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Alabama threatens groups with prison for out-of-state abortions

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More than two years after most abortions became illegal in Alabama, the West Alabama Women's Center still receives at least five calls a day from women seeking to terminate their pregnancies.

Staff must inform callers that they no longer provide abortion services.

“And then when they're told 'no,' they say, 'Well, where do I get one?'” Robin Marty, the center's executive director, told USA TODAY. “And then we can't say anything else.”

The center fears it could trigger an investigation by Alabama Attorney General Steve Marshall, who has threatened to bring criminal conspiracy charges against organizations that help Alabama citizens get the procedure out of the state.

“We have made it clear that we will not do anything that risks any of our employees being arrested,” Marty said.

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A federal judge could soon rule on whether Marshall has the authority to do so, and the decision could have nationwide implications.

If Marshall is successful, other states that oppose abortion could follow his example. Since the Supreme Court struck down the constitutional right to abortion, the number of abortions outside of these states has increased significantly.

A defeat for abortion rights activists could spur them further ahead of the November election. Abortion access is already a top campaign issue for Vice President Kamala Harris, and the Biden administration has sided with the organizations challenging Alabama's attorney general.

The dispute could go all the way to the Supreme Court.

More: The Supreme Court has allowed emergency abortions in Idaho. Doctors say that is not enough.

While the court's 2022 decision overturning Roe v. Wade did not address the issue of out-of-state abortions, according to the majority, a conservative justice mentioned it nonetheless.

In a concurring opinion, Justice Brett Kavanaugh rhetorically asked whether a state could prevent one of its residents from traveling to another state to obtain an abortion. “In my view, the answer is no, based on the constitutional right of interstate travel,” Kavanaugh wrote.

But Alabama's attorney general says the state does not impose travel bans on the women themselves.

“It is simply a common sense provision for certain assistance in interstate travel,” Marshall wrote in a legal document.

A violation of freedom of expression and travel?

Before the state's strict abortion ban took effect, the Yellowhammer Fund offered financial and logistical support to women seeking abortions in Alabama and, if necessary, in another state.

The nonprofit had prepared for the ban by building relationships with clinics in states where abortion was expected to remain legal. The group developed referral and case management systems to respond to the expected increase in requests and planned for a larger budget and more staff, a lawsuit says.

But those plans were canceled after the attorney general warned – including in an August 2022 interview – that “if someone outside the state is posing as a funder of abortions, that is potentially a criminal offense for us.”

Yellowhammer stopped providing information and support for out-of-state abortions. The organization sued Marshall in federal court, as did the West Alabama Women's Center, a local doctor and another health clinic.

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U.S. District Judge Myron Thompson in Montgomery could make a decision any day.

Opponents argue that prosecuting a person for providing information and assistance for an out-of-state abortion would be a violation of freedom of speech and travel.

“If the attorney general's attempt to go after the abortion providers were sanctioned here, it could send a very strong and dangerous signal to anti-abortion activists in other states, who could then resort to similar attempts to impose a national abortion ban on their citizens,” said Meagan Burrows, an attorney with the American Civil Liberties Union representing the health care providers suing Marshall.

The state's attorney general counters in his briefs that Alabama's “legitimate goals of prohibiting voluntary abortions and conspiracies to obtain them cannot be achieved” if groups succeed in circumventing the ban “as long as they target people outside the state.”

Out-of-state abortions doubled

Out-of-state travel for abortion has doubled in recent years, largely due to abortion bans and restrictions states have imposed following the Supreme Court's 2022 decision striking down the constitutional right to abortion.

According to the Guttmacher Institute, nearly one in five people who had an abortion would travel to another state by 2023, compared to one in 10 in 2020.

Patients in the southern states, which have the most restrictive laws in the country, have had to cross several state lines to receive treatment. Patients in Alabama may have to travel as far as North Carolina, Virginia or Illinois to obtain an abortion.

While the West Alabama Women's Center lists numerous resources for pregnant women on its website, including those related to abortion, the center said it can do little more than direct callers there.

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“They ask us, 'Which one should I click?'” Marty said. “And we can't tell.”

Patient reactions to staff's inability to answer basic questions range from confusion to anger and depression, Marty said.

A coworker later recounted that one woman said in frustration, “If you can't help me, I'm going to try to drive my car into a tree or I'm going to pay someone to beat me up because I'm not going to have this baby.”

“And then she hung up,” Marty said.

“Testing the terrain”

The National Right to Life Committee, the country's oldest and largest anti-abortion group, is monitoring the litigation but does not support Alabama's actions.

Ingrid Duran, who works on state legislative issues for the group, expressed doubts that Alabama would win the case – and also that Marshall's approach was an effective strategy to protect the life of the fetus.

Instead, the group supports efforts to criminalize assisting minors in obtaining an abortion without the consent of a parent – inside or outside the state.

“This is more about protecting parental rights,” she said of the laws passed in Idaho and Tennessee.

But Duran said both those states' laws and Alabama's threat of prosecution are part of the anti-abortion movement's exploration of the new territory created by the end of Roe v. Wade.

“They are only testing what is permissible,” she said. “What can states do to protect unborn life?”

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