Alabama health care providers seek to prevent prosecution of out-of-state abortion care
Abortion is almost entirely illegal in Alabama, and abortion rights advocates are working to make sure those who help patients lawfully obtain the procedure out of state don’t face legal repercussions.
Health care providers in Alabama recently filed lawsuits against state Attorney General Steve Marshall. The purpose of the litigation is to prevent him from prosecuting people who help patients travel outside the state to end pregnancies legally.
The lawsuit, West Alabama Women’s Center, et al. v. Marshall, et al., was filed in the U.S. District Court for the Middle District of Alabama in Montgomery by the American Civil Liberties Union (ACLU) and the ACLU of Alabama on behalf of West Alabama Women’s Center, Dr. Yashica Robinson and Alabama Women’s Center.
In a press release, the ACLU said the litigation comes as “Attorney General Marshall has explicitly threatened that health care providers could face felony charges for assisting Alabamians seeking to travel out of state to obtain abortion where it is legal.”
After the U.S. Supreme Court overturned Roe v. Wade and handed authority on abortion law to the states, the Deep South quickly became an area of limited abortion access. Alabama bans abortion at any stage of pregnancy with no exceptions for rape and incest. The only exemption is when the pregnancy seriously threatens the pregnant patient's health. Nineteen states have enacted restrictions, and many southern states have near-complete bans.
Meagan Burrows is a staff attorney with the ACLU’s Reproductive Freedom Project. She explained health care providers have been forced to stop providing critical information and support about legal out-of-state abortions services over fear of retaliation.
“This is seriously harming both the plaintiffs, in this case, who feel ethically obligated to provide this information to their patients and who are devastated by their inability to do so, as a result of the fear of prosecution,” she explained. “It's also extremely harmful to the patients in Alabama and pregnant people in Alabama who are unable to access vital reproductive care in Alabama, and (who) are forced to have to travel outside of Alabama to obtain an abortion if they need one.”
In a press release, the ACLU said, “The threatened prosecutions would blatantly violate numerous fundamental constitutional rights, such as the rights to free speech, due process and to travel freely across state lines.”
Burrows explained “due process” requires criminal laws to give people a fair warning about what conduct laws make a crime. “There is no Alabama criminal law or legal precedent that provides fair warning to people (who are) helping someone access legal, out-of-state abortion is a crime,” she explained. “Simply put, out-of-state abortion that is legal where it occurs is not a crime or offense. The Attorney General has conceded himself that no Alabama law makes leaving the state to obtain illegal abortion a crime or offense.”
Staff Attorney Burrows went on to explain how the prosecution would violate free speech, specifically those in the health care field.
“Health care providers have just as much a First Amendment right as anyone to provide truthful, accurate information to their patients about all of their legal medical care options, including legal out-of-state abortion,” she explained. “So, threatening them with prosecution for providing information and recommendations to their patients about legal out-of-state care, especially when they have this at their fingertips and know that this information may be difficult for their patients to access on their own, is a really stark and obvious First Amendment violation.”
Burrows said making threats against those who would help patients travel across state lines for care aims to impede the patients from that travel and would penalize them for doing so. “Part and parcel of the ‘right to travel’ is the right for people to avail themselves of the offerings and legal environments and other states that they traveled to,” she explained. “And Alabama is effectively trying to force Alabama residents to carry its legal regime on their backs with them as they move across state lines, which completely undermines the fundamental ‘right to travel’ and the basic structure of the federal union as well.”
Dr. Yashica Robinson is a plaintiff in the case, and she’s the medical director of Alabama Women's Center for Reproductive Alternatives in Huntsville. She said this looming threat from Attorney General Marshall has affected how she serves her patients. This includes giving them counsel and information about medical options and recommendations or referrals to help access the care that they need.
“When I became a doctor, I took an oath to serve my patients to the best of my ability and to always put their interests first. But politicians have relentlessly attacked that commitment and tried to take power from the people that I have made a commitment to,” Dr. Robinson said. “It has been devastating to me and to my staff to have to withhold this critical information and support from the patients. This interferes with their ability to be able to access the care that they need and make decisions that are best for them and their pregnancies.”
Dr. Robinson said she once made referrals for patients seeking abortions, coordinating medically complex health histories but no longer does so because of the fear of prosecution.
“We've seen how harmful that this has been for our patients who are struggling to access care in a timely fashion,” she stated. “Sometimes not being able to access this care in a timely fashion and being able to get those resources and receive that help… it puts patients at risk. It delays their care, and some of these patients are going to be forced to continue pregnancies that are harmful for them or that they know are not what's best for them at the time.”
Abortion advocates said these services can be the difference between life and death. Dr. Robinson explained Alabama has the third highest maternal mortality rate in the country, and this puts pregnant people at risk, especially those of color.
“Particularly for Black women, who make up the majority of the patients that I care for, the ability to travel out of state for care may be what makes the difference between obtaining a safe abortion and dying as a result of pregnancy and childbirth,” Dr. Robinson explained. “So, being able to access the full spectrum of care for patients is critical to patients for their safety and for their autonomy.”
A similar case against Attorney General Marshall was filed in federal court by the Lawyering Project on behalf of the Yellowhammer Fund, an organization that has been unable to provide funding and practical support to pregnant Alabamians seeking out-of-state abortion care due to the threat of criminal prosecution.
Marshall's office said in response to the litigation: “Attorney General Marshall will continue to vigorously enforce Alabama laws protecting unborn life, which include the Human Life Protection Act. That includes abortion providers conspiring to violate the Act.” The Human Life Protection Act, which imposes a near-total ban in the state, has been in effect since 2019.
Marshall’s office did not clarify if actions such as providing financial assistance could be prosecuted.