The Alabama Attorney General Has Teed Up Another Constitutional Crisis

Conservatives were never going to stop with abortion. Alabama is proof.

Illustration of a postcard reading
Alabama Attorney General Steve Marshall is fully thumbing his nose at the constitutional right to travel. Shutterstock/Austen Risolvato/Rewire News Group

This piece first appeared in our weekly newsletter, The Fallout. Please consider donating today to help us tell the story of reproductive freedom into 2024. We need you now!

Almost as soon as the ink was dry on the decision to overturn Roe v. Wade last year, conservative attorneys general were cooking up ways to try and further restrict the rights of people seeking an abortion in their state.

One of their first targets? Trying to block pregnant folks’ ability to leave a state for abortion care. To Alabama Attorney General Steve Marshall, it meant thumbing his nose at the constitutional right to travel and threatening to criminally prosecute anyone who helped Alabamians get care in another state.

Not only is this a brazen abuse of the criminal process, but it has also teed up another constitutional crisis following the Dobbs v. Jackson Women’s Health Organization decision that’s big enough to get the Biden administration’s attention.

A week ago, the Department of Justice took an important step and filed a statement of interest in a set of lawsuits filed by abortion care advocates in Alabama trying to prevent Marshall’s threatened criminal prosecutions. The filing raises the stakes in litigation that was already taking shape as some of the most important tests since the Dobbs decision.

The filing is also an aggressive defense of what’s left of the constitutional rights of pregnant people after the Supreme Court tossed them aside in 2022 because a majority of the justices on the Court could. And it’s a welcome bit of offense from an administration that has too often taken a path of minimal interference in the post-Dobbs fallout.

It’s also just straight-up good advocacy from the DOJ, including knowing when and how to quote the Dobbs decision in its favor here.

“As Justice Kavanaugh has explained, the question of whether a State may ‘bar a resident of that State from traveling to another State to obtain an abortion’ is ‘not especially difficult’—‘the answer is no based on the constitutional right to interstate travel,’” the brief states.

Justice Brett Kavanaugh, you might remember, was part of the conservative majority that voted to overturn Roe in the Dobbs decision and who pinky swore that doing so wouldn’t touch any other fundamental rights—like the right to travel. It’s fantastic to see the Department of Justice call conservatives’ bluff here.