This week, a court hearing in Alabama exposed a new constitutional landmine in the abortion conflict: whether prosecutors from conservative states can punish people for abortions that take place in progressive ones. And the deep ambiguities raised in this case may ultimately be settled by a conservative U.S. Supreme Court.
After the Supreme Court decimated abortion rights last year, Alabama Attorney General Steve Marshall proclaimed that organizations that helped Alabama abortion seekers access services out of state could face criminal conspiracy charges in Alabama. In July, two reproductive health centers and the Yellowhammer Fund, which provides support to low-income abortion seekers, sued Marshall, arguing that the prosecutions he outlined would be plainly unconstitutional. A conspiracy prosecution, they argued, could threaten speech protected under the First Amendment; it could curtail the constitutional right to travel; and it could violate the full faith and credit clause, which requires that state courts respect other states’ laws and court judgments.
The law is a mess when it comes to whether criminal laws like Alabama’s can apply extraterritorially.
Marshall has filed a motion to dismiss the plaintiffs’ lawsuit, arguing that he does have the authority to prosecute anyone in Alabama who helps someone else access abortion out of state. At first, it seems that Marshall’s motion is doomed to fail — an empty threat meant to intimidate abortion seekers who might otherwise have exercised their right to travel.
But the law is a mess when it comes to whether criminal laws like Alabama’s can apply extraterritorially — not least because states have not tried to police what happens in other jurisdictions since the Civil War. That makes Marshall’s threat deadly serious.
Since the Supreme Court overturned Roe, abortion opponents have floated a number of proposals to target travel to and services offered in progressive states. Some limits on these proposed bans seem clear, as far as current law is concerned. If an antiabortion state authorized lawsuits against a resident who traveled to a pro-choice state for abortion, modern legal rules seem to forbid it: They focus on where the relevant conduct took place — and where a purported injury occurred — not on where the plaintiff or defendant live. It is therefore likely unconstitutional to prosecute an Alabama resident for having an abortion in California.
A conservative state could claim that it has more skin in the game because both the abortion seeker and the fetus are based there. But the Supreme Court has not yet recognized a fetus as a separate, rights-holding person. Nor can states prosecute crimes that take place entirely outside of their state lines.
But states can prosecute elements of a crime that occur within their borders. This is the theory Marshall is banking on: He is threatening to charge abortion funds and clinics based on the plans they make in Alabama to help others seek legal abortions elsewhere. Even if planning takes place entirely within Alabama, though, states generally have to have a reason under current law to regulate conduct that takes place outside of state lines. Alabama tries to address this issue by claiming an interest in protecting the rights, life and even personhood of the fetus.
This gambit won’t win over any American voters, including in many red states.
But Marshall’s argument is hardly a slam dunk. In seeking to help an abortion seeker travel to a state where reproductive rights are respected, the plaintiffs would be conspiring to do something that is legal, and conspiring something to do something legal is not a crime. Even if Alabama stresses that it has a legitimate interest in protecting the fetal person, that might not be enough. In 1975, the Supreme Court ruled in Bigelow v. Virginia that a “State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”
As for freedom of speech, Marshall argues that he can prosecute speech that facilitates abortion travel just as he could “prevent a mobster from asking a hitman to kill a rival.” Here, too, it’s hard to predict what Marshall and others like him will be able to get away with. The law on crime-facilitating speech is murky. Some lower courts have held that intentionally or knowingly providing information that might help another commit a crime is not protected by the First Amendment.
Other courts, however, have recognized that speech that may facilitate a crime can also have valuable uses: Books on how detect arson, for example, could also make it easier to get away with one. These courts have allowed for prosecution for crime-facilitating speech only when it is likely to lead to an imminent crime. And in the context of abortion, it’s hard to determine whether speech is likely to lead to any crime at all, if the state where an abortion may occur will see that act as a protected right, not a crime.
This gambit won’t win over any American voters, including in many red states. Limiting abortion-related travel — or policing what other states do in their own borders — remains deeply unpopular, even among Republicans. But that isn’t the point of strategies like Marshall’s: Even if voters hate it, he still may stand a chance in court. The Supreme Court’s conservative majority has disregarded precedent repeatedly, not least in reversing Roe. Those justices may be willing to let red states push their laws on blue states, especially when the existing rules are unclear. If antiabortion forces can’t win in the court of public opinion, it may not matter as long as they have the Supreme Court.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession."