Even before the Supreme Court reversed Roe v. Wade, conservatives dreamed up strategies to stop patients from crossing state lines to seek abortions. A legal case that is underway may lay the groundwork for those dreams to become a reality.
The fight began last July, after Steve Marshall, the Alabama attorney general, threatened to prosecute anyone in Alabama who helps a resident get an abortion out of state. Two health centers and an abortion fund sued Marshall, arguing that his proposal is flat-out unconstitutional — and for more than one reason.
The plaintiffs argue that the kind of prosecution that Marshall has in mind would violate the right to travel and deny them due process of law. Even Supreme Court Justice Brett Kavanaugh, who often casts deciding votes in key cases, has reasoned that states cannot ban interstate travel for abortion without violating the Constitution.
The plaintiffs in the Alabama case argue that the constitutional problems don’t stop there. They suggest that Marshall could censor speech by threatening activists and health care professionals with criminal charges. His actions might even raise questions under the Full Faith and Credit Clause of the Constitution, which requires states to honor the laws and court judgments of other states.
What Marshall is proposing could be politically disastrous too. Abortion bans themselves are unpopular, even in many conservative states, and restrictions on travel have no public backing either. That raises the question: Why exactly is Marshall contesting this lawsuit, rather than simply hoping that his original threat scares people away from helping abortion seekers in the first place?
The answer has two parts. First, the law on when a state can prosecute in circumstances like these is ambiguous and contested, which leaves open the possibility that Marshall could win. Second, if Marshall and others like him want to limit abortion access in progressive states — or even in many conservative or moderate ones — they won’t stand a chance unless they rely on the conservative federal judiciary. That’s just what Marshall is hoping to do in this case.
Kavanaugh did suggest that he would stop states from passing laws banning interstate travel, but that isn’t what Marshall proposes. Whether states can ever prosecute people who help someone seek an abortion out of state is a different question.
Generally, when two states’ laws conflict, modern principles focus on where the relevant conduct or injury occurred. That’s why it would be hard for a state like Alabama to punish an abortion seeker for a procedure that took place in Massachusetts. But Marshall is trying to work around this limit, promising to prosecute only the planning that takes place in Alabama for an abortion that will be performed elsewhere. States can sometimes prosecute when an element of a crime — or, according to Marshall, an entire conspiracy — takes place within their borders.
If Marshall has found a clever loophole, that still doesn’t mean he will win. It isn’t a crime to conspire to do something legal. And states like Massachusetts not only deny that abortion is a crime; they see it as a protected right. Alabama will respond that it has an interest in protecting its own citizens — even if states like Massachusetts have the authority to set their own rules and protect the reproductive rights of their own citizens. Marshall insists he can intervene to protect the life and dignity of the unborn child — and that is his reason for seeking to exercise power outside state lines.
But Supreme Court precedent raises doubts about whether that will work. In 1975, the Supreme Court addressed the constitutionality of a Virginia law that made it a crime to advertise that one performs abortions. A New York company had run an ad for abortion services out of state, but the court stressed that even if Virginia had an interest in regulating abortion within its borders, that didn’t mean it could tell New York what to do. “The 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,” the Court explained.
What about free speech? Marshall argues that some crimes, like hiring a hit man, require speech — and courts allow that speech to be prosecuted. Here, too, the law is not clear, and Marshall likely knows it. Some courts allow for prosecution when anyone knowingly or intentionally provides information that could be used in a crime. Other courts worry that this kind of approach could sweep in too much valuable speech — not least in cases like this one, where many Americans don’t see abortion as a crime in the first place. The bottom line is that there is ambiguity — when it comes to freedom of speech or the right to travel — and that might create an opening in a conservative Supreme Court that has been hostile to abortion and willing to undo precedent.
The kind of prosecution Marshall has in mind is something no state has been willing to try for more than 100 years. It’s not clear how often he will actually carry through on his threats: It’s been a while since he argued he could prosecute those who helped people seek abortions out of state, but he has yet to go after anyone. Nor is it clear how easy it would be for Marshall’s office to identify those helping out-of-state abortion seekers. The plaintiffs in this case — who dedicate themselves professionally to helping women who need abortions — might be the logical targets of surveillance, but what about anyone else? How easily — or realistically — could Marshall’s office know if a friend or loved one had done something to help someone obtain an abortion?
But while the outcome of the case remains uncertain, what is clear is that Brett Kavanaugh’s assurances about travel don’t answer all the questions about a messy area of the law, and conservatives like Marshall are ready to see how far they can push.
Mary Ziegler is a professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”