The Volokh Conspiracy
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Judge Says Alabama Can't Punish Helping People Go to Other States to Get Abortions
"[T]his 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."
From today's opinion by Judge Myron Thompson (M.D. Ala.) in Yellowhammer Fund v. Attorney General; he is denying the defendant's motion to dismiss, rather than issuing an injunction, but in the process he expresses definite views about the unconstitutionality of the Alabama AG's actions:
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.
In Dobbs v. Jackson Women's Health Org., the United States Supreme Court held that the U.S. Constitution no longer protects a right to abortion, allowing States to regulate and restrict abortions before viability. In Alabama, it is now a felony for anyone to perform or attempt to perform an abortion absent a medical emergency….
Although the plaintiffs may no longer legally coordinate abortions in Alabama, they wish to help the people they serve access abortions in States where such abortions are lawful. The plaintiffs have not done so because Alabama's Attorney General, defendant Steve Marshall, has threatened to prosecute anyone who helps arrange abortions in other States. The Attorney General has publicly declared that Alabama law prohibits anyone from assisting or otherwise facilitating an out-of-state act that, if performed in Alabama, would constitute a crime, including performing or attempting to perform abortions. The plaintiffs would all resume providing assistance to people seeking abortions if not for the Attorney General's threats….
The judge concluded that the threatened prosecutions would violate the right to travel:
[Plaintiffs' right to travel claim] will not be dismissed because (a) the right to travel includes the right both to move physically between States and to do what is lawful in those States, and (b) prosecuting those who facilitate lawful out-of-state abortions, as the Attorney General threatens to do, would violate that right….
And the judge also agreed with plaintiffs that "enforcing the Attorney General's reading of Alabama's criminal laws, including those punishing inchoate offenses and codifying accomplice liability, would violate the freedom of speech":
Relying on the First Amendment, the plaintiffs contend that the Attorney General cannot prosecute or threaten to prosecute those who help others obtain lawful out-of-state abortions for inchoate crimes, such as conspiracy and solicitation, as accomplices, or otherwise. They submit that Alabama's criminal laws cannot authorize the Attorney General to act on his threats without creating an unconstitutional content-based restriction on speech, at least as applied to the speech they and their staff wish to engage in: informing their clients about the laws of other States, offering counseling services about treatment options outside Alabama, and providing material support to clients seeking abortions in States where they are lawful.
"[A]s a general matter, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Content-based restrictions on speech are ordinarily subject to strict scrutiny. A law is content-based if it "applies to particular speech because of the topic discussed or the idea or message expressed."
There are a few "narrowly limited classes of speech" that the government may regulate without having to satisfy strict scrutiny. These categories include obscenity, defamation, fraud, incitement, and, most relevant here, speech integral to unlawful conduct. 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."
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 concedes that Alabama's criminal laws impose a content-based restriction on speech. "[T]he content of [the] speech," he explains, is what "causes a crime."
He does not dispute that providing abortion-related services would require the plaintiffs and their staff to engage in speech, either in the form of pure speech or expressive conduct, or that his threats have chilled that speech. Nonetheless, in his view, the Alabama statutes are exempt from strict scrutiny "because the First Amendment does not protect criminal activity."
The exception to strict scrutiny for speech integral to unlawful conduct comes from Giboney v. Empire Storage & Ice Co. (1949). There, the Supreme Court observed "that the constitutional freedom for speech … [does not] extend[] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." The Attorney General casts his motion to dismiss as a straightforward application of Giboney: Alabama law prohibits most abortions within its borders, and so any agreement, encouragement, or assistance to do what Alabama has outlawed is criminally actionable, even if the agreement, encouragement, or assistance occurs through speech.
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. 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."
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. 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]." 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.
For the Giboney exception to have tractable limits, the speech at issue must bear some relation to an independently unlawful course of conduct. Giboney "can't justify treating speech as 'integral to illegal conduct' simply because the speech is illegal under the law that is being challenged." In other words, the speech being proscribed must be "causally linked to a particular crime, a crime that does not itself consist of otherwise protected speech." Were the doctrine otherwise, any criminally prohibited speech would be integral to unlawful conduct, and any statute punishing that speech would be immune from strict scrutiny. Indeed, that is the very logic the Attorney General advances here. He contends that the Alabama statutes can withstand the plaintiffs' as-applied challenge because the speech they and their staff wish to engage in would be integral to unlawful conduct, but their speech would be integral to unlawful conduct only because the Alabama statutes, as interpreted by the Attorney General, make their speech unlawful. Such circular reasoning quickly spins out of control.
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 speech would further, the only 'conduct' that could be the basis of the Attorney General's threatened prosecutions would be speech that Alabama regards as politically unpopular and morally disfavored. The First Amendment does not tolerate that result, as the freedom of speech is meant to prevent the government from "suppress[ing] unpopular ideas or information." Giboney therefore cannot exempt the Attorney General's threatened enforcement of the Alabama statutes from strict scrutiny.
The Attorney General protests that at least two federal statutes punish conspiracies to commit acts that are not unlawful insofar as they are not separately codified as crimes, and courts have long assumed that both statutes fall within the Giboney exception to strict scrutiny. According to the Attorney General, if those statutes are constitutional, he can likewise prosecute speech integral to conduct that is not independently illegal. The first statute the Attorney General invokes is Section 1 of the Sherman Act, which bars any "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce." Under Section 1, acts undertaken by one market participant may be perfectly legal, but an agreement to perform the same acts by a conglomerate of market participants can be a punishable offense. Courts have not subjected this provision to strict scrutiny.
The second statute cited by the Attorney General is the federal conspiracy statute, which outlaws conspiracies to "defraud the United States." The constitutionality of the federal conspiracy statute has not been seriously questioned, even though no law separately makes defrauding the United States an unlawful object.
The Attorney General's reliance on the Sherman Act and the federal conspiracy statute misses a critical point: neither law contemplates agreements to perform acts that some States deem worthy of affirmative legal protections. Conspiring to restrain trade and conspiring to defraud the United States may not be explicitly prohibited in the U.S. Code, but the Attorney General would be hard-pressed to argue that either act involves 'lawful' conduct in any meaningful sense of the term. The lawfulness of abortion, on the other hand, varies by State and gestational age. Some States regard the freedom to terminate a pregnancy as so sacred that the liberty interest is protected in their constitutions. Defrauding the United States and restraining trade, which no State affirmatively permits, are fundamentally unlike abortions and the patchwork of legal protections nationwide surrounding them.
Another noteworthy distinction is that Congress has the constitutional authority to criminalize the acts of restraining trade and defrauding the United States. In fact, Section 2 of the Sherman Act punishes unilateral restraints on trade, making it a felony for anyone "to monopolize any part of the trade or commerce among the several States." Similarly, courts have interpreted the federal conspiracy statute to reach agreements to bribe government officials, steal money or property from the government, and make false statements to the government, all of which Congress can and has separately prohibited. By contrast, the Constitution forbids Alabama from prosecuting people for engaging in lawful out-of-state conduct. Neither the Sherman Act nor the federal conspiracy statute represents an attempt by Congress to accomplish indirectly what it cannot do through direct legislation, as the plaintiffs allege the Attorney General is attempting to do here.
The Attorney General also insists that Alabama has the authority to regulate professional speech under lesser constitutional scrutiny, including speech about medical practices such as abortions. But the Supreme Court "has not recognized 'professional speech' as a separate category of speech." Nat'l Inst. of Fam. & Life Advocs. v. Becerra (2018). Perhaps for this reason, the Attorney General abandons this argument in his reply brief.
Having established that the Attorney General's attempt to invoke Giboney is unavailing, the court turns to whether the plaintiffs have stated a viable First Amendment claim, taking the factual allegations in their complaints as true. The plaintiffs submit that the State plans to initiate a prosecution under Alabama's statutes punishing conspiracy, complicity, solicitation, and other crimes based on the content of the speech they and their staff wish to engage in about out-of-state abortions. "[C]ontent-based speech regulations face 'strict scrutiny,' the requirement that the government use the least restrictive means of advancing a compelling government interest."
The Attorney General does not argue that his threatened prosecutions can satisfy strict scrutiny. He has presented no other reason to dismiss the plaintiffs' First Amendment claim besides his attempt to invoke the Giboney exception, which, as stated, does not extend to speech in furtherance of lawful out-of-state conduct. His motion to dismiss the as-applied First Amendment challenge will therefore be denied….
I think the First Amendment analysis is generally correct as to the conclusion that "the Attorney General cannot constitutionally prosecute people for providing information [or] counseling" about how to obtain abortions in other states where they are lawful. I'm skeptical that the First Amendment (as opposed to the recipients' right to travel) protects providing "material support" in the form of, say, money to pay for a trip, but the court doesn't seem to discuss that question separately.
The judge also "reserve[d] judgment" on the question whether the "threatened prosecutions would amount to an extraterritorial application of Alabama's abortion restrictions in violation of the Due Process Clause and the constitutional principles of sovereignty and comity," and rejected the argument that the government's interpretation of Alabama law didn't "provide fair warning" of possible prosecution. And the judge concluded:
This case is simply about how a State may not 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. Alabama can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here. In this sense, the case is not an "especially difficult call." Dobbs v. Jackson Women's Health Org. (2022) (Kavanaugh, J., concurring)….
If you're interested in Giboney and the "speech integral to unlawful conduct" exception, I have a pretty detailed analysis of it here.
