U.S. Department of Justice to join suit against Alabama AG’s abortion prosecution threats

In a motion to intervene filed on Thursday, attorneys for DOJ argued that the right to travel between states was a fundamental American right, dating back to the Articles of Confederation.  The filing cited a clause of the 14th Amendment in arguing that the right to travel is one of the rights of national citizenship provided by the Constitution.

“The right to travel embraces more than just physical movement; it also protects an individual’s right to engage in conduct that is lawful in other states while in those states, regardless of their home state’s laws,” the motion stated.

The lawsuit, filed on July 31 by former abortion providers in the state, cited comments made by Marshall in an August 2022 radio interview, where he suggested Alabamians helping people obtain legal abortion care in other states could face felony prosecutions.

The lawsuit alleges Marshall’s comments and the threat of prosecution forced health care providers to cease providing critical information, counseling and practical support to Alabamians exercising their constitutional right to access medical care across state lines.

After the lawsuit was filed, Marshall renewed his threats to prosecute out-of-state abortion care.

U.S. District Judge Myron Thompson postponed a hearing set for Oct. 31, and the hearing has not been rescheduled.

The DOJ motion Thursday argued that states lack authority to prohibit travel across state lines and can’t prevent third parties from helping individuals seek an abortion out-of-state.

“The Alabama AG cannot undermine the right to travel by making each traveling individual an island unto themselves, prohibited from receiving assistance from anyone else within the state,” attorneys for DOJ wrote.

Health care providers sue Alabama officials over threats of prosecution in abortion aid

The motion further argued that the United States and its federal agencies have an interest in states not criminalizing travel, or the assistance of travel, across state lines to access healthcare.

“The United States has a sovereign interest in preserving the proper functioning of the federal system, including by ensuring that one state does not improperly intrude into the affairs of other states, thereby protecting the integrity of the Union itself,” the motion stated.

The motion also referenced Supreme Court Justice Brett Kavanaugh’s opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 ruling that struck down the right to abortion.

“As Justice Kavanaugh has explained, the question of whether a State may ‘bar a resident of that State from traveling to another State to obtain an abortion’ is ‘not especially difficult’ — ‘the answer is ‘no’ based on the constitutional right to interstate travel,’” according to the motion.

The motion also argued that the state does not have the right to prevent organizations or individuals from providing help for out-of-state abortion care, noting that the Supreme Court has ruled that helping people travel is equally protected. When a state prevents third-party assistance for travel, the motion argued, it violates that right to travel.

If restrictions were allowed for conduct that the state prohibits, that could open the door to “problematic state laws.”

“A state that criminalized gambling could go further and prevent its residents from assisting with travel to casinos in Mississippi or Nevada, based solely on its policy disagreement with those states on that issue,” the motion said.

The attorney general’s office had not responded to the motion as of Thursday evening.