The Alabama Case That Could Undo the Right To Travel Out of State for an Abortion

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When the Supreme Court reversed Roe v. Wade, Justice Brett Kavanaugh took the time to reassure Americans that there would be no threat to the right to travel. If a state made it a crime to travel for abortion, Kavanaugh suggested, that would simply be unconstitutional. A major ruling from Alabama this week in a case called Yellowhammer Fund v. Attorney General is a reminder that states are finding more creative ways to limit abortion-related travel, and when a case on the subject ultimately reaches the Supreme Court, the question will be much more complicated than Kavanaugh wanted to believe.

The case began shortly after Roe was reversed. Alabama quickly criminalized virtually all abortions in the state, and clinics there pivoted to expand other services. Then, Steve Marshall, the attorney general of Alabama, threatened to prosecute people and organizations who were helping abortion seekers travel out of state for abortion—which some of these organizations planned to do or had done in the past—even to places where the procedure was legal. Several health care providers and an abortion fund filed suit, seeking a declaratory judgment and injunction to establish that Marshall couldn’t constitutionally pursue that kind of prosecution.

At the heart of the case is the right to travel. The plaintiffs argued that the right, one of the most venerable in our constitutional tradition, involves not only the right to move between states but also the ability to do what is lawful in another state. Marshall responded that the right to travel is much narrower: It protects only the ability to move around between and within states, stopping states from discriminating against nonresidents, and nothing more.

District Judge Myron Thompson, a Carter nominee, agreed with the plaintiffs, but it’s hard to predict whether conservative judges will reach the same result if Marshall appeals. First, the Supreme Court’s conservative supermajority may be swayed by the fact that most past cases on travel involve discrimination against out-of-state residents. For example, states with more generous welfare benefits sometimes created more waiting periods to discourage people from moving to take advantage. The Supreme Court held that this kind of uneven treatment violates the right to travel. But this case is different: It’s not about Alabama denying a benefit to someone who had recently moved from elsewhere. It’s an effort to burden travel by criminalizing anyone who facilitates travel. It’s not clear whether the conservative justices will see this kind of burden as unconstitutional.

And to make matters more complicated, Marshall and others like him argue that they have more power to target those who help others travel than abortion seekers who cross state lines themselves. The district court reasoned that the right to travel protected these helpers too: People who don’t have a car or lots of resources to pay for travel have to rely on others for support to exercise a right to travel, and criminalizing that support would make the right an illusion for those at the nation’s margins.

But Marshall may feel confident that conservative judges won’t care about this kind of burden, especially if its effects will be felt most acutely by those with the least. He argues that states can impose “reasonable” burdens on the right to travel, especially if they are advancing other important goals, like protecting fetal life. The Supreme Court has a history of ignoring burdens on rights that stop short of outright criminalization. And the court in Dobbs seemed to assign a lot of weight to the state’s efforts to protect fetal life.

The district court’s ruling in Yellowhammer is also a reminder that there are other ways to stop interstate travel: by limiting what abortion seekers learn about their options in jurisdictions where the procedure is legal. Marshall claimed the authority to charge abortion funds, health care providers, and others with entering into a criminal conspiracy simply by informing patients of out-of-state options or helping them arrange for services elsewhere.

Marshall claims that he can punish what looks like speech protected by the First Amendment because it facilitates a crime. He points to a 1949 case called Giboney v. Empire Storage and Ice Company, which held that the First Amendment offered little protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” The district court thought that Giboney did nothing to help Marshall’s case: The speech Marshall targeted was integral to an act that would be legal—or even constitutionally protected—where it would occur.

But, again, Marshall may have better odds on appeal. He argues that Alabama made speech about abortion unlawful by making abortion a crime—and that it doesn’t matter if abortion seekers ultimately end up terminating their pregnancies somewhere that the procedure is protected. Other conservative states have leaned on the claim that the Constitution offers no protection for crime-facilitating speech. We still can’t know how the Supreme Court would react to that kind of argument.

The case underscores that stakes in travel cases go beyond the freedom to move from state to state. Conservative attorneys general like Marshall are infuriated by the reality that their citizens can circumvent a state ban simply by going elsewhere. That’s why conservative states are looking for ways to project bans beyond state borders. That means making it a crime to help someone plan a legal abortion in another state—as Marshall said he plans to do in this case. Efforts to apply red-state abortion bans beyond state lines don’t stop there. There are already efforts underway to prosecute a New York doctor who mailed abortion pills into Louisiana, even though New York constitutionally protects abortion. Texas lawmakers are considering a bill that would make it a crime for an internet service providers to host websites that provide information accessible to Texas residents about abortion.

On the campaign trail, Donald Trump vowed to leave abortion to the states. With Robert F. Kennedy Jr. promising an investigation of mifepristone, we should be skeptical that he’ll keep that promise. But cases like Yellowhammer make clear that it was never going to be possible to leave abortion to the states—especially when Alabama has already declared war on any other state that recognizes reproductive rights.