AG May Not Threaten Prosecution of Those Who Assist Women Seeking Out-of-State Abortions

In Yellowhammer Fund v. Attorney General of Alabama, (MD AL, March 31, 2025), an Alabama federal district court in a 131-page opinion issued a declaratory judgment holding unconstitutional the Alabama Attorney General's threat to prosecute those who assist women seeking to travel out-of-state to obtain a legal abortion.  The court found that the threat violated both the right to interstate travel and free expression rights.  The court said in part:

The right to travel includes both the right to move physically between two States and to do what is legal in the destination State.  The Supreme Court has held that States cannot punish their residents for traveling to another State and engaging in conduct that is lawful there....

This principle extends to people who enter a State to procure medical services, including abortions....

If a State cannot outright prohibit the plaintiffs’ clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them. ...

The Attorney General’s threatened enforcement of Alabama’s criminal laws imposes a content- and viewpoint-based restriction on speech.  It restricts information and discussion about a specific subject--abortion-- to forbid encouraging a specific viewpoint-- access to a legal out-of-state abortion....

... Yellowhammer Fund’s act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection....

It is one thing for Alabama to outlaw by statute what happens in its own backyard.  It is another thing for the State to enforce its values and laws, as chosen by the Attorney General, outside its boundaries by punishing its citizens and others who help individuals travel to another State to engage in conduct that is lawful there.... For example, the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama....  As the adage goes, be careful what you pray for. 

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Alabama May Not Prosecute Those Who Arrange Out-of-State Abortions for Women

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.

Court Enjoins Idaho's Ban on Aiding a Minor in Obtaining an Abortion

In Matsumoto v, Labrador I, (D ID, Nov. 8, 2023), an Idaho federal district court issued a preliminary injunction against enforcing Idaho Code Section 18-623 which provides in part:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The court said in part:

The Court finds Idaho Code Section 18-623 is a content-based regulation of protected speech and expression. The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options....

Here, Idaho Code Section 18-623 fails to provide fair notice or ascertainable standard of what is and what is not abortion trafficking. The terms “recruiting, harboring, or transporting” are undefined, overbroad, and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities....

In Matsumoto v. Labrador II, (D ID, Nov. 8, 2023), the same court refused to dismiss plaintiffs' First Amendment speech and 14th Amendment vagueness challenges as well as their right to interstate travel claims. However the court did dismiss plaintiffs right to intrastate travel challenge.

Reuters reports on the preliminary injunction.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.