Left: Senior U.S. District Judge Myron Thompson (AP Photo/Jay Reeves.) Right: Alabama Republican Attorney General Steve Marshall (AP Photo/Patrick Semansky, File).
Alabama’s only federal judge appointed by a Democrat in decades ruled Monday that a lawsuit challenging the state attorney general’s threats to criminally prosecute people who help women travel out of state for abortions is unconstitutional.
The Yellowhammer Fund, the West Alabama Women’s Center and other abortion rights advocates have sued Republican Attorney General Steve Marshall, claiming that his threats to sue people who help individuals obtain abortions in states violate constitutional protections, including free speech and due legal process.
Marshall is known for his hard-line anti-abortion views and has indicated that he will criminally prosecute women who have abortions and will even use drug laws to secure convictions for women who take abortion pills. Marshall also supported the prosecution of those who provide medical care to transgender youth and refused to acknowledge that Joe Biden was “duly elected” while testifying against the confirmation of Supreme Court Justice Ketanji Brown Jackson.
After the U.S. Supreme Court overturned Roe v. Wade in 2022, Marshall appeared in several media outlets to promise criminal prosecution of individuals who help those who cross state lines to get an abortion.
The plaintiff groups alleged that if Marshall’s threats were carried out, they would violate constitutionally protected rights such as the right to travel, freedom of speech, fair notice, and protection against the extraterritorial application of state law.
Marshall decided to dismiss, arguing that the promised indictment would not amount to constitutional violations and asserting that the plaintiffs lacked standing to present their claims.
Senior U.S. District Judge Myron Thompson didn’t mince words on the case’s central issue.
“At its core, this case is simply about whether a State can prevent people within its borders from going to another State, and from helping other people to go to another State, to engage in lawful conduct there,” Thompson began the ruling. 98 pages. .
The judge began by methodically dismantling Marshall’s arguments against legitimacy. He rejected the claim that the plaintiff groups do not have the right to sue, noting that Marshall specifically threatened to sue any “entity” or “group” that facilitates out-of-state abortions.
Furthermore, Marshall said, the women’s center and other plaintiffs have a close enough relationship with individuals seeking abortions who would likely not obtain legal assistance in court before the end of their pregnancy — and who would likely want to protect their privacy.
Thompson focused on an argument made by Marshall against the plaintiff groups’ position: that the Dobbs decision commented, “abortion cases…ignored the Court’s standing third-party doctrine.” Thompson criticized Marshall for misreading Dobbs, which was “not a standing case” and “did not overturn any precedent [relating to standing].”
“While the Attorney General may wish that a large portion of the Court’s cases governing standing to enforce the rights of others would be overturned and that dissenting opinions would instead be binding authority, this court must respect precedent.” , wrote Thompson.
Thompson also dismissed Marshall’s argument that the plaintiffs’ entitlement to travel claims should be rejected. The judge called the right to travel “essential to the structure and character of our nation” and noted that history dating back to the Magna Carta shows a reverence for the right to travel freely.
Thompson also reminded Marshall that, in Justice Brett Kavanaugh’s concurrence with Dobbs, even Kavanaugh seemed pretty clear that the types of threats Marshall has been making are illegal.
Specifically, Kavanaugh said, “the question of whether a State may ‘prohibit a resident of that State from traveling to another State to obtain an abortion’ was ‘not especially difficult as a constitutional question’ because ‘the constitutional right to interstate travel’ would prohibit such state action,” recalled Thompson.
Marshall’s right-to-travel argument “runs counter to history, precedent and common sense,” Thompson said.
“Travel is valuable precisely because it allows us to take advantage of opportunities available elsewhere,” said the judge.
“Alabama can’t restrict people from coming to, say, California to do what’s legal there, any more than California can restrict people from coming to Alabama to do what’s legal here,” Thompson bluntly summarized. .
Thompson also rejected Marshall’s argument that the plaintiffs do not have a constitutional right to aid or advise those seeking abortions because the First Amendment does not protect criminal activity. Thompson said this argument “ignores the central issue of this case,” which is that the plaintiffs want to help people access legal abortions.
Therefore, Thompson said, Marshall’s plans to sue likely amount to an unconstitutional content-based regulation of free speech that will not survive strict scrutiny.
Thompson sided with Marshall in dismissing the plaintiffs’ claims relating to fair warning and exaggeration. However, given that Thompson allowed both constitutional claims to move forward, it seems likely that the case will go to trial.
Thompson, 77, is the last Democratic appointee to serve on the U.S. District Court for the Middle District of Alabama, having been appointed by President Jimmy Carter in 1980. He served on the court until 2013, when he assumed senior status.
