Federal judge suggests accelerated deadlines in Alabama abortion prosecution lawsuit

Alabama Attorney General Steve Marshall delivers his inaugural speech during inauguration ceremonies at the Alabama State Capitol on Monday, Jan. 16, 2023 in Montgomery, Alabama. (Stew Milne for Alabama Reflector)

A federal judge Wednesday suggested earlier deadlines to submit briefs for a lawsuit aimed at stopping Alabama Attorney General Steve Marshall from prosecuting those who help Alabamians seek out-of-state abortion care.

U.S. District Judge Myron H. Thompson’s suggestion came as both plaintiffs and the attorney general’s office agreed that a period of discovery is not needed. 

There “are very few factual issues at play,” said Jamila Johnson, counsel for plaintiff Yellowhammer Fund, which is represented by The Lawyering Project.

Meagan Burrows, senior staff attorney with the ACLU Reproductive Freedom Project representing WAWC Healthcare, formerly known as West Alabama Women’s Center, said that “given that the state has not indicated any intention” to dispute the facts, they will decide whether to submit additional affidavits after the defendant submits their briefs.

Ben Seiss, counsel for the Attorney General’s office, also agreed that no discovery will be needed.

A group of reproductive and civil rights groups sued Marshall last year, citing statements he made in an August 2022 radio interview in which Marshall said that health care providers could face felony charges for assisting Alabamians in traveling to other states to obtain legal abortion care.

The ACLU filed the lawsuit on behalf of WAWC Healthcare in Tuscaloosa; Dr. Yashica Robinson and Alabama Women’s Center, both in Huntsville, in the U.S. District Court for the Middle District of Alabama in Montgomery. The Lawyering Project, a legal organization aimed at improving abortion access, sued on behalf of Yellowhammer Fund, an Alabama reproductive rights organization.

The plaintiffs alleged that without court intervention, pregnant individuals could face delays in accessing necessary care, and that some may be coerced to carry unwanted pregnancies to term.

Thompson last week denied Marshall’s motion to dismiss the lawsuit. Marshall argued that state statute allows law enforcement to charge people with committing a crime outside the state if it were illegal to do so in Alabama.

Marshall’s office wrote that “a crime receives no constitutional protection,” but Thompson upheld the plaintiffs’ claims of right to travel and limits on the extraterritorial application of state law. 

“Right to travel as merely a right to move physically between the states contravenes history, precedent, and common sense,” Thompson wrote, and that “such a constrained conception of the right to travel would erode the privileges of national citizenship and is inconsistent with the Constitution.”

Thompson wrote in his order that Justice Brent Kavanaugh, in his Dobbs concurrence, recognized that the threats Marshall made could be unconstitutional, stating that the right to interstate travel would prohibit a state from barring its residents from traveling to another state for abortion services, emphasizing that it’s “not especially difficult as a constitutional matter.”

Thompson asked Wednesday why it is necessary to proceed with a summary judgment –  a final decision by a judge designed to resolve a lawsuit before trial – instead of moving forward with a standard case. Plaintiffs were open to proceeding with a standard case, but the defendant said they would not be comfortable until briefs are submitted.

“We haven’t seen what plaintiffs are going to submit with their motions … so we would not agree with that approach,” Seiss said.

Thompson moved the filing deadlines about a month before what parties proposed.

Marshall has until May 20 to answer plaintiffs’ complaints. Both parties have until June 17 to file opposition to those motions; July 15 to file opposition to those motions, and July 22 to file responses in support of them.

Alabama passed an effective abortion ban in 2019 which became law in 2022 after the U.S. Supreme Court struck down federal abortion rights protections in Dobbs v. Jackson Women’s Health Organization. The law effectively banned nearly all abortion, except when the life of the mother is in danger.

To date, there has been zero recorded abortions in the state, including to save the life of a mother. In cases that have presented a danger to the life of a mother, doctors have hesitated providing abortion care. Alabama averaged 635 abortions monthly in April and May 2022, before Dobbs came down.

This story was updated at 6:14 p.m. with the case briefing schedule.

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