because you’re under their limit,’ ” Marty said.

“We’ll be able to tell them exactly where they can go and even be able to help them with the referral process along the way.”

Attorney General’s office considering next steps

The attorney general could file an appeal, but at the moment, it’s unclear whether or not his office will do so. Marshall’s office did not respond to NPR’s request for an interview, but in a statement said, “The office is reviewing the decision to determine the state’s options.”

But legal expert Mary Ziegler said she’d be surprised if Marshall didn’t file an appeal, given his office’s vigorous defense in the lawsuit.

In addition, the potential political costs of pursuing that kind of prosecution may have eased, because states like Texas and Louisiana have already taken legal action regarding out-of-state abortion providers, said Ziegler, a law professor at UC Davis who specializes in the politics and history of reproductive rights.

On the other hand, the attorney general might not appeal because his office was the defendant in the lawsuit, and he might not want to draw focus to the case right now, Ziegler said.

If Marshall did file an appeal, it would go to the U.S. Court of Appeals for the 11th Circuit, which Ziegler said is a conservative-leaning appellate court.

The case could ultimately go to the U.S. Supreme Court, Ziegler said, which may have to weigh in more on abortion-related cases, like when it temporarily allowed emergency abortions in Idaho in June 2024.

“I think the take away is that the U.S. Supreme Court is going to be more involved than ever in fights about reproduction and abortion, not less, notwithstanding the fact that Roe is gone,” Ziegler said.

This story comes from NPR’s health reporting partnership with the Gulf States Newsroom and KFF Health News.