Alabama Wants to Criminally Prosecute Those Who Help a Woman Travel Out of State for an Abortion
Even upon hearing the news, the idea that Alabama wants to criminally prosecute those who drive or help pay for a woman to travel out of state for an abortion sounds preposterous.
We will get an early test of the Constitutional issues involved when a lawsuit filed by opponents goes before a federal district court in Alabama tomorrow to determine if the state can simply dismiss the challenge.
But Alabama is not the first jurisdiction to try barring its citizens from traveling to consider abortion decisions – that was the equally conservative Idaho– nor is it the only local government to do so.
At least four localities in Texas have done so as well, even vowing to block some local roadways, and there is pressure building in that Republican-majority state legislature to enact similar statewide criminal liability for aiding a citizen to pursue abortion out of state.
A Missouri legislator introduced a law in early 2022 that would have allowed any private citizen to sue anyone helping a state resident get an abortion, regardless of where the abortion occurred. It’s become an approach discussed at length by several national antiabortion groups.
Okay, we all accept that feelings about abortion are deeply held, and that for a substantial number of Americans, the morality questions should guide law. We have seen the Supreme Court toss out precedents to make abortion once again an issue for states, and that there is a struggle for consensus even among states that want limits or bans on abortion. At the same time, we see multiple referendum questions across the country backing the rights for individuals to pursue abortion as a choice.
What we have allowed to fester is a serious test for our non-abortion-related Constitutional rights. It is at once a measure of the fervor of anti-abortionists to insist that their views become the views of all, and a lens through which to see the right to live in a democracy as opposed any right to life.
Alabama’s Arrest Threat
In Alabama, Republican state Attorney General Steve Marshall argued in a court filing that he can file criminal charges against people who assist those getting abortion care outside the state as participants in a “criminal conspiracy” because abortion is illegal in the state.
“The conspiracy is what is being punished, even if the final conduct never occurs,” Marshall wrote in the filing. “That conduct is Alabama-based and is within Alabama’s power to prohibit.” He cited Alabama law that says a “conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.”
So is marijuana use, of course, but you don’t hear of threats to arrest people for conspiring to drive to one of the several states where recreational marijuana now is legal.
Marshall filed his argument in advance of tomorrow’s scheduled hearing in response to a lawsuit brought by Yellowstone Fund and other choice advocacy groups who see the threats of arrest as infringing on their rights of expression in offering financial or transportation help to Alabama women denied access to abortion in the state. “Alabama can no more regulate out-of-state abortions than another state can deem its laws legalizing abortions to apply to Alabama,” abortion rights group the Yellowhammer Fund has argued.
Alabama has one of the country’s strictest anti-abortion laws, making it illegal at any stage, with the sole exception being to save the life or health of the mother. Some Republican lawmakers in the state are pushing for people who get abortions to be prosecuted for murder and assault, according to Rolling Stone.
Clearly, lack of funds for poorer women already would eliminate travel to the nearest state where abortion is still legal. Criminalizing the attempt to help people make health choices crosses a line into another realm.
In Oklahoma and Texas, where nearly all abortions are illegal, the state allows lawsuits against people who facilitate with abortion access within the states’ borders.
Even setting aside the imagined circumstances for how a case would arise or how enforcement would be seen as fair or supportable under civil rights statutes, this Alabama move feels very much like adopting state-sanctioned fear to enforce a moral attitude which, while enacted, has yet to change minds.
The Debate in Texas
In Llano, Texas, city council members in the town of 3,400 listened recently as resident spoke against abortion – already barred in the state – and those who would drive l women on Llano roads to reach abortion clinics in other states. Speakers said the city had a responsibility to “fight the murders.”
What they sought was to block local roads to those seeking abortions in other states. “This really is building a wall to stop abortion trafficking,” said Mark Lee Dickson, an anti-abortion activist who has sought to stop abortion city by city for years.
There were enough questions raised to postpone a vote, but the same law has been adopted by a nearby community.
As Dickson told The Washington Post, “abortion trafficking” is the act of helping any pregnant woman cross state lines to end her pregnancy, lending her a ride, funding, or another form of support. While the term “trafficking” typically refers to people who are forced, tricked, or coerced, Dickson’s definition applies to all people seeking abortions — because, he argues, “the unborn child is always taken against their will.”
The proposal exempts the pregnant woman but targets those who help. Dickson explained that a husband who doesn’t want his wife to get an abortion could threaten to sue the friend who offers to drive her.
So far, no one has been sued under the existing “abortion trafficking” laws. Still, “The purpose of these laws is not to meaningfully enforce them,” said Neesha Davé, executive director of the Lilith Fund, an abortion fund based in Texas. “It’s the fear that’s the point. It’s the confusion that’s the point.”
The Constitution protects a person’s right to travel, but since the Texas laws can be enforced by an any private citizen, abortion rights groups have no clear government official to sue in a case seeking to block the law.
Somehow, it is hard to believe that these kind of criminalization efforts were the intended result of the Supreme Court ruling to undercut the perceived federal support for abortions under Roe v. Wade.
Blocking the road to out-of-state abortion creates more pressure on the legal challenge moving through appeals processes on the availability of abortion medications distributed through the mail. You would think that anti-abortion fervor would have been salved by getting a Supreme Court majority to undercut a national right to abortion within 20 weeks. What we are creating through criminalization exceeds reason, constitutionality, and any tradition of American individualism.