AL Atty General Steve Marshall: Organizations Facilitating Out-of-State Abortions Is Criminal Conspiracy

(AP Photo/J. Scott Applewhite)

It has been 14 months since the U.S. Supreme Court overturned Roe v. Wade and removed abortion from federal regulation and oversight back to the individual states. As California and New York went to the extreme of protecting its citizens' right to an abortion, even past the time of birth, Alabama and 13 other states went in the opposite direction. Before Roe was overturned, in 2019 the state passed the Human Life Protection Act, which banned nearly all abortions, but knew the "trigger" law could not have its full impact until Dobbs v. Jackson's Women's Health, the case that precipitated Roe's demise, was settled.  Alabama has since distinguished itself by totally banning abortions, with its only provisions being

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  • To save the pregnant person's life
  • To prevent serious risk to the pregnant person's physical health
  • If the fetus is not expected to survive the pregnancy

Several information sites affirm that Alabama women can go out of state to obtain an abortion, and offer resources and organizations that could help facilitate this. However, Attorney General Steve Marshall (R) has gone on record that any Alabama-based organization that assists a woman in obtaining an out-of-state abortion could be considered criminally liable. Cue the lawsuits: In July, the West Alabama Women's Center, Dr. Yashica Robinson, and Alabama Women's Center filed a lawsuit against the state saying that this violated their constitutional rights to participate in travel. This is how you know the death lobby is in desperate straits. An advocacy organization called Yellowhammer Fund filed a separate lawsuit.

AG Marshall has fired back, and on Monday filed a Motion to Dismiss, which states he has the right to prosecute based on laws covering criminal conspiracy. The Left are not the only ones who can get creative in their lawfare. 

In a court filing Monday, attorneys for Attorney General Steve Marshall wrote that providing transportation for women in Alabama to leave the state to get an abortion could amount to a “criminal conspiracy.”

The court filing comes in response to lawsuits against Marshall that was filed in July from two women’s health centers and Yellowhammer Fund, an organization which says it provides “financial and practical support for those who are pregnant and require assistance.” The plaintiffs argue that Marshall violated their constitutional rights by publicly stating that organizations which help pregnant women in Alabama get an abortion out of state could be criminally investigated.

“Alabama can no more regulate out-of-state abortions than another state can deem its laws legalizing abortions to apply to Alabama,” the Yellowhammer Fund lawsuit argues.

Marshall is now asking Judge Myron Thompson to dismiss the lawsuit, saying that helping a woman avoid Alabama’s restrictions by facilitating an abortion elsewhere is a conspiracy.

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From a general perusal of the motion, the law appears to have some teeth. This hard stance is what got former U.N. Ambassador and presidential candidate Nikki Haley into a lather at last week's GOP debate. Haley demanded an honest conversation with the American people about abortion and what could be done, and asserted that criminalizing and demonizing women is not the answer.

WATCH:

Marshall seems comfortable in his legal standing that the state is within its rights. Taking a break from promoting gun control, California Governor Gavin Newsom found a new red state issue he could posture about, and posture he did.

This is the same governor who signed AB2098 into law, which punishes and prosecutes California doctors if they spread misinformation to their patients, even if said misinformation would be in line with the standard of care needed. A federal court has granted a temporary injunction against the implementation of the law, as my colleague Bob Hoge wrote

A California federal judge granted a temporary injunction Wednesday against the state’s Assembly Bill 2098, called “Physicians and surgeons: unprofessional conduct,” in a big win for all doctors who don’t appreciate their speech being censored. The “medical misinformation” bill was signed into law by Governor Gavin Newsom in September and marks one of the biggest dictatorial pandemic-era overreaches by the governor and the Golden State legislature, which is run by a supermajority of Democrats.

The short version of the law is—if you’re a doctor and you say anything about COVID the state doesn’t like, they will take away your license to practice and therefore your career. Somewhere in Washington, D.C. there’s a copy of the U.S. Constitution, but it would appear that Newsom hasn’t bothered to read it or one of its central features, the First Amendment.

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Marshall has better hair than Governor Hair Gel and probably a bigger set of nuts. He fired back on Thursday:

Unlike California's gaslighting governor, Marshall appears to mean what he says and lays out the case law that supports his argument. In the Motion to Dismiss filed with the court, he states:

Plaintiffs finally argue that they have a so-called right to be free from extraterritorial application of State law, but the prohibited conduct in which they wish to engage would occur right here in Alabama. In the words of the Alabama conspiracy statute, Plaintiffs wish, while in this State, to “agree[] with one or more persons to engage in or cause the performance of the conduct” constituting an offense, followed by “one or more of the persons do[ing] an overt act to effect an objective of the agreement.” ALA. CODE § 13A-4-3(a). Prosecuting someone for forming a conspiracy in Alabama is not an extraterritorial application of Alabama law simply because the planned conduct is to occur beyond State lines. Plaintiffs assert that there is some difference because the object of their conspiracy is legal where it might occur. But they don’t explain why that makes any constitutional difference, and it doesn’t. The conspiracy is what is being punished, even if the final conduct never occurs. That conduct is Alabama-based and is within Alabama’s power to prohibit.  

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Judge Myron Thompson has scheduled a hearing on Tuesday to hear the motion. Alabama recently won a victory with a U.S. Court of Appeals allowing them to enforce a ban on gender-transitioning surgeries with puberty blockers and transgender surgeries. Marshall appears primed to maintain that winning streak.

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