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

By: - August 1, 2023 11:07 am
Alabama abortion clinic

Signage at West Alabama Women’s Center in Tuscaloosa, Ala., Friday, Feb. 10, 2023. (Photo by Vasha Hunt)

A group of health care providers Monday sued Alabama Attorney General Steve Marshall and district attorneys in the state, seeking to stop them from prosecuting those who aid Alabamians seeking to access abortion care in states where it is legal.

The American Civil Liberties Union (ACLU) and the ACLU of Alabama filed the lawsuit on behalf of West Alabama Women’s Center in Tuscaloosa; Dr. Yashica Robinson, based in Huntsville, and Alabama Women’s Center in Huntsville, in the U.S. District Court for the Middle District of Alabama in Montgomery. The court is composed of two Trump-appointees with one vacant judgeship.

“No Alabama law authorizes such prosecutions. Nor could it,” the lawsuit stated. “That would be a blatant extraterritorial overreach of state power that not only contravenes the Due Process Clause, the First Amendment, and the fundamental constitutional right to travel, but also the most foundational principles of comity upon which our federalist system rests.”

The lawsuit comes in response to statements made by Marshall in an August radio interview last year. In the interview, Marshall said that health care providers could face felony charges for assisting Alabamians in traveling to other states to obtain legal abortion care.

“If someone was promoting themselves out as a funder of abortions out of state, that is potentially criminally actionable for us. If there are groups promoting this as part of their services, we will be taking a look at that,” said in the interview, reported by the Alabama Political Reporter.

In an email statement, Marshall’s office said “Attorney General Marshall will continue to vigorously enforce Alabama laws protecting unborn life which include the Human Life Protection Act. That includes abortion providers conspiring to violate the Act.”

Alabama enacted a near-total abortion ban after the U.S. Supreme Court struck down federal abortion rights protections in Dobbs v. Jackson’s Women’s Health Center in 2022.

“Tragically, banning abortion in Alabama seems to not have been enough, and those in power want to muzzle providers like me to prevent us from sharing information with our pregnant patients about the options they have,” Robinson said in a statement released by the ACLU on Monday.

Meagan Burrows, staff attorney with the ACLU Reproductive Freedom Project, said Monday morning in a phone interview that despite the court composition, they have a strong legal claim.

“This is having a seriously harmful effect on the health care providers who are plaintiffs in this case, who feel ethically obligated to provide this information to their patients – and have a First Amendment right to do so,” Burrows said.

She said that this also harms patients, who have a constitutional right to travel across state lines, and they are “being burdened and penalized” because they are unable to get the information and support that they may depend on to access legal abortion care.

The Lawyering Project, a legal organization aimed at increasing access to abortion, has filed a related case on behalf of the Yellowhammer Fund, an organization that supports pregnant Alabamians seeking out-of-state abortion care.

Burrows said in the interview that the criminal laws identified by Marshall do not give people fair warning that entering into agreement or providing people assistance in Alabama to do something that is legal outside of Alabama would be a crime.

“None of these laws actually contemplate that on their face, based on their prior use, based on the intention for which they were developed,” she said. “To apply the laws in that way would really give people no fair warning that their legal speech and conduct of helping people do something that is legal in another state would be a crime.”

The lawsuit alleged that as a result of these statements, health care providers involved in the case have been forced to cease providing critical information, counseling and practical support to Alabamians exercising their constitutional right to access medical care across state lines.

Without court intervention, the lawsuit alleged that pregnant individuals may face delays in accessing necessary care. Some might be forced to carry unwanted pregnancies to term. This could have serious consequences in a state with the nation’s third-highest maternal mortality rate, especially impacting Black women, who experience a disproportionate number of maternal deaths due to systemic racism.

“This threat and the chilling effect that these threats have had on plaintiffs’ provision of information and support to their patients, has really put the physician-patient relationship in jeopardy, and is very destructive and painful for the health care providers who have all of the information at their fingertips,” Burrows said.

Robin Marty, the operations director of West Alabama Women’s Center, said in a statement that the prosecution threats affect the center’s ability to provide patient-centered care.

“When we cannot share information with patients about all of their options during pregnancy, including those options that are legal and available outside Alabama, the physician-patient relationship is put in jeopardy and our patients are harmed,” Marty said.

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Alander Rocha
Alander Rocha

Alander Rocha is a journalist based in Montgomery, and he reports on government, policy and healthcare. He previously worked for the Red & Black, Georgia's student newspaper, and Kaiser Health News, where he covered community health workers' successful efforts to vaccinate refugees in an Atlanta suburb. He is a Tulane and Georgia alumnus with a two-year stint in the U.S. Peace Corps.