Alabama Attorney General Steve Marshall filed a motion Monday arguing that the state can prosecute those who assist people with accessing out-of-state abortion care. In doing so, he asked the court to dismiss a lawsuit brought by an abortion assistance fund contending that such prosecutions are unconstitutional. 

In his motion to dismiss, Marshall framed assisting people seeking abortions in legal access states as an act of conspiracy. Citing § 13A-4-4 of the Alabama Code, Marshall argued that “[a] conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.” In their complaint, plaintiffs from the abortion assistance fund, Yellowhammer Fund, alleged that this statute should be interpreted to only include acts that are also illegal in the state where they are performed. To counter, Marshall asserted that “federal courts lack authority to order a State official to comply with a federal court’s reading of State law.”

Marshall also refuted the plaintiffs’ argument that prosecution of such acts violates protections located under the US Constitution’s First Amendment by asserting that precedent forecloses First Amendment defenses when the act in question is a crime. Finally, Marshall contended that the plaintiffs’ argument, that they are “free from extraterritorial application of State law,” is invalid because the “the prohibited conduct in which they wish to engage would occur right here in Alabama.” Here, Marshall again referred to the issue of conspiracy.

According to Yellowhammer Fund’s lawsuit filed in late July:

When helpers extend a hand, they do more than simply provide aid; they send a message. To those who are persecuted, they send a message of solidarity: that the persecuted person’s humanity is bound up in that of the helpers’, that their dignity is connected, that their rights are one and the same, and that the helper is working toward achieving collective liberation. To the oppressors, helpers send a message of protest and defiance: that the persecutor’s attempts to isolate and oppress certain communities will not stand…Marshall disagrees with the message of solidarity, protest, and defiance being communicated by abortion funds and has set his aim on these helpers.

Following Marshall’s filing, California Governor Gavin Newsom posted a tweet stating that “California will NOT cooperate with any state that attempts to prosecute women or doctors for receiving or providing reproductive care.” Marshall responded, saying, “We aren’t asking for your permission…Alabama will not permit abortionists to defy our laws and enrich themselves by marketing hopelessness to women.”

A hearing in the case is scheduled to take place on September 5. Its outcome is expected to drastically impact access to care for Alabamians. A recent study found that 25-44 percent of pregnant people seeking an abortion in Alabama had to travel out of state, even before Dobbs v. Jackson Women’s Health Organization stripped the constitutional right to abortion.