Yellowhammer Fund v. Marshall (LEAD)Yellowhammer Fund v. Marshall (LEAD)
OPINION
Previously, this court wrote in denying a motion to dismiss: “At its core, this case is simply about whether a State may prevent people within its borders from going to another State, and from assisting others in going to another State, to engage in lawful conduct there.” Yellowhammer Fund v. Att‘y Gen. of Ala. Steve Marshall, 733 F. Supp. 3d 1167, 1174 (M.D. Ala. 2024) (Thompson, J.). The court now answers no, a State cannot.
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A little over two years ago, the Supreme Court‘s decision in Dobbs v. Jackson Women‘s Health Organization, 597 U.S. 215 (2022), overturned Roe v. Wade, 410 U.S. 113 (1973), and delegated abortion regulation to the States. As a result, it is now a felony in Alabama for anyone “to intentionally perform or attempt to perform an abortion” absent a “medical emergency.”
In the wake of Dobbs, the Attorney General of Alabama threatened to criminally prosecute those who assist women seeking to travel out-of-state to procure a legal abortion. Unlike Dobbs which implicated, as stated, vertical federalism concerns, the Alabama Attorney General‘s threatened enforcement contravenes horizontal federalism, an historical sovereign principle rooted in the Constitution‘s original design. Plaintiffs Yellowhammer Fund, West Alabama Women‘s Center (WAWC), Alabama Women‘s Center (AWC), and Dr. Yashica Robinson then sued, naming the Attorney General as defendant. Plaintiffs all either helped coordinate legal abortions in Alabama or provided such abortions themselves, and, most significantly here, they arranged or facilitated, and provided information for, legal abortions outside Alabama.
Jurisdiction is proper pursuant to
These two now consolidated cases are before the court on cross-motions for summary judgment. The court will grant in part and deny in part both plaintiffs’ and defendant‘s motions.
I. SUMMARY-JUDGMENT STANDARD
II. FACTUAL BACKGROUND2
A. Yellowhammer Fund
Yellowhammer Fund is a Tuscaloosa-based nonprofit advocacy group committed to supporting families and “ensuring access to reproductive health care for all members of [its] community, regardless of race, income, location, age, gender, sexuality, disability, number of children, or status as a citizen.” Fountain Decl. (Doc. 61-1) ¶ 6. The Fund believes that, “[b]y providing material assistance, education, and mutual aid to pregnant and parenting Alabamians and their families, [it] send[s] an important message to [its] community about individual dignity and each person‘s innate ability
to make the decisions that are best for themselves and their families. [It] also seek[s] to communicate to funding recipients, volunteers, employees, supporters, other abortion advocacy groups, and the general public the belief that all people deserve access to the resources necessary to make the decisions that are right for them.” Id. ¶ 11. To further its mission, the Fund distributes free diapers, school supplies, pregnancy tests, contraception, hygiene products, emergency contraception, sex-education materials, and referrals for a wide range of reproductive-healthcare providers. Before Dobbs and the Attorney General‘s threats, Yellowhammer Fund also operated an abortion fund, which provided financial assistance and logistical support, including help coordinating food, lodging, childcare, and travel logistics to people in Alabama seeking abortions. At that time, between 15 and 20 percent of
B. Healthcare Providers WAWC, AWC, and Dr. Robinson
WAWC and AWC are reproductive-healthcare providers that offer routine checkups, prenatal care, testing and treatment for sexually transmitted infections, andpregnancy testing, among other services. Dr. Robinson, who serves as the medical director of AWC and has her own private practice, provides a broad range of reproductive and women‘s healthcare services, including but not limited to “general OB-GYN care; major and minor gynecological surgeries; prenatal, delivery and post-partum care; management of infertility; and primary care.” Robinson Decl. (Doc. 60-3) ¶ 1. Most of the plaintiff healthcare providers’ clients live in poverty or have low incomes, and some are homeless.
Before Dobbs, as stated, WAWC, AWC, and Dr. Robinson offered abortions themselves and, where appropriate, would arrange for out-of-state abortions. These three healthcare providers helped their patients secure funding for their abortions and, like Yellowhammer Fund, provided logistical support for patients’ efforts to obtain abortions.
As with any medical care the healthcare providers give, they tailored information to each patient based onindividual personal and medical circumstances. They provided pregnant women who wanted or needed to obtain an out-of-state abortion with recommendations for specific, trusted providers based on the woman‘s medical needs, pregnancy duration, geographic location, and other factors necessary for her to receive care without needless delay.
For medically complex cases, including cases where a patient‘s medical conditions resulted from or were exacerbated by pregnancy, Dr. Robinson would communicate directly with out-of-state physicians to relay pertinent medical information and forward relevant medical records. Just as Dr. Robinson would do for any patient needing a transfer of medical treatment, she also guided and assisted patients in figuring out how to pay for out-of-state medical care when they needed an abortion. These practices align with the three plaintiff healthcare providers’ training and commitment to patient-centered care. Dr. Robinson is motivated by her belief that“pregnant Alabamians, just like people seeking other types of medical treatment, should be able to seek and obtain information, counsel, and medical advice about all their medical options, including those that are legal outside of Alabama, such as abortion.” Id. ¶ 29.
Similarly, the staff at WAWC “feel a deep sense of ethical obligation to present pregnant Alabamians who reach out to [WAWC] for help with all of their healthcare options, respond to their questions, and provide them with the best information [they] can, including specific, tailored
C. Attorney General‘s Statements
After Dobbs was decided, Alabama‘s abortion restrictions went into effect. Under Alabama law, it is now “unlawful for any person to intentionally perform or attempt to perform an abortion except ... in the case of a medical emergency.”
On the day that Dobbs was decided, a representative in Alabama‘s legislature speculated that, with Alabama‘s abortion restrictions now in effect, anyone who helped someone else either get or plan an abortion in another State could be prosecuted for conspiracy. The representative cited Alabama‘s interjurisdictional conspiracy statute, which was passed in 1896 and provides that, “A conspiracy formed in this state to do an act beyond the state, which, if done in this state, would bea criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such aсt in this state.”
In response to the state representative‘s comment, the Alabama Attorney General announced that he was “reviewing the matter.” WAWC‘s Compl. (Doc. 23) ¶ 28. A few weeks later, he stated that his office would exercise its authority to prosecute violations of the 2019 abortion ban and Alabama‘s conspiracy laws, which could include attempts to procure an out-of-state abortion.
The Attorney General reiterated his commitment toprosecuting those who help coordinate out-of-state abortions during an appearance on an online radio program. The show‘s host asked him what he thought of “talk” that one could be an accomplice to a violation of the abortion ban by transporting someone else to another State for an abortion. Id. ¶ 32. In response, the Attorney General emphasized that, in Alabama, performing an abortion is “the most significant offense we have as far as punishment goes under our criminal statute absent a death penalty case, and so, uh, provisions relating to accessory liability--uh provisions relating to conspiracy--uh would have applicability involving [the abortion ban].” Suelzle Decl. (Doc. 61-3) ¶ 6. He elaborated:
“[O]ne thing we will do in working with local law enforcement and prosecutors is making sure that we fully implement this law. ... [I]f any individual held themselves out ... as an entity or a group that is using funds, that they are able to raise, uh, to be able to facilitate ... those visits [to an out-of-state abortion provider] then that, uh, is something we are going to look at closely. ... To theextent that there [are] groups, and we‘ve seen groups out of Tuscaloosa for example, that have one point in time have talked about it, some of them are doing it now, uh, but if they are promoting
this as one of the services, uh, we clearly will be taking a look at that.”
Id. A few months after his radio-show appearance, the Attorney General again noted “that prosecution is also possible to those who aid and abet abortions.” Yellowhammer Fund‘s Compl. (Doc. 1) ¶ 23. The Attorney General‘s comments about liability as an accessory or for aiding and abetting an offense seemingly refer to Alabama‘s criminal complicity statute, under which anyone who induces, aids and abets, or fails to prevent a crime is criminally liable. See
D. Plaintiffs’ Injury
The Attorney General‘s threats to prosecute people for facilitating out-of-state abortions were reported widely in the media, which is how the plaintiffs learned of them. The four plaintiffs all wish to continue serving people in Alabama who seek lawful out-of-state abortionsand would do so but for the Attorney General‘s threats. Collectively, they still receive as many as 95 weekly inquiries from clients about the availability of out-of-state abortions.4 The three healthcare providers no longer respond to questions from clients or physicians about medical procedures available in other States. They also no longer coordinate with out-of-state medical providers, including forwarding medical records and other relevant patient information, for patients seeking an out-of-state abortion. Yellowhammer Fund no longer operates its abortion fund and has eliminated a position on its staff dedicated to overseeing the organization‘s efforts to reduce obstacles to abortions. The Fund also
used to work with other advocacy groups and abortion funds but no longer does so for fear of prosecution. In June and July 2023, the Fund organized a bus tour throughout Alabama to share reproductive-healthcare information and resources with Alabamians. But for the Attorney General‘s threats of criminal prosecution, the Fund would have shared information about its abortion fund as well as the names of out-of-state abortion providers. The Executive Director of the Fund explained that “[t]he absence of this information, as a result of Defendant‘s threats of prosecution, diluted the value of our bus tour and hampered our ability to achieve our mission.” Fountain Decl. (Doc. 61-1) ¶ 10.
The plaintiffs find that the Attorney General‘s threats injure their relationships with their clients. As healthcare providers, they attest, they have an ethical obligation to help each patient evaluate all of their healthсare options in light of their personal circumstances. Impeding their ability to delivertailored care undermines their relationship with their patients--a relationship dependent on trust that the provider will give specific advice based on the patient‘s particular needs. Moreover, a WAWC healthcare provider explained: “By withholding information about and support for accessing legal abortion care outside of Alabama, we fear we may be exacerbating the confusion and distress that people who come to us for help are already experiencing, and contributing to potentially dangerous delays in patients accessing healthcare, putting their health and safety at risk. ... As just one example, last summer a staff member came to me distraught, in tears after a call with a pregnant individual who was seeking abortion information. When the staff member informed the caller that WAWC was unable to give her the specific information she was looking for,
Being prosecuted for assisting a client in obtainingan out-of-state abortion would impose significant financial, emotional, and reputational costs on the plaintiffs and their staff, even if the prosecution were ultimately unsuccessful.
E. Client Circumstances
Those seeking out-of-state abortions must arrange for them as quickly as possible. States have varying deadlines for legal abortions, and even a brief delay may make abortion legally unavailable. Moreover, according to Dr. Robinson, “While abortion is very safe, and far safer than childbirth,5 the risks associated with it increase as pregnancy progresses, as do its costs.” Robinson Decl. (Doc. 60-3) ¶ 41. “As a result,” she continues, “the longer it takes for someone to find an appropriate out-of-state abortion provider, and make the necessary arrangements to attend an appointment ... the
greater the risk to their health and safety from prolonged pregnancy and the abortion itself.” Id. ¶ 42.
Arranging out-of-state medical care requires finding a provider that can treat an individual given her gestational stage and medical conditions; planning travel; managing time away from home and work (e.g., arranging childcare and getting time off); and securing the necessary resources to pay for care and travel. According to an estimate by the Executive Director of WAWC, who also serves as a member of the Alabama Maternal Health Task Force, “more than half of the individuals who request WAWC‘s help in identifying, connecting with, and accessing safe out-of-state legal abortion care have had limited formal education, which may make it difficult to research and to identify reliable information,” and “a significant portion do not have reliable internet access and/or are not tech savvy, and so navigating the internet on their own to find information and resources about abortion care out of state is very difficult, if not
impossible.” Marty Decl. (Doc. 60-2) ¶ 23.
Additionally, as discussed above, most of the plaintiffs’ clients live in poverty or have low income.6 For these low-income women, financial assistance and practical support is likely necessary to travel out-of-state and pay for an abortion.
Without assistance from the plaintiffs, the plaintiffs’ clients will face significant, and potentially insurmountable, barriers to arranging legal out-of-state abortions. Unlike most individuals seeking abortions, the plaintiffs have the resources and connections to navigate the changing legal landscape across states. Dr. Robinson notes that “[AWC and her private practice] make every effort to stay abreast of the legal changes, which is no easy task.” Robinson Decl. (Doc. 60-3) ¶ 32. Through “personal and professional relationships with out-of-state providers who offer high-quality, lawful abortion care,” the healthcare providers can “readily contact these colleagues to verify gestational limits, wait times, and other aspects of the current state of abortion care in their states to ensure that people seeking to travel there could get the abortion care they need.” Id. “[E]ven those who are ultimately able to identify and travel to an out-of-state abortion provider without [WAWC‘s] assistance will likely experience delays in accessing
III. DISCUSSION7
As stated, the court must determine whether the Attorney General‘s threatened enforcement of Alabama law would violate three constitutional guarantees: the right to travel, the First Amendment, and the
A. Standing
The court will first address the threshold issue of standing. In general, to establish standing, a plaintiff must possess “‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court‘s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). “‘[A] plaintiff must demonstrate standing for each claim he seeks to press’ and ‘for each form of relief’ that is sought.” Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
The “irreducible constitutional minimum of standing” has three elements. Defenders of Wildlife, 504 U.S. at 560 (1992). A plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). If a plaintiff cannot meet these requirements, the court does not have jurisdiction over the case. See Stalley ex rel. U.S. v. Orlando Reg‘l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008).
All of the plaintiffs have satisfied the constitutional requirements for standing and thus have what is often referred to as ‘Article III standing’ to bring each claim. Due to the Attorney General‘s threats, Yellowhammer Fund has been unable to fulfill its organizational mission by providing abortion information, funding, and transportation to its clients, including advertising these resources on its bus tour across Alabama. The Fund also eliminated a staff position dedicated to overseeing the organization‘s efforts to reduce obstacles to abortions. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (finding an organization suffered injury and had standing when its mission was thwarted and it had to divert resources); Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1165-66 (11th Cir. 2008) (same). The three healthcare-provider plaintiffs suffer injury by being unable to meet their ethical obligations to provide care and recommendations appropriate for each patient‘s unique circumstances. See, e.g., Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1304 (11th Cir. 2017) (determining physicians and physician interest groups were harmed by and had standing to challenge a law censoring doctors from asking about particular safety concerns). These injuries could be redressed by a ruling for the plaintiffs granting the requested prospective relief. Thus, all of the requirements
Instead, the Attorney General focuses his attack on the issue of third-party standing, arguing that Yellowhammer, AWC, and Dr. Robinson lack standing to bring claims asserting a violation of their clients’ right to travel.8
Generally, a party “must assert his own legal rights and interests, and cannot rest his claim to relief on thе legal rights or interests of third parties.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal citation omitted). This principle reflects the assumption that “the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation.” Id. Unlike Article III standing, which is a constitutional and jurisdictional requirement, the limitations on asserting the rights of third parties are prudential, meaning they are “flexible and not jurisdictional in nature.” Am. Iron & Steel Inst. v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999). Prudential requirements are “judicially self-imposed limits on the exercise of federal jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal citation omitted).
That said, the Supreme Court has consistently recognized a “class of cases where [it] ‘allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.‘” Kowalski, 543 U.S. at 131 (emphasis in original) (quoting Warth, 422 U.S. at 510).9 One such case, Craig v. Boren, 429 U.S. 190 (1976), is particularly illustrative. In Craig, a beer vendor sued to prevent the enforcement of a statute that prohibited the sale of beer to men under the age of 21 and to women under the age of 18. The vendor argued that the statute unconstitutionally discriminated against men between the ages of 18 and 20. The Supreme Court held that the vendor, because she had Article III standing, was “entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.” Id. at 195 (quoting Griswold v. Connecticut, 381 U.S. 479, 481 (1965)). The Court further explained that, because the statute prohibited vendors from distributing beer to young men rather
The same reasoning holds true here. Just as the statute in Craig was directed at the vendor, the Attorney General has addressed his threats of enforcement to the plaintiffs and their staff. He has declared his intent to prosecute any “entity” or “group” that facilitates out-of-state abortions. Suelzle Decl. (Doc. 61-3) ¶ 6. He specifically mentioned “groups out of Tuscaloosa” as organizations of interest, apparently referring to Yellowhammer Fund. Id. The plaintiffs contend that targeting them for helping their clients leave Alabama to obtain medical services that are lawful in other States infringes on their clients’ right to travel. As in Craig, the plaintiffs, by virtue of being the target of the Attorney General‘s enforcement, are the “obvious claimants” and “least awkward challengers.” Craig, 429 U.S. at 197.
The Attorney General attempts to distinguish Craig on various fronts,10 but he forgets that Craig is just one example of the broader principle that litigants threatened with enforcement are well positioned, if not entitled, to assert the rights of third parties that are intertwined with the conduct the litigants seek to pursue. For instance, in Griswold v. Connecticut, the Court found that the healthcare providers who wished to provide contraception to patients had standing to assert the constitutional rights of the married people they aided in obtaining contraception, reasoning that a person “[c]ertainly ... should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be a crime.” 381 U.S. 479, 481 (1965).
These cases stand for the principle that litigants threatened with enforcement are well positioned to assert the rights of third parties that are intertwined with the conduct the litigants seek to advance. The Attorney General contends that this principle is inapplicable to the plaintiff organizations because Alabama law does not provide for criminal liability for conspiracy for corporations--only for individuals. However, he has threatened to prosecute the plaintiff organizations’ staff with the express purpose of frustrating the work of the “entit[ies]” and “group[s]” for whom they work. Suelzle Decl. (Doc. 61-3) ¶ 6. The organizational plaintiffs, of course, cannot function without their staff members. As far as the Craig rationale is concerned, enforcement against the plaintiffs’ staff is the functional equivalent of enforcement against the organizations themselves, considering that the Attorney General‘s stated objective is to target the organizations. Moreover, courts have found third-party standing under Craig when an organization sues on its own behalf. See Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199, 216 (4th Cir. 2020) (concluding that Atlantic Guns, a gun-dealing organization, had third-party standing to assert its potential customers’ Second Amendment rights).
Consistent with the logic of Craig, the Supreme Court has long allowed parties
In fact, in Crandall, the Court held that a tax imposed on common carriers for each passenger was a violation of the passengers’ right to travel; nonetheless, because the liability fell on the common-carrier companies and not the passengers, the court permitted an agent of the stagecoach company to assert the passengers’ right to travel despite the fact that he did not travel. See Crandall, 73 U.S. at 39; Ex parte Crandall, 1 Nev. 294, 300 (1865).11
The travel restrictions in this matter are analogous. Just as the tax per passenger on common carriers was a violation of the passengers’ right to travel, the Attorney General‘s threatened enforcement of Alabama‘s inchoate criminal statutes is similarly an unconstitutional burden on the plaintiffs’ clients’ right to travel. Moreover, the Attorney General has threatened to prosecute groups promoting the facilitation of out-of-state abortions. See Suelzle Decl. (Doc. 61-3) ¶ 6. Thus, as the target of criminal liability, the plaintiffs, like the agent in Crandall, can invoke their clients’ right to travel regardless of whether they have physically traveled.
Admittedly, the Supreme Court has used a two-factor test to determine whether plaintiffs have standing to assert third-party rights: first, whether the plaintiffs have a ‘close relationship’ to the third parties; and, second, whether the third parties are ‘hindered’ from asserting their own rights. See Powers v. Ohio, 499 U.S. 400, 411 (1991). While, as demonstrated in the cases discussed above, the Supreme Court has “been quite forgiving with these criteria,” Kowalski, 543 U.S. at 130, in the “class of cases where [The Supreme Court has] ‘allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights,‘” Kowalski, 543 U.S. at 131 (emphasis in original) (quoting Warth, 422 U.S. at 510), the plaintiffs here each still satisfy the standard prudential requirements to assert their clients’ right to travel.12
Turning to the first of those two factors, plaintiffs must ordinarily establish that their relationship with the third party whose rights they wish to assert is sufficiently close such that the
The Attorney General contends that the plaintiffs do not have a close relationship with their clients because they are “random callers.” AG‘s Rеsp. (Doc. 66) at 5. In his telling, only such intimate relationships as those between parents and children, and guardians and wards, are sufficiently ‘close’ to satisfy the prudential factor. As an initial matter, the evidence reflects that at least two of the plaintiffs who bring the right-to-travel claim on behalf of their clients--Dr. Robinson and AWC--provide gynecological care and prenatal care to patients, and that they want to be able to further assist their patients with obtaining out-of-state legal abortions. It is not accurate to call these patients “random callers.” Moreover, as is true as to the healthcare providers, Yellowhammer Fund currently provides services to clients and would like to resume its services to include the assistance of out-of-state legal abortions, which it previously provided. And as to any so-called “random callers,” they are actual callers the Fund would serve absent the Attorney General‘s threats. It is those threats that keep them from becoming actual clients. In any case, the Attorney General‘s argument is controverted by the many cases in which the Supreme Court recognized a litigant‘s standing to assert third-party rights despite the relationship between the litigant and the third party being quite unlike a parent-child relationship. See, e.g., Powers, 499 U.S. at 413.13
The Attorney General misinterprets what “close” entails for the close-relationship factor of the third-party standing test. Supreme Court jurisprudence makes clear that a close relationship is not dependent on the duration of a relationship. In fact, in Powers--the totemic case enumerating the two-factor, third-party standing test--the litigant (the criminal defendant) and the third parties (the jurors) had not spent any time with one another, but the Court still found the defendant had standing to complain about racial discrimination in the jury-selection process. The close-relationship factor was justified based on their “common interest in eliminating racial discrimination from the courtroom.” Id. at 413. A doctor-patient or a helper-client relationship with intertwined pursuits is just as close, if not closer than, many of the close relationships where the Court has upheld third-party standing. Unlike the hypothetical clients in Kowalski, a case where attorneys lacked third-party standing to bring
needs, regardless of whether the client has contacted them once or is existing.14
Here, the clients’ right to travel is inextricably bound up with the plaintiffs’ desire to assist them in that travel. The plaintiffs’ and their clients’ interests are essentially identical, as the plaintiffs wish to provide services that their clients seek. The plaintiffs wish to carry out their mission to provide information, counseling, and logistical support to individuals seeking out-of-state abortions. And, because the plaintiffs face the threat of enforcement should they resume facilitating legal out-of-state abortions, they have every incentive to litigate their claim vigorously.
The plaintiffs also satisfy the second of the two factors for standing to assert third-party rights: that the third parties be hindered in their ability to assert their own rights. When third parties do not assert their own rights, it might suggest that their “right[s] [are] not truly at stake, or truly important to [them].” Singleton, 428 U.S. at 116. However, if “some genuine obstacle” hinders the third parties from asserting their rights, “the third party‘s absence from court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is in court becomes by default the right‘s best available proponent.” Id.
The plaintiffs’ clients face multiple obstacles to asserting their rights. Even a meritorious lawsuit is unlikely to reach a merits determination until after the window to obtain an abortion has passed. The sheer unlikelihood of obtaining personal relief before the end of pregnancy will inevitably deter clients from filing their own suits. Clients who are unlikely to succeed in obtaining an abortion through litigation have “little incentive to set in motion the arduous process needed to vindicate [their] own rights.” Powers, 499 U.S. at 415.
Couple the unlikelihood of obtaining personal relief before the end of pregnancy with the added hurdle of needing to promptly find safe, credible, out-of-state abortion care in the absence of trusted sources, and clients are even more unlikely to be in a position to assert their rights in court, let alone “with the necessary zeal and appropriate presentation.” Kowalski, 543 U.S. at 129.
The women who need the plaintiffs’ assistance live in poverty or with low incomes, many are uninsured, and some lack housing. Moreover, a significant portion of the plaintiffs’ clients have had limited formal education. Many do not have reliable internet access and/or are not technologically savvy, so navigating the internet on their own to find information and resources about abortion care out of state is very difficult, if not impossible. Some have limited English proficiency and few reliable abortion resources are available in other languages. Meanwhile, abortion has strict time limits. Without plaintiffs’ assistance,
Other obstacles abound. For one, the plaintiffs’ clients may be deterred from bringing their own suits by a desire to protect their privacy. See Colon v. Bureau of Alcohol, No. 8:23-CV-223-MSS-UAM, 2024 WL 309975 (M.D. Fla. Jan. 26, 2024) (finding that a gun vendor‘s customers’ privacy concerns regarding their status as firearms owners was a sufficient hindrance for third-party standing, and noting that “[c]ourts have regularly found privacy to be a legitimate hindrance sufficient to confer jus tertii standing in cases involving citizenship concerns, medical procedures, and contraceptives“), appeal docketed, No. 24-10897 (11th Cir. Mar. 26, 2024). Alabama has a well-established climate of stigma, harassment, and violence relating to abortion. See Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1333-34 (M.D. Ala. 2014); W. Ala. Women‘s Ctr. v. Williamson, 120 F. Supp. 3d, 1296, 1308, 1321-22 (M.D. Ala. 2015). Pregnant Alabamians seeking a legal abortion out of state are likely to face hostility in their community if they draw attention to their desire to obtain an abortion. These privacy concerns make the plaintiffs’ clients “reluctant to raise [legal] claims for fear of provoking additional policing measures” or other threats. Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1044 (11th Cir. 2008). Although the Attorney General emphasizes that litigants who wish to maintain their anonymity can sue under a pseudonym, such an argument was considered in Singleton and was made in the June Medical dissents, but it has yet to carry the day.
The Attorney General argues that the plaintiffs’ clients cannot be hindered from filing suit because other pregnant plaintiffs in other legal actions have been willing to assert similar rights regardless of these obstacles. But the existence of a hindrance turns on whether “some genuine obstacle” to the third-parties’ assertion of their own rights exists, not whether that obstacle can theoretically be or has been overcome. Singleton, 428 U.S. at 116. A few individuals may be willing to brave the risks, costs, and inconveniences of litigation, but that does not negate the magnitude of those risks, costs, and inconveniences or the likelihood that they will significantly deter others. In light of the time-sensitive nature of pregnancy, the hurdle of devoting time to researching and securing reliable information on abortion providers and resources for travel in the absence of trusted sources, as well as the clients’ privacy concerns and financial vulnerability, the plaintiffs have sufficiently alleged a hindrance in their clients’ ability to assert their own rights.
The Attorney General offers one final objection to the plaintiffs’ standing to assert their clients’ rights that warrants discussion. He misreads Dobbs insofar as he suggests that the Supreme Court, in eight words, upended the law of standing. Dobbs was not a case about standing, and it did not overrule any precedent except where the Court explicitly said so. Accordingly, this court has applied the traditional prudential standards governing when litigants
In sum, the court finds that Yellowhammer Fund has standing to assert the right to travel on its own behalf, and Yellowhammer, AWC, and Dr. Robinson also have standing to bring right-to-travel claims on their clients’ behalf.
The plaintiffs also all have standing to bring their First Amendment claims. The Fund brings a First Amendment challenge on its own behalf, while the plaintiff healthcare providers--WAWC, AWC, and Dr. Robinson--bring their claim on behalf of themselves and their staff. Though the Attorney General previously challenged the plaintiff healthcare providers’ standing to assert the rights of their staff, he concedes that this challenge is moot if the plaintiffs have Article III standing for their own First Amendment claims. See AG‘s Resp. (Doc. 66) at 4 n.2; Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263-64 (1977) (finding the Court did not need to determine whether a real-estate company could bring claims on behalf of its prospective tenants because one of those tenants was a party to the suit with Article III standing). Because the plaintiff healthcare providers have Article III standing to assert their First Amendment claims, and because one of their staff members, Dr. Robinson, is a party to the suit and is asserting those same rights herself, under Arlington Heights, her presence in this suit relieves the court from having to determine whether the three plaintiff healthcare providers have standing to assert their staff members’ rights.
Finally, the court finds that Yellowhammer Fund has standing to bring its due-process claim on its own behalf for the same reason it has Article III standing for its other claims: the Fund has been unable to fulfill its organizational mission and has had to divert its resources because of the Attorney General‘s threatened prosecutions. Once again, the Attorney General does not dispute the Fund‘s standing to bring this claim.
B. The Right to Travel
Yellowhammer Fund and two of the healthcare providers, AWC and Dr. Robinson, assert a right-to-travel claim on behalf of their clients. The Fund also brings a right-to-travel claim on its own behalf. These plaintiffs argue that the right to travel forbids the Attorney General from using Alabama law to prosecute someone for facilitating out-of-state abortions in States where they are lawful. The Attorney General responds that Alabama can prohibit their abortion-related assistance without violating their clients’ constitutional rights. Regarding the Fund‘s claim on its own behalf, the Attorney General contends that only natural persons, and not organizations, enjoy a right to travel, and that, even if an organizational right to travel existed, it would not protect travel that furthers criminal conduct.
The court concludes that the Attorney General‘s threatened enforcement amounts to a violation of the plaintiffs’ clients’ right to travel. The court will, however, abstain from deciding whether Yellowhammer Fund enjoys a right to travel since full relief can be granted without resolving that novel constitutional question.
1. The Clients’ Right to Travel
Because Yellowhammer Fund and healthcare providers AWC and Dr. Robinson all have standing to assert a right-to-travel claim on behalf of their clients, the court now turns to whether the claim has merit. The court finds that the claim is meritorious because (a) the right to travel includes the right both to move physically
a. The Right to Travel Includes the Right to Do What Is Lawful Where One Travels
The central disagreement between the plaintiffs and the Attorney General concerns the scope of the right to travel. The plaintiffs assert that the right to travel includes both the right to physically move across state borders and the right to engage in legal conduct in the destination State. The Attorney General insists that “the relevant statutes do not even implicate the right to travel, and even if they do, the statutes withstand scrutiny.” AG‘s Mot. for Summ. J. (Doc. 62) at 16. The history and jurisprudence of the right to travel overwhelmingly support the plaintiffs.
The right to interstate travel is one of our most fundamental constitutional rights. It cultivates national citizenship and curbs state provincialism, and thus was key to fusing a league of States into a true federal union. See United States v. Guest, 383 U.S. 745, 757-58 (1966); id. at 767 (Harlan, J., concurring). Indeed, while the right to travel is not enumerated in the Constitution, it is so essential to the structure and character of our nation that the Court has found the right manifested in several constitutional provisions. See id. at 757-59 (noting that the Court has identified several sources of the right).15 “The right has also been inferred from the federal structure of government adopted by our Constitution.” Att‘y Gen. of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986) (plurality opinion, Brennan, J.).
The right to travel has deep historical roots, and it has long encompassed more than the mere movement of persons across borders. Indeed, as the court will explain, travel has consistently been protected precisely so that people would be free to engage in lawful conduct while traveling. The right can be traced back at least as far as the Magna Carta, which ensured that merchants could travel for the purpose of engaging in commerce. See Magna Carta (1215) cl. 41; see also Kent v. Dulles, 357 U.S. 116, 125-26 (1958); Kerry v. Din, 576 U.S. 86, 92 (2015) (plurality opinion, Scalia, J.) (explaining that Blackstone‘s articulation of the “personal liberty of individuals” protected by the Magna Carta and incorporated into the Constitution includes “the power of locomotion, of changing situation, or removing one‘s person to whatsoever place one‘s own inclination may direct; without imprisonment or restraint.“). In the United States, the right was explicitly included in Article IV of the Articles of Confederation, and it similarly guaranteed that citizens “shall have free ingress and regrеss to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof.” Articles of Confederation of 1781, art. IV, para. 1. Thus, in addition to protecting
While Article IV of the Constitution omitted the express reference to “free ingress and regress,” “Charles Pinckney, who drafted the current version of Article IV, told the Convention that this Article was ‘formed exactly upon the principles of the 4th article of the present Confederation.‘” Zobel v. Williams, 457 U.S. 55, 79 (1982) (O‘Connor J., concurring) (quoting 3 M. Farrand, Records of the Federal Convention of 1787, p. 112 (1934)). Considering Pinckney‘s statement and that
Because the right to travel has been assumed from our nation‘s founding, the Supreme Court has persistently refused to delineate precisely from where in the Constitution the right derives. See Soto-Lopez, 476 U.S. at 903 (“Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases.“); Shapiro v. Thompson, 394 U.S. 618, 630 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974) (“We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.“); Guest, 383 U.S. at 759 (“Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.“). In Saenz v. Roe, the Court explained that the right to travel “embraces at least three different components,”16 but did not limit the scope of the right to those three. 526 U.S. 489, 500 (1999) (emphasis added). And once again, the Court emphasized that it “need not identify the source” of the right to travel. Id. at 501.17
The right to
This principle extends to people who enter a State to procure medical services, including abortions. See Doe v. Bolton, 410 U.S. 179, 200 (1973) (noting that the right to travel “protect[s] persons who enter Georgia seeking the medical services that are available there“), abrogated in part on other grounds by Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215 (2022)18; Bigelow, 421 U.S. at 822-24 (emphasizing that “[t]he Virginia Legislature could not ... prevent its residents from traveling to New York to obtain [abortion] services or ... prosecute them for going there.“); accord Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (holding that a durational residency requirement for state-funded medical care generally violated the right to travel).
Perhaps most noteworthy is that Justice Kavanaugh, while voting in Dobbs to overturn Roe v. Wade, reaffirmed
this principle with confidence when he explained that the question whether a State may “bar a resident of that State from traveling to another State to obtain an abortion” was “not especially difficult as a constitutional matter” because “the constitutional right to interstate travel” would prohibit such state action. Dobbs, 597 U.S. at 346 (Kavanaugh, J., concurring). Alabama‘s criminal jurisdiction does not reach beyond its borders, and it cannot punish what its residents do lawfully in another State. “Nor may Alabama impose sanctions ... in order to deter conduct that is lawful in other jurisdictions.” BMW of N. America, Inc. v. Gore, 517 U.S. 559, 573 (1996) (finding that lawful out-of-state conduct could not be considered when awarding punitive damages in a state that prohibited that same conduct).
Accordingly, one of the first notable judicial recognitions of the right to travel included in its list of privileges and immunities the “right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise.” Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (Washington, J., on circuit) (emphasis added). Similarly, the Supreme Court has explained that the
The Attorney General suggests that the
Camden involved a challenge to a municipal ordinance in Camden, New Jersey, which required “at least 40 % of the employees ... working on city construction projects be Camden residents.” 465 U.S. at 210. The lower court concluded that the statute “did not violate the Privileges and Immunities Clause because it was not aimed primarily at out-of-state residents,” but was instead intended to favor a certain city‘s residents. However, the Supreme Court disagreed. It found that, even though the ordinance “almost certainly affects more New Jersey residents not living in Camden than it does out-of-state residents,” id. at 213, and
Camden stands for the principle that discrimination by a State between different classes of its own residents is not subject to review under the
While it is true that previous right-to-travel cases have generally concerned States that discriminated against visitors from other States, this merely reflects the nature of the lawsuits that came before the courts and the extraordinary nature of the Attorney General‘s actions in seeking to prevent residents of his own State from engaging in lawful conduct in other States. Neither the text nor the purpose of the
As the historical roots of the right to travel demonstrate, the Constitution protects the right to cross state lines and to take advantage of lawful opportunities available in other States. The Attorney General‘s characterization of the right to travel as merely a right to movе physically between the States contravenes history, precedent, and common sense. Travel is valuable precisely because it allows us to pursue opportunities available elsewhere. “If our bodies can move among states, but our freedom of action is tied to our place of origin, then the ‘right to travel’ becomes a hollow shell.” Seth F. Kreimer, Lines in the Sand: The Importance of Borders in American Federalism, 150 U. Pa. L. Rev. 973, 1007 (2002). The Attorney General‘s theory of the right to travel, which would allow each State to force its residents to carry its laws on their backs as they travel, “amount[s] to nothing more than the right to have the physical environment of the states of one‘s choosing pass before one‘s eyes.” Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future—or Reveal the Structure of the Present?, 113 Harv. L. Rev. 110, 152 (1999). Such a constrained conception of the right to travel would erode the privileges of national citizenship and is inconsistent with the Constitution.
b. The Right to Travel Includes the Right to Obtain Necessary Assistance to Travel
Having established that the right to travel protects both entering other
“A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Soto-Lopez, 476 U.S. at 903 (internal citations omitted). The Attorney General‘s threatened prosecutions are intended to deter and prevent people from traveling out-of-state to receive lawful abortions. He insists that the intent behind his prosecutorial threats is to “prohibit[] elective abortions and conspiracies to procure them” even when those abortions are lawfully obtained in “out-of-state destinations.” AG‘s Mot. for Summ. J. (Doc. 62) at 22. State restrictions with the primary objective of preventing specific lawful out-of-state conduct are just as constitutionally impermissible as restrictions aimed at рreventing travel generally. Moreover, not only are the Attorney General‘s threats intended to deter travel, but they have actually deterred travel. The plaintiffs have halted providing information and material support to their clients who rely on them to be able to travel outside of Alabama to obtain an abortion. Perhaps because under Alabama law he cannot prosecute Alabamians who travel out of state for legal abortions, the Attorney General seeks to target those who would provide necessary assistance to Alabamians to make that travel possible. However, such backdoor circumvention is unconstitutional. See Nat‘l Rifle Ass‘n of Am. v. Vullo, 602 U.S. 175, 190 (2024) (“[A] government official cannot do indirectly what []he is barred from doing directly.“). Supreme Court precedent rejects travel restrictions directed toward those who facilitate travel for others. Crandall v. Nevada, 73 U.S. 35 (1867), and Edwards v. California, 314 U.S. 160 (1941), exemplify this point.
At issue in Crandall was a Nevada statute that imposed on common carriers a one-dollar tax for each passenger leaving the State; a related statute required people engaged in the common-carrier business to submit monthly reports under oath regarding the number of passengers transported. An agent of a stagecoach company who was arrested for refusing to submit the required report of the number of passengers on the company‘s coaches challenged the constitutionality of the law. See 73 U.S. at 36. The Court held that the tax was an unconstitutional burden on the right of American citizens to pass from one State to another.
Likewise, in Edwards v. California, the Supreme Court struck down a California law that made it a crime to bring or assist in bringing into the State any indigent person who was not a California resident. 314 U.S. 160 (1941). Thus, the California law subjected only those who assisted others in travel to criminal liability. The Court nonetheless determined that the law violated indigent people‘s right to travel. It did so even despite recognizing that the State had passed the law to address “grave and perplexing social and economic” issues. Id. at 173. The Court held that regardless of “‘the wisdom, need, or appropriateness’ of the legislative efforts of the States to solve such difficulties,” the Constitution prohibited such a burden on facilitating travel. Id. (quoting Olsen v. Nebraska ex rel. W. Reference & Bond Ass‘n, 313 U.S. 236, 246 (1941)).
A straightforward application of Crandall and Edwards resolves the right-to-travel claim brought on behalf of the plaintiffs’ clients. Just as California could not prosecute Edwards for assisting his indigent brothеr-in-law with travel, and the State of Nevada could not tax common carriers who transport people out of the state, the Attorney General cannot prosecute those who assist people in Alabama to travel out of state to obtain a lawful abortion. Denying--through threats of criminal prosecution--assistance to the plaintiffs’ clients, many of whom are financially vulnerable, in their effort to avail themselves of the advantages available in another State, is a greater burden on travel than the one-dollar tax per passenger in Crandall, and it is precisely what was held unconstitutional in Edwards.
The Attorney General‘s acknowledgement that Alabama law does not prohibit individuals from traveling out of state on their own to obtain an abortion--and the concomitant fact that some pregnant Alabamians may leave the State to procure an abortion without assistance--is immaterial. The same was true in Crandall, where passengers were not taxed if they chose to leave Nevada using a form of transportation other than common carriers, and in Edwards, where the statute did not subject indigent people to criminal liability if they traveled to California on their own. The fact that the burdened individuals theoretically could have left Nevada or entered California on their own was irrelevant to the Supreme Court‘s constitutional analysis: the Court still held that a penalty on those who assisted the travel of others was unconstitutional. If individuals could be punished for assisting others in exercising their right to travel, “[t]he right to travel is a phantom.” Joseph W. Singer, Conflict of Abortion Laws, 16 Ne. U. L. Rev. 313, 421 (2024). “We do not, in general, walk from state to state, and not all of us have cars or the ability to drive ourselves to another state. For that reason, it is unconstitutional to punish someone for helping another person to exercise their right to travel to another state to take advantage of its laws.” Id.
The Attorney General argues that Crandall and Edwards are distinguishable because the travel restrictions at issue in those cases operated categorically, regardless of the reasons for which people were traveling. Again, however, the right to travel includes the right to do what is lawful in another State while traveling, so restrictions that prohibit travel for specific out-of-state conduct are unconstitutional just as those that impede travel generally are. There is no end-run around the right to trаvel that would allow States to burden travel selectively and in a patchwork fashion based on whether they approve or disapprove of lawful conduct that their residents wish to engage in outside their borders.19
prevent the free movement of citizens from one State to another.” Edwards, 314 U.S. at 179 (Douglas, J., concurring). The Attorney General also points to United States v. Wheeler, 254 U.S. 281, 299 (1920), to support his assertion regarding Crandall, see AG‘s Reply (Doc. 68) at 6, but the relevant part of Wheeler was explicitly rejected in Guest, 383 U.S. at 759 n.16 (“Whatever continuing validity Wheeler may have as restricted to its own facts, the dicta in the Wheeler opinion relied on by the District Court in the present case have been discredited in subsequent decisions. Cf. Edwards, 314 U.S. at 180 (1941) (Douglas, J., concurring); United States v. Williams, 341 U.S. 70, 80 (1951).“).
requirements for sex offenders, see Doe v. Moore, 410 F.3d 1337, 1348-49 (11th Cir. 2005); United States v. Simington, No. EP-10-cr-2275-KC, 2011 WL 145326, at *9-10 (W.D. Tex. 2011) (Cardone, J.) (unpublished opinion); a requirement to present identification at an airport or be subjected to a more extensive search, Gilmore v. Gonzales, 435 F.3d 1125, 1136-37 (9th Cir. 2006); and federal restrictions placed on an airport that required that those seeking to fly to certain other States either use a connecting flight or use another airport twelve miles away for direct flights, Cramer v. Skinner, 931 F.2d 1020, 1031-33 (5th Cir. 1991).
Citing Jones v. Helms, 452 U.S. 412 (1981), Saenz v. Roe, 526 U.S. 489 (1999), and Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), the Attorney General asserts that a State may impose “reasonable burdens” to one‘s right to travel if the State has a legitimate purpose. AG‘s Mot. for Summ. J. (Doc. 62) at 19. In essence, the Attorney General lowers the standard of scrutiny for violating one‘s right to travel to a rational-basis test. Not only is the Attorney General misguided in his approach to the right-to-travel analysis, but his citation to Saenz for a supposed reasonableness standard is completely at odds with the Court‘s findings in that case. 526 U.S. at 500, 504. There, California contended it should be subject to a rational-basis test, and the United States, participating as amicus curiae, advocated for intermediate scrutiny. See id. at 500. The Court denied both requests for a laxer standard, reiterating that “a penalty on the exercise of the right to travel violated the
The Attorney General attempts to anаlogize his action to the Supreme Court‘s holding in Jones, which permitted Georgia to aggravate a misdemeanor to a felony offense when a person charged or convicted
In sum, the cases the Attorney General cites are quite unlike the one before the court. In contrast, the Attorney General is attempting to prohibit, in effect, all abortion-related travel that would require assistance from others. This is no ‘mere inconvenience’ or ‘mere reasonable regulation,’ especially considering that most of the plaintiffs’ clients lack the financial
resources to travel on their own. Considering the complexity associated with finding, evaluating, and arranging medical care in another State, especially amidst an ever-changing legal landscape and varying deadlines for abortions under other States’ laws, it would be difficult for anyone to arrange for an out-of-state abortion without at least some assistance.
Accordingly, the plaintiffs have sufficiently alleged that the Attorney General‘s threatened enforcement would violate their clients’ right to travel. The court will therefore enter summary judgment in favor of the plaintiffs with respect to the right-to-travel claim asserted on the plaintiffs’ clients’ behalf.
2. Yellowhammer Fund‘s Right to Travel
Finally, Yellowhammer Fund brings a right-to-travel claim on its own behalf. The Fund represents that previously it “provided direct transportation for pregnant people who needed assistance traveling to their abortion appointments,” including “dr[iving] pregnant people across state lines for abortion care.” Fountain Decl. (Doc. 61-1) ¶ 16. But for the Attorney General‘s threats, the Fund would continue assisting people seeking lawful abortions. Id. ¶ 30. The Attorney General argues that the right to travel belongs only to “a flesh and blood, physical citizen,” and not to organizations such as the Fund. AG‘s Mot. for Summ. J. (Doc. 62) at 20. The Fund, of course, disagrees.
Because the court has very limited legal authority to guide its analysis of this cliam and because the court can resolve this case and grant full relief without reaching this claim, the court will follow the principle of constitutional avoidance and decline to resolve this claim.21
All four plaintiffs contend that the Attorney General‘s reading of Alabama‘s criminal laws, including those punishing inchoate offenses and codifying accomplice liability, violates the freedom of speech under the
The Fund makes two other
Though the Attorney General previously challenged the healthcare providers’ standing to assert the rights of their staff, he acknowledges in his summary-judgment response that this challenge is moot since the plaintiffs have Article III standing for their own
1. The Free-Speech Challenge
a. Content- and Viewpoint-Based Restriction
Relying on the
“[A]s a general matter, ‘the
Viewpoint-based regulations are “an egregious form of content discrimination.” Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995) (citation omitted). The Eleventh Circuit Court of Appeals has interpreted Supreme Court caselaw to say that viewpoint-based restrictions are prohibited “seemingly as a per se matter.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1126 (11th Cir. 2022); see also Otto v. City of Boca Raton, Fla., 981 F.3d 854, 864 (11th Cir. 2020) (suggesting viewpoint-based discrimination is unconstitutional per se); see also Minn. Voters All. v. Mansky, 585 U.S. 1, 11 (2018) (“[R]estrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.“).
The Attorney General‘s threatened enforcement of Alabama‘s criminal laws imposes a content- and viewpoint-based restriction on speech. It restricts information and discussion about a specific subject--abortion--to forbid encouraging a specific viewpoint--access to a legal out-of-state abortion.
It is unclear whether a content- and viewpoint-based restriction is categorically unconstitutional or subject to strict scrutiny. If restrictions based on viewpoint are unconstitutional “seemingly as a per se matter,” the court need not proceed further. Speech First, Inc., 32 F.4th at 1126. However, even if strict scrutiny is the appropriate level of scrutiny, the Attorney General‘s restriction on speech cannot meet such a demanding standard.
b. Exceptions to First-Amendment Strict Scrutiny
There are a few “narrowly limited classes of speech” that the government may regulate without having to satisfy strict scrutiny. United States v. Stevens, 559 U.S. 460, 468-69 (2010) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)). These categories include obscenity, defamation, fraud, incitement, and speech integral to unlawful conduct. Seе Stevens, 559 U.S. at 469. The Supreme Court has described these categories as “historic and traditional” because regulations of the speech they encompass “have never been thought to raise any Constitutional problem.” Id. at 468-49 (quoting Chaplinsky, 559 U.S. at 571-72). The Attorney General contends that insofar as the Alabama statutes at issue regulate speech, they reach only speech integral to unlawful conduct and need not satisfy strict scrutiny. He does not dispute that providing abortion-related services would require the plaintiffs and their staff to engage in speech or that his threats have chilled that speech. Nonetheless, in his view, the Alabama statutes are exempt from strict scrutiny because “speech integral or in furtherance of criminal conduct is not protected by the
The exception to strict scrutiny for speech integral to unlawful conduct comes from Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). There, the Supreme Court observed “that the constitutional freedom for speech ... [does not] extend[]
Simple as this argument seems, it ignores the issue at the heart of this case: that the plaintiffs and their staff wish to help their clients access abortions in States where abortions are lawful. The Attorney General has not identified any instance of Giboney being held to authorize a prosecution for steps taken inside one State toward an act that would be permitted, or even legally protected, in another. The question the court must confront is whether Giboney‘s exception to strict scrutiny for content-based restrictions on speech can accommodate these novel circumstances.
It bears repeating that Giboney represents a “narrowly limited” exception to the general rule that content-based restrictions on speech must satisfy strict scrutiny. Stevens, 559 U.S. at 468-69 (quoting Chaplinsky, 315 U.S. at 571-72); see also United States v. Alvarez, 567 U.S. 709, 717-18 (2012); United States v. Williams, 553 U.S. 285, 288 (2008). The categories of regulation exempt from strict scrutiny are narrow largely because even speech related to unlawful conduct can have constitutional value, including the potential to inform, critique, entertain, and otherwise enrich the “interchange of ideas.” Dennis v. United States, 341 U.S. 494, 549 (1951) (Frankfurter, J., concurring in the judgment); see also Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1111 (2005).
Against this backdrop, the Attorney General urges the court to extend Giboney‘s immunity into new terrain: efforts to perform acts that would be unlawful in the State where they are planned but lawful (and potentially even constitutionally protected) in the State where they would occur. The court cannot accept the Attorney General‘s expansive interpretation of Giboney, which would have dangerous consequences for the freedom of expression.
The Attorney General‘s reading of Giboney would enable him to regulate conduct that he lacks the authority to prosecute directly by burdening speech. See Nat‘l Rifle Ass‘n of Am. v. Vullo, 602 U.S. 175, 190 (2024) (“[A] government official cannot do indirectly what []he is barred from doing directly.“). Alabama‘s criminal jurisdiction does not reach beyond its borders, and it cannot pass a statute explicitly punishing what its residents do in another State: “[A]n act done within the territorial limits of [one state], under authority and license from that state, ... cannot be prosecuted and punished by [another state].” Nielsen v. Oregon, 212 U.S. 315, 321 (1909). Unable to proscribe out-of-state abortions, the Attorney General interprets state law as punishing the speech necessary to obtain them. Giboney, however, is intended only to recognize a narrow and well-established class of speech that governments have historically regulated, not as a tool to reach regulatory ends that the Constitution otherwise prohibits governments from realizing. See Stevens, 559 U.S. at 468-69.
For the Giboney exception to have tractable limits, the speech at issue must
For conspiracy, this means the State cаnnot “punish conspiracy to advocate something, the doing of which it may not punish.” Dennis, 341 U.S. at 575 (Jackson, J., concurring in the judgment). In order for speech to be integral to criminal conduct, the underlying nonspeech conduct must be criminal. See Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. at 1051. It follows then that for a conspiracy charge, the nonspeech conduct underlying an agreement must be unlawful. See 15A C.J.S. Conspiracy § 118 (“To constitute a criminal conspiracy, either the object of the conspiracy or the means of accomplishing it must be illegal ... No one can be held criminally liable for conspiracy to do acts that are perfectly lawful and to which there is no criminal objective.“); 16 Am. Jur. 2d Conspiracy § 1 (“The crime of conspiracy can only be defined in conjunction with a second crime, that is, the substantive crime involved in the conspiracy.“). Here, the nonspeech conduct--obtaining an abortion in a State where abortion is legal--is not unlawful, so any speech connected to obtaining such care is not integral to, nor in furtherance of, criminal conduct and is therefore not an exception to
Put another way, the Attorney General‘s reading of Giboney would render meaningless the requirement that the speech being regulated be integral to unlawful conduct. Without a separate course of unlawful conduct that the plaintiffs’ and their staff‘s spеech would further, the only ‘conduct’ that could be the basis of the Attorney General‘s threatened prosecutions would be speech that the State regards as politically unpopular and morally disfavored. The
c. Strict Scrutiny Analysis
Having established that the Attorney General‘s attempt to invoke Giboney is unavailing, the court turns to whether the plaintiffs are entitled to summary judgment on their freedom-of-speech claim. The plaintiffs argue that the State plans to initiate a prosecution under Alabama‘s statutes punishing conspiracy, complicity, and other possibly other inchoate offenses based on the content and the viewpoint of the speech they and their staff wish to engage in about out-of-state abortions.
“Content-based regulations are presumptively invalid,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and are permissible only if they survive strict scrutiny. See Reed, 576 U.S. at 159. The Eleventh Circuit has suggested, without deciding, that viewpoint-based regulation is prohibited per se. See Speech First, Inc., 32 F.4th at 1126; Otto, 981 F.3d at 864. If so, the threatened prosecutions are per se unconstitutional. In any case, as discussed below, even if viewpoint-based restrictions are subject to strict scrutiny, the Attorney General‘s threats still fail to pass constitutional muster.
To survive strict scrutiny, the State bears the burden to “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 576 U.S. at 171. Thus, the Attorney General must prove that prosecuting people who share information with others about lawful out-of-state abortion care “furthers a compelling interest and is narrowly tailored to that end.” Id. A regulation or enforcement is not narrowly tailored “[i]f a less restrictive alternative would serve the Government‘s purpose.” U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
The Attorney General cannot satisfy this heavy burden. He has presented no other reason to deny the plaintiffs’
First, these interests were considered legitimate enough to meet the lower rational-basis threshold in Dobbs, but they are not compelling interests that justify the suppression of speech and criminal prosecution in these circumstances. Because the Attorney General concedes that pregnant women themselves can leave Alabama for a legal abortion, the interests in “maternal health
and safety” and “the integrity of the medical profession” are not at odds with what the plaintiffs seek to do. To the contrary, these interests support allowing those who seek to obtain a legal abortion out of state to receive information and counseling from trusted medical providers about the safest, reliable places to
The Attorney General‘s argument in his reply and response briefs that he does not intend to prosecute the lawful provision of information and advocacy for elective abortions is a hollow assurance. “Mid-litigation assurances are all too easy to make and all too hard to enforce, which probably explains why the Supreme Court has refused to accept them.” W. Ala. Women‘s Ctr. v. Williamson, 900 F.3d 1310, 1328 (11th Cir. 2018), abrogated in part on other grounds by Dobbs, 597 U.S. 215. The Attorney General‘s response and reply briefs contend that providing information about medical care options, including abortion, and advocating for elective abortions are lawful in Alabama, but he also states that “[d]epending on whether a specific agreement is formed, making referrals to abortion providers, which will involve speech, could constitute a conspiracy to procure an elective abortion.” AG Resp. (Doc. 66) at 20 (internal citations omitted); see also AG Reply (Doc. 68) at 10. The plaintiffs are left with no idea what the Attorney General conceptualizes as a “specific agreement,” nor a subsequent overt act, required to trigger enforcement. This distinction is at least as vague and therefore as likely to inhibit speech as the statute at issue in Wollschlaeger. 848 F.3d 1293 (11th Cir. 2017).
In that case, the Eleventh Circuit found that a statute proscribing a medical professional from “unnecessarily harassing a patient about firearm ownership” was unconstitutional as a content-based restriction because of inadequate state interests and poor tailoring, and was also void for vagueness. Id. at 1303, 1307, 1319. While the Attorney General‘s threatened enforcement is based on an interpretation not grounded in the wording of a statute, this case presents a similar threat to physician speech. How is a provider to know when the line is crossed between acceptable individualized care that involves patient-specific advice and criminally-prosecutable speech based on the Attorney General‘s conception of Alabama conspiracy law? If a provider offers a patient information about legal out-of-state abortion providers and, unbeknownst to the provider, the patient travels there to obtain an abortion, can the Alabama provider be liable? Does it matter if the provider knows that the patient plans to heed the advice and travel out of state? As in Wollschlaeger, “wrong guesses will yield severe consequences.” Id. at 1319. There, healthcare providers risked civil penalties, including possible suspension or revocation of their medical licenses. Id. Here, a wrong guess could yield criminal prosecution and up to 99 years in prison. Even an unsubstantiated prosecution could devastate a medical provider‘s career and reputation. See Robinson Decl. (Doc. 60-3) ¶¶ 19-20, 23-24. The indefiniteness of the Attorney General‘s threatened enforcement “forces doctors to choose between adequately performing their professional obligation to counsel patients on health and safety on the one hand and the threat of serious [criminal] sanctions on
The Attorney General‘s attempts to clarify his threats result in the same effect: they still chill plaintiffs’ speech. The Supreme Court recognized that “[t]he vagueness of [content-based regulations of speech] ... raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871-72 (1997). Thus, the Attorney General‘s new assertions in his reply and response that “it is lawful in Alabama to share information about or advocate for abortions,” not only contradict his prior statements, but the vagueness about what he is threatening to enforce violates the plaintiffs’ First Amendment rights by chilling their speech.
Second, even if assuming for the sake of argument these are compelling interests, they are certainly not narrowly tailored. Threats of prosecution cannot serve a State‘s legitimate interest when the State does not have legitimate authority to punish lawful behavior conducted in other States. In other words, because the Attorney General‘s threatened enforcement is illegitimate/extraterritorial, no interest could justify it.25
Since the Attorney General‘s threatened enforcement cannot meet strict scrutiny, the court will enter summary judgment in favor of the plaintiffs for this freedom-of-speech claim.
2. Yellowhammer Fund‘s Expressive-Conduct and Freedom-of-Association Claims
a. Expressive Conduct
Yellowhammer Fund asserts that its provision of funds and logistical support to pregnant Alabamians for abortion is protected as expressive conduct. At oral argument, the Fund specifically homed in on two categories of conduct that it avers do not require speech and are protected expressive conduct: providing funds for a pregnant woman to obtain an abortion and transporting and accompanying pregnant people to their abortion appointments. The court will address each category in turn.
First Amendment protection “does not end at the spoken or written word;” rather it extends to expressive conduct as well. Texas v. Johnson, 491 U.S. 397, 404 (1989). In Spence v. Washington, 418 U.S. 405, 409 (1974) (per curiam), the Supreme Court set forth a two-part test to determine if conduct should receive First Amendment protection. The first question inquired whether the speaker “inten[ded] to convey a particularized message,” and the second question analyzed whether “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11. Spence also emphasized the importance of context. See id. at 409-410. A little over two decades later, the Court eliminated the requirement that an individual‘s message be “particularized.” See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995). In the Eleventh Circuit, instead of asking whether an act conveys a particularized message, courts “ask whether the reasonable person would interpret it as some sort of message.” Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (emphasis in original). “If ... the conduct in question is expressive, any law regulating that conduct is subject to the First Amendment.” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th Cir. 2021) (citing Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1240 (11th Cir. 2018) (”Food Not Bombs I“)). See also Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006) (”FAIR“) (explaining that conduct must be “inherently expressive” to warrant First Amendment protection).
Yellowhammer Fund contends that the act of providing funds for women to travel out-of-state to obtain a legal abortion is expressive conduct. The Attorney General disagrees; he believes the conduct does not convey its own message without speech. The critical question is “whether the reasonable person would interpret [Yellowhammer Fund‘s provision of abortion funds] as some sort of message.” Holloman, 370 F.3d at 1270.
To answer this question, “context matters.” Food Not Bombs I, 901 F.3d at 1237. “[T]he context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol.” Spence, 418 U.S. at 410 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)). Context can transform ordinary actions into expressive conduct. For example, “[c]ontext separates the physical activity of walking from the expressive conduct associated with a picket line or a parade.” Food Not Bombs I, 901 F.3d at 1241 (citing United States v. Grace, 461 U.S. 171, 176 (1983)).
The Attorney General supposes that only political donations constitute expressive conduct, but the Eleventh Circuit has recognized the communicative connotations of funding for other purposes, including social causes. See Coral Ridge, 6 F.4th at 1254. Funding particular causes is a sort of symbolism that constitutes “a primitive but effective way of communicating ideas.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943). Funding a certain cause, especially an issue of public concern in a public manner, communicates one‘s support for certain ideas. See Food Not Bombs I, 901 F.3d at 1242-43.
In Coral Ridge, the Eleventh Circuit recognized that Amazon engages in expressive conduct when it determines which charities to donate to and when it donates funds through its AmazonSmile program. Id. at 1254-56. At issue was whether Amazon could be required to donate funds to a religious organization it did not wish to promote on the theory that the AmazonSmile program was a public accommodation under Title II of the Civil Rights Act,
Notably, in Coral Ridge, the court relied heavily on Food Not Bombs I. In that case, the court found conduct was expressive by analyzing whether the conduct related to an issue of public concern, and whether the conduct was public and symbolic. Food Not Bombs I, 901 F.3d at 1242-43. And, applying these factors, the court went on to conclude that a non-profit‘s weekly outdoor
Yellowhammer Fund‘s abortion fund addresses an issue of public concern. When Yellowhammer Fund was founded in 2017, its purpose was to meet what it saw as a critical need in Alabama: the inaccessibility of reproductive options, including abortion, for many pregnant Alabamians. See Fountain Decl. (Doc. 61-1) ¶ 14.26 At its founding, the abortion fund was Yellowhammer Fund‘s sole program. See id. The abortion fund was the expression that gave life to Yellowhammer Fund‘s mission to “ensur[e] access to reproductive health care for all members of [its] community, regardless of race, income, location, age, gender, sexuality, disability, number of children, or status as a citizen.” Id. ¶ 6. The abortion fund was symbolic of Yellowhammer Fund‘s support of pregnant Alabamians “individual dignity and each person‘s innate ability to make the decisions that are best for themselves and their families.” Id. ¶ 11. The context of the abortion fund matters. In Alabama, where maternity care has lagged behind that in other States,27
Yellowhammer Fund was founded on, and remains committed to, the principle that reproductive healthcare should be accessible to all. Moreover, there is no dispute that reproductive healthcare remains an issue of public concern today, particularly in States such as Alabama that have banned abortion.
In addition to addressing an issue of public concern, Yellowhammer Fund made its provision of funds for abortion public. The Fund advertised its abortion fund through social media, on its website, by contacting healthcare providers, and through word of mouth. But for the Attorney General‘s threats of criminal prosecution, the Fund would have shared information about its abortion fund and names of out-of-state abortion providers on the bus tour it organized throughout Alabama in June and July 2023, where it advertised its
In fact, counsel for the Attorney General conceded that the Attorney General is interested in prosecuting Yellowhammer Fund because it is ‘publicly’ advertising that it funds abortions. When asked whether, under his interpretation of the law, a husband in Alabama who drove his wife to another State to get an abortion could be prosecuted under Alabama‘s criminal laws, counsel stated that the Attorney General was interested in prosecuting “organizations that are holding themselves out publicly as ... funding the abortions.” Oral Argument Tr. (Doc. ___) at __ (official transcript is unavailable). He then conceded that “that‘s the whole purpose of the organization [Yellowhammer Fund] ... not just to assist [clients] with traveling, but also to pay for the travel, pay for the abortion.” Id. at __. The Attorney General‘s admission that he is targeting Yellowhammer Fund instead of individuals because the Fund‘s message reaches a broader audience demonstrates that the Yellowhammer Fund‘s provision of funding for legal abortions is expressive conduct when taken in context.
Considering the surrounding circumstances, a reasonable person would interpret Yellowhammer Fund‘s provision of funds to women seeking a legal abortion outside of Alabama as conveying “some sort of message” about the mission and viewpoint it supports. Coral Ridge, 6 F.4th at 1254. Accordingly, the court finds that Yellowhammer Fund‘s act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject tо First Amendment protection.
In contrast with the Yellowhammer Fund‘s abortion-funding program, the record contains no evidence that the Fund has publicized its willingness to have its staff drive and accompany pregnant women to their medical appointments. It is unlikely that a reasonable observer witnessing a Fund employee driving a woman to an out-of-state abortion appointment would perceive a message that the Fund supports access to reproductive healthcare. Explanatory speech would be required to understand the Fund‘s message. The reasoning of Coral Ridge simply does not fit here. Therefore, on the factual record before the court, Yellowhammer Fund‘s physically transporting pregnant women out of state to abortion appointments does not constitute expressive conduct under the First Amendment.
The Attorney General asserts that, even if Yellowhammer Fund‘s funding is expressive, Alabama can constitutionally regulate the conduct because criminally prosecuting such conduct would further “‘substantial governmental interest[s]’ ... in protecting ‘the sanctity of unborn life and the rights of unborn children,’
Because Yellowhammer Fund‘s abortion-funding program is expressive conduct, the court‘s First Amendment analysis regarding the plaintiffs’ freedom of speech also applies to this conduct. Accordingly, the court finds that the Attorney General‘s threats violate Yellowhammer Fund‘s right to expressive conduct and cannot withstand strict scrutiny.
b. Freedom of Association
Yellowhammer Fund asserts that the Attorney General‘s threatened enforcement violates its right to
associate by “imped[ing] Plaintiff‘s ability to advance its goals in collaboration with others--including pregnant Alabamians, other abortion funds, and abortion advocacy groups.” Yellowhammer Fund‘s Mot. for Summ. J. (Doc. 61) at 56. For the same reasons that the court declined to address the Fund‘s right-to-travel claim, the court declines to address its freedom-of-association claim.
D. Due Process, Sovereignty, and Comity
Yellowhammer Fund next argues that the Attorney General‘s threatened prosecutions would violate the
IV. RELIEF
Here plaintiffs seek relief from the threat of criminal prosecution by Alabama. They seek a declaratory judgment that the Attorney General‘s use of the provisions of Alabama‘s criminal code to prosecute those who assist individuals seeking to leave Alabama to obtain abortion care in a State where abortion is legal would violate both the
The question whether this court may grant the plaintiffs’ request for declaratory relief against criminal prosecution is quickly resolved by reference to the Supreme Court‘s decision in Steffel v. Thompson, 415 U.S. 452 (1974). That case concerned a federal lawsuit challenging the threatened enforcement of a state criminal statute that had been initiated prior to the commencement of any state proceedings against the plaintiff. Observing that the principles of comity, equity, and federalism underlying Younger v. Harris, 401 U.S. 37 (1971), and its progeny had little force in such a context, and expressly reserving for another day the question of whether federal injunctive relief may be granted, the Court held that federal declaratory relief was available. Steffel, 415 U.S. at 460-475. To be eligible for declaratory relief, the Court held, a plaintiff must face a genuine threat of enforcement of the challenged state criminal statute. Id. at 475. Here, while no criminal or civil proceedings in state court have been initiated against the plaintiffs on the basis of the Attorney General‘s threats, the plaintiffs have established that they face a genuine threat of enforcement. The court, therefore, concludes that it may grant declaratory relief in view of Steffel.
Whether the court should also award injunctive relief presents a substantially less straightforward question. Because, as noted, Steffel left this question unanswered, its resolution requires an examination of subsequent Supreme Court decisions. The former Fifth Circuit Court of Appeals undertook just such an examination in Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978).28 Specifically, the court reviewed two post-Steffel decisions of the Supreme Court: Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), which addressed whether the issuance of a preliminary injunction is barred by the equitable
considerations underlying Younger, and Wooley v. Maynard, 430 U.S. 705 (1977), which addressed the same question regarding a permanent injunction. The former Fifth Circuit concluded on the basis of these decisions that Younger does not preclude the granting of federal injunctive relief provided the plaintiff can clear the following hurdles: (1) satisfaction of the requirements of federal jurisdiction; (2) demonstration of the existence of “exceptional circumstances“; and (3) demonstration that an injunction is necessary for the adequate protection of the plaintiff‘s constitutional rights. CITE? The Supreme Court in Wooley explained the need for these additional barriers as follows: “although [o]rdinarily ... the practical effect of injunctive and declaratory relief will be virtually identical, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary.” 430 U.S. at 711 (internal citations omitted).
It is apparent here that only the second and third showings described in Ealy remain at issue. While the intended meaning of “exceptional circumstances,” as employed in the second requirement, is far from crystal clear, it does appear to erect a rather high barrier to the issuance of federal injunctive relief. For instance, in Wooley, the Court found that three successive prosecutions of the plaintiff in five weeks, with the threat of repeated prosecutions in the future against both him and his wife, satisfied this requirement and justified federal injunctive relief. 430 U.S. at 712. The Court then intimated that a single threatened prosecution, absent earlier proceedings brought
Because there is no record of prosecutions brought against any of the plaintiffs based on the Attorney General‘s threats, and because there appears to be no need to question here the soundness of the Supreme Court‘s observation that, in the context of a challenge to criminal prosecution, “a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment,” this court concludes that the requisite “exceptional circumstances” are not present. Additionally, because the court now declares the Attorney General‘s threatened prosecution invalid, there is no apparent threat of future prosecution. The Attorney General represented in oral argument that he will not enforce Alabama criminal laws to prosecute assisting individuals procuring an abortion in another state where it is legal should this court hold such enforcement to be unconstitutional. Moreover, he affirmed his authority to supervise district attorneys so that they, too, comply with this court‘s judgment. The court will, therеfore, refrain from entering injunctive relief, and will enter only a declaratory judgment.29
V. CONCLUSION
The court has found that the Attorney General‘s threatened prosecutions violate the right to travel and the
engage in conduct that is lawful there but the Attorney General finds to be contrary to Alabama‘s values and laws. For example, the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama. See
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A judgment will be entered as follows: (1) Plaintiffs’ motions for summary judgment will be granted as to all the right-to-travel claims except as to the one brought by plaintiff Yellowhammer Fund on its own behalf. The motions will also be granted as to the freedom-of-speech claims and the expressive-conduct claim as to ‘funding.’ They will be denied as to the expressive-conduct claim as to ‘transportation.’ Plaintiffs’ motions for summary judgment will be denied as to the claims the court declined to resolve, and those claims will be dismissed without prejudice. And defendant‘s motion for summary judgment will be granted as to plaintiffs’ expressive-conduct claim as to ‘transportation’ and will be denied in all other respects. (2) The court will grant only a declaration that the Attorney General‘s threatened prosecutions are unlawful.
DONE, this the 31st day of March, 2025.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE