Abortion Funds Sued Alabama’s Attorney General for His ‘Fringe’ Threats. But the Damage Was Already Done.

Even before Alabama imposed a total abortion ban following the Supreme Court’s Dobbs v. Jackson Women’s Health ruling in 2022, abortion funds said one in five abortion seekers in the state had to travel across state lines for care due to a range of barriers. Jenice Fountain, executive director of the Alabama-based reproductive justice group Yellowhammer Fund, told Jezebel for many of their callers, the closest abortion provider was hours away, and some couldn’t take the time off work to endure the state’s mandatory waiting period. So, with the guidance and financial support of abortion funds, they’d learn their options and often wind up traveling to somewhere like Atlanta.

Now, the closest state where in-clinic abortion is available is Illinois—and abortion funds can’t help or even render direct guidance on how to navigate the vast, complex legal landscape around abortion. That’s because in September 2022 and again in August 2023, Alabama Attorney General Steve Marshall (R) said helping someone travel for an abortion amounts to a “criminal conspiracy,” and threatened to prosecute those who “aid and abet” legal, out-of-state abortions. In July 2023, the Yellowhammer Fund and West Alabama Women’s Center (WAWC) filed a joint lawsuit against Marshall, represented by the Lawyering Project and ACLU of Alabama. A federal judge is expected to issue a ruling in the case as early as this month, which could carry implications for abortion funds across the country. Just to reiterate: Interstate travel for abortion is legal and constitutionally protected no matter where you live.

Jamila Johnson, an attorney with the Lawyering Project representing Yellowhammer, told Jezebel that Marshall’s threats are “fringe” and unlawful, even compared to the approaches of officials in other abortion-banned states. Texas abortion funds have been sued by anti-abortion extremist Jonathan Mitchell for “aiding and abetting” abortion, but last year, a federal judge ruled that they’re likely safe from prosecution, because Texas’ abortion bans apply to in-state conduct.

In Alabama, Marshall’s threats are an attempt to expand the scope of the state’s abortion ban altogether and trap people in the state. Unfortunately, his threats have thus far been successful. Since Dobbs, Fountain says Yellowhammer went from receiving about 100 abortion-seeking callers per week to about five—likely because Alabama residents believe abortion is no longer an option, period. Yellowhammer stopped providing abortion funding immediately after Dobbs out of legal concerns, and, especially in light of Marshall’s threats, is careful with the guidance it gives callers. “We have a script,” Fountain said. That includes giving callers “third-person information,” like suggesting what a different person in their position could do, or sharing passages from articles that detail how people in Alabama can seek abortions—“anything that isn’t directly advising.” 

Even before Dobbs, Fountain explained, pregnant people in Alabama had to fear law enforcement involvement and possible criminalization if they so much as sought help with miscarriages. Tracking from Pregnancy Justice in 2023 shows Alabama recorded the highest number of pregnancy-related criminal cases in the country between 2006 and 2022. One woman was jailed for losing a pregnancy after being shot in 2019; another was jailed for trying to pick up pain medication from a pharmacy while pregnant in 2021. “It’s not hyperbole—it’s terrifying to be pregnant in this state,” Fountain said. “And they’re no longer just trying to ban abortion—they’re looking for any way possible to stop people from getting care they need.” 

In the Alabama abortion funds’ lawsuit, they say Marshall’s threats violate their freedom of expression, and that they can’t “resume providing abortion funding and support for out-of-state abortions until we can be assured that we will not face criminal prosecution for doing so.”

The state of Alabama says it can prosecute anyone who helps a woman leave the state to have an abortion.

“An elective abortion performed in Alabama would be a criminal offense; thus, a conspiracy formed in the State to have that same act performed outside the State is illegal.” https://t.co/FQxHBNoBgo

— James Surowiecki (@JamesSurowiecki) April 22, 2024

Marshall’s office didn’t respond to a request for comment from Jezebel on the merits of the abortion funds’ arguments; nor did his office respond to The Hill’s requests for comment.

Fountain says she ultimately doesn’t know whether Marshall’s threat could even be enforced—but it achieves his objective of stopping abortions, because many people who would otherwise help abortion seekers won’t due to the “chilling effect” of Marshall’s words. Fountain referenced recent data that shows abortions increased post-Dobbs, and stressed that it’s “not a win, and not indicative of communities we serve.” Under Alabama’s ban, many people don’t know their options, or by the time they learn they can legally travel for abortion, they’re overwhelmed by all the steps in front of them—scraping together funds, traveling to Illinois, missing work and school, scrambling for child care. “So, they’ll just deal with birthing, then, or maybe they’ll spend their rent and they’ll be [financially] set back for a long, long time, for [abortion],” Fountain said. 

And when pregnant people are forced to remain pregnant by the state’s ban, Fountain says, sometimes they still need to travel out-of-state anyway: “We’ll hear from domestic violence victims who have to escape or leave the state to give birth so their partner doesn’t harm them, or their pregnancy, or their kid,” she said. “That’s just becoming a day-to-day reality.” Homicide remains a leading cause of death among pregnant people.

Marshall’s attempts to criminalize “aiding and abetting” legal abortion are part of a broader wave of post-Dobbs attacks on constitutionally protected abortion-related travel. States like Idaho and Tennessee have passed laws to criminalize the act of helping minors travel out-of-state for abortions, though Idaho’s law is currently blocked in court. In July, Senate Republicans blocked legislation to enshrine a federal right to abortion-related, interstate travel. In Texas, in addition to suing abortion funds, Mitchell is helping men take legal action against ex-partners for allegedly traveling out-of-state for abortions. Some Texas counties have passed ordinances that outlaw the use of their highways for abortion—which can’t necessarily be enforced but can intimidate people from seeking care.

In a statement shared with Jezebel, Meagan Burrows, senior staff attorney at the ACLU Reproductive Freedom Project, says she’s  “hopeful that the court will soon decide this case in our favor and restore the ability of our clients and others to help pregnant Alabamians access vital and often life-saving out-of-state care that Alabama has no power to prohibit.”

“A win in Alabama would send a strong message to anti-abortion politicians across the nation that these types of underhanded tactics cannot stand in the face of the clear protections that the Constitution affords,” Burrows said.

Until the court’s ruling, Fountain says confusion and misinformation have already gone a long way to block access to abortion and the full range of reproductive care. When Yellowhammer tried to distribute free emergency contraception to community members, “we’ll hear people tell us they thought it was the same as abortion pills and they didn’t know they could take it.” Similarly, if enough people think traveling out-of-state for abortions is illegal, the impact, she says, will be the same as if it were.