Opinion | This Alabama AG won’t stop at the state line to prosecute abortion

Steve Marshall is Exhibit A in why leaving abortion to the states is a nightmare.

By Ruth Marcus
Associate editor | May 16, 2024 at 4:07 p.m. EDT



Alabama Attorney General Steve Marshall with Sen. Tommy Tuberville (R-Ala.) and Rep. Nicole Malliotakis (R-N.Y.) on Monday in New York. (Stefan Jeremiah/AP)

Not content to prevent women from obtaining abortions in his own state, Alabama Attorney General Steve Marshall is doing his best to prevent them from traveling to states where the procedure remains legal. Fortunately, a federal judge just ruled that the Constitution won’t let him. Unfortunately, we might have more of this kind of zealotry heading our way.

Marshall’s antiabortion fervor illustrates one of the many shortcomings of the leave-it-to-the-states approach endorsed by, among others, former president Donald Trump. In Alabama, abortion is prohibited, except where there is a serious risk to maternal health. But in the aftermath of the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, Marshall threatened to prosecute anyone who helped Alabama women obtain abortions elsewhere, asserting that could amount to a “criminal conspiracy” under state law. … “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,” Marshall asserted in court papers.

Just because an abortion might be legal elsewhere, Marshall argued, doesn’t prevent prosecution. “Alabama can criminalize Alabama-based conspiracies to commit abortions elsewhere,” he proclaimed. Marshall didn’t threaten to prosecute the women themselves — Alabama’s abortion law doesn’t criminalize women who obtain the procedure, at least not yet, only those who perform it or otherwise help them. But organizations and individuals who provide funding and advice to women seeking abortions out of state filed suit in federal court, asserting that Marshall’s threat of prosecution was unconstitutional.

U.S. District Judge Myron H. Thompson, a Jimmy Carter appointee, agreed. In a ruling on May 6, he declined Marshall’s bid to have the case dismissed, saying the threat violated the constitutional rights to travel and to freedom of speech. … “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,” Thompson wrote. Marshall’s “constrained conception of the right to travel,” he said, “would erode the privileges of national citizenship and is inconsistent with the Constitution.”

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Opinion by Ruth Marcus
Ruth Marcus is an associate editor and columnist for The Post. Twitter https://x.com/RuthMarcus