In Yellowhammer Fund v. Marshall, (MD AL, May 6, 2024), an Alabama federal district court held that the state Attorney General would violate women's right to travel and the free expression rights of reproductive health providers and their staffs if he carried out his threat to prosecute anyone who assists women in arranging out-of-state abortions that would be illegal if performed in Alabama. Refusing to dismiss these claims by plaintiffs, the court said in part:
... [T]he Constitution protects the right to cross state lines and engage in lawful conduct in other States, including receiving an abortion. The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense. Travel is valuable precisely because it allows us to pursue opportunities available elsewhere. “If our bodies can move among states, but our freedom of action is tied to our place of origin, then the ‘right to travel’ becomes a hollow shell.”...
Moving to plaintiffs' free expression claim, the court rejected the state's reliance on the exception found in the Supreme Court's 1949 Giboney decision for speech integral to unlawful conduct. The court went on to say in part:
Having established that the Attorney General’s attempt to invoke Giboney is unavailing, the court turns to whether the plaintiffs have stated a viable First Amendment claim, taking the factual allegations in their complaints as true. The plaintiffs submit that the State plans to initiate a prosecution under Alabama’s statutes punishing conspiracy, complicity, solicitation, and other crimes based on the content of the speech they and their staff wish to engage in about out-of-state abortions. “[C]ontent-based speech regulations face ‘strict scrutiny,’ the requirement that the government use the least restrictive means of advancing a compelling government interest.”...
The Attorney General does not argue that his threatened prosecutions can satisfy strict scrutiny.
The Hill reports on the decision.
