State Attorney General Should Intervene In Legal Challenge | New Jersey Law Journal
Alabama law criminalizes abortion. Organizations and individuals within the state seek to facilitate women’s access to legal, out-of-state abortions. They have filed a lawsuit because they fear prosecution due to a threat by Steve Marshall, the state’s attorney general, to prosecute such acts as aiding and abetting an act which, if performed in Alabama, would be a crime. New Jersey is a jurisdiction where abortions may lawfully be procured, making travel or aiding travel to the state subject to criminal charges in Alabama.
In “An act concerning reproductive freedom” codified at N.J.S. 10:7-1 New Jersey's Legislature and Governor affirmed New Jersey law. It declares:
But by abandoning constitutional protection of such a personal right—one of the most profound—the United States Supreme Court has licensed the opposite view. Though we may be one nation under God, liberty does not mean the same thing for all.
Abortion is banned in Alabama, which has the third highest maternal mortality rate in the country. It is the sixth poorest state. Because Marshall has threatened to prosecute under Alabama criminal law 13A-3-77 anyone assisting an Alabama woman to obtain an out of state the abortion, the Yellowhammer Fund, which has provided such assistance to women to obtain abortion services out of state, ceased providing such help. They have joined others to challenge Alabama in federal court. The United States Department of Justice has intervened on behalf of the plaintiffs.
Alabama law provides that “[a] conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.” ALA Code § 13A-4-4; see also id. § 13A-2-23 (aiding and abetting statute). The aiding and abetting law places people in potential jeopardy because Ala. Code § 26-23H-4 provides a total ban on abortion regardless of fetal or maternal age, viability, or the circumstances leading to pregnancy. Thus neither incest nor rape is sufficient cause to terminate a pregnancy. Only to save the life of the mother may a pregnancy be terminated.
The Alabama attorney general now asserts, according to a statement of interest filed by the United States Department of Justice, that “individuals can be prosecuted if they form an agreement within Alabama to assist in obtaining an abortion in another state, regardless of whether the abortion is legal in that other state, if that abortion would be illegal if performed within Alabama.”
The United States filed the “Statement of Interest to prevent a breakdown in the federal system, preserve the Constitution’s original structure, and eliminate burdens on the efforts of individuals within Alabama seeking to travel to other states to engage in lawful conduct.”
The Dobbs majority did not address the 14th Amendment personhood argument pressed by Notre Dame natural law theorist John Finnis, the doctoral supervisor of Associate Justice Neil Gorsuch. But in Doe v. Bolton, 410 U.S. 179, 200 (1973) the Supreme Court held that the Privileges and Immunities Clause “protect[s] persons who enter Georgia seeking the medical services that are available there,” (including abortion). Similarly in Bigelow v. Virginia, 421 U.S. 809, 824 (1975) the court held that Virginia could not “prevent its residents from traveling to New York to obtain” abortion services legally available in that state, nor could Virginia “prosecute [its residents] for going there.”
As Justice Brett Kavanaugh explained in Dobbs, 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 United States observes further the “Supreme Court has also held that states may not prevent third parties from assisting others in exercising their right to travel.” The Department of Justice statement of interest concludes, correctly in our view, that, “[A]ny contrary approach—whereby individuals are theoretically free to travel on their own, but states are permitted to prohibit third-party assistance for that travel—would severely undercut the right to travel itself. Just as a state cannot prohibit travel to other states to engage in conduct that is lawful in those other states, the state likewise cannot prohibit third-party assistance for such travel.”
It is essential that the morally profound choice that a woman makes to carry to term or to terminate a pregnancy deserves our respectful distance. That the Department of Justice chose to enter the Yellowhammer Fund case is welcome. New Jersey has decided to affirm unambiguously our long-standing recognition of a right to terminate a pregnancy before viability. Given the potential stakes for our citizens, visitors, and health care providers, we urge our attorney general to similarly intervene in the Alabama case to ensure that the interests of the people and state of New Jersey are presented to the court.
By Law Journal Editorial Board | December 01, 2023 at 02:19 PM
In Dobbs v. Jackson Women’s Health the United States Supreme Court majority found the Constitution of the United States to be silent on the right of a woman to elect abortion of a not yet viable unborn child. They returned the question to each state, leaving a host of untested choices to their political processes.
Alabama law criminalizes abortion. Organizations and individuals within the state seek to facilitate women’s access to legal, out-of-state abortions. They have filed a lawsuit because they fear prosecution due to a threat by Steve Marshall, the state’s attorney general, to prosecute such acts as aiding and abetting an act which, if performed in Alabama, would be a crime. New Jersey is a jurisdiction where abortions may lawfully be procured, making travel or aiding travel to the state subject to criminal charges in Alabama.
In “An act concerning reproductive freedom” codified at N.J.S. 10:7-1 New Jersey's Legislature and Governor affirmed New Jersey law. It declares:
“It is both reasonable and necessary for the State to enable, facilitate, support, and safeguard the provision of high-quality, comprehensive reproductive and sexual health care…in consultation with health care professionals of their choosing, without fear of prosecution, discrimination, or unnecessary barriers to care. To achieve those ends, it shall be the policy of this State to: (1) explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to terminate a pregnancy, and the right to carry a pregnancy to term[.]”
But by abandoning constitutional protection of such a personal right—one of the most profound—the United States Supreme Court has licensed the opposite view. Though we may be one nation under God, liberty does not mean the same thing for all.
Abortion is banned in Alabama, which has the third highest maternal mortality rate in the country. It is the sixth poorest state. Because Marshall has threatened to prosecute under Alabama criminal law 13A-3-77 anyone assisting an Alabama woman to obtain an out of state the abortion, the Yellowhammer Fund, which has provided such assistance to women to obtain abortion services out of state, ceased providing such help. They have joined others to challenge Alabama in federal court. The United States Department of Justice has intervened on behalf of the plaintiffs.
Alabama law provides that “[a] conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense, is indictable and punishable in this state in all respects as if such conspiracy had been to do such act in this state.” ALA Code § 13A-4-4; see also id. § 13A-2-23 (aiding and abetting statute). The aiding and abetting law places people in potential jeopardy because Ala. Code § 26-23H-4 provides a total ban on abortion regardless of fetal or maternal age, viability, or the circumstances leading to pregnancy. Thus neither incest nor rape is sufficient cause to terminate a pregnancy. Only to save the life of the mother may a pregnancy be terminated.
The Alabama attorney general now asserts, according to a statement of interest filed by the United States Department of Justice, that “individuals can be prosecuted if they form an agreement within Alabama to assist in obtaining an abortion in another state, regardless of whether the abortion is legal in that other state, if that abortion would be illegal if performed within Alabama.”
The United States filed the “Statement of Interest to prevent a breakdown in the federal system, preserve the Constitution’s original structure, and eliminate burdens on the efforts of individuals within Alabama seeking to travel to other states to engage in lawful conduct.”
The Dobbs majority did not address the 14th Amendment personhood argument pressed by Notre Dame natural law theorist John Finnis, the doctoral supervisor of Associate Justice Neil Gorsuch. But in Doe v. Bolton, 410 U.S. 179, 200 (1973) the Supreme Court held that the Privileges and Immunities Clause “protect[s] persons who enter Georgia seeking the medical services that are available there,” (including abortion). Similarly in Bigelow v. Virginia, 421 U.S. 809, 824 (1975) the court held that Virginia could not “prevent its residents from traveling to New York to obtain” abortion services legally available in that state, nor could Virginia “prosecute [its residents] for going there.”
As Justice Brett Kavanaugh explained in Dobbs, 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 United States observes further the “Supreme Court has also held that states may not prevent third parties from assisting others in exercising their right to travel.” The Department of Justice statement of interest concludes, correctly in our view, that, “[A]ny contrary approach—whereby individuals are theoretically free to travel on their own, but states are permitted to prohibit third-party assistance for that travel—would severely undercut the right to travel itself. Just as a state cannot prohibit travel to other states to engage in conduct that is lawful in those other states, the state likewise cannot prohibit third-party assistance for such travel.”
It is essential that the morally profound choice that a woman makes to carry to term or to terminate a pregnancy deserves our respectful distance. That the Department of Justice chose to enter the Yellowhammer Fund case is welcome. New Jersey has decided to affirm unambiguously our long-standing recognition of a right to terminate a pregnancy before viability. Given the potential stakes for our citizens, visitors, and health care providers, we urge our attorney general to similarly intervene in the Alabama case to ensure that the interests of the people and state of New Jersey are presented to the court.
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