The Justice Department filed a statement of interest today in two consolidated lawsuits seeking to protect the right to interstate travel, including the right to travel to another state to obtain an abortion that is legal in the destination state. The statement of interest explains that the Constitution protects the right to travel across state lines and engage in conduct that is lawful where it is performed and that states cannot prevent third parties from assisting others in exercising that right. The statement argues that the Alabama Attorney General’s threatened prosecutions of individuals for providing assistance to people seeking lawful out-of-state abortions are therefore unconstitutional. The cases are Yellowhammer Fund v. Marshall and West Alabama Women’s Center, et al., v. Marshall.
“As I said the day Dobbs was decided, bedrock constitutional principles dictate that women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal,” said Attorney General Merrick B. Garland. “This filing demonstrates the Justice Department’s commitment to defending the constitutional right to travel and to protecting reproductive freedom under federal law.”
“The Reproductive Rights Task Force has been scrutinizing state laws and enforcement actions that threaten to infringe on federal protections of reproductive rights, including illegal attempts to prevent interstate travel,” said Associate Attorney General Vanita Gupta. “Today’s filing is just one part of the Justice Department’s ongoing work to use all available tools to safeguard reproductive freedoms protected by the Constitution and federal law.”
“Alabama may not infringe the constitutional right to travel in order to meet its policy goals,” said Principal Deputy Assistant Attorney General Brian Boynton, head of the Justice Department’s Civil Division. “The Civil Division will continue to assert the interests of the United States.”
The Department’s statement of interest explains that the right to travel from one state to another is firmly embedded in the Supreme Court’s jurisprudence and the Constitution. It notes that Justice Kavanaugh — one of the five justices who formed the majority in Dobbs v. Jackson Women’s Health Organization — has explained that 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 Department’s filing also explains that the Supreme Court has held that states may not prevent third parties from assisting others in exercising their right to travel. Further, the statement of interest explains that because of these precedents, the Alabama Attorney General may not criminalize third-party assistance for interstate travel, particularly where the sole purpose of those prosecutions is to impede individuals’ exercise of their constitutional rights.
The plaintiffs in these cases are organizations and individuals within Alabama seeking to facilitate individuals’ access to legal, out-of-state abortions. They brought suit in response to the Alabama Attorney General’s argument that he may criminally prosecute individuals within Alabama who assist others in obtaining legal, out-of-state abortions. Specifically, the Alabama Attorney General contends that providing assistance within Alabama to someone seeking an out-of-state abortion constitutes a criminal conspiracy, regardless of whether the abortion is legal in the state where it is performed, as long as the abortion would be illegal if performed within Alabama. Plaintiffs have challenged the Alabama Attorney General’s threatened conspiracy prosecutions on a variety of grounds, including as being inconsistent with the Constitution’s right to travel.
Following the Supreme Court’s decision in Dobbs overturning Roe v. Wade, the Justice Department has worked with commitment and urgency to defend the reproductive freedoms that are protected by federal law. The Reproductive Rights Task Force, led by Associate Attorney General Gupta, consists of senior officials and dedicated staff from across a dozen Department components who are working daily to address complex and widespread threats to reproductive health in the wake of Dobbs. Since the Task Force was formed, one of its core responsibilities has been to assess state and local legislation and enforcement actions that threaten to impair women’s right to seek reproductive care in states where it is legal and to coordinate appropriate federal government responses to those actions, including proactive and defensive legal action where appropriate. Additional information on the work of the Task Force can be found at www.justice.gov/reproductive-rights.