Federal judge sets deadline for briefs in Alabama abortion lawsuit

A federal judge Tuesday set a Sept. 28 deadline for healthcare providers to respond toAlabama Attorney General Steve Marshall’s motion to dismiss their lawsuit seeking to stop Marshall from prosecuting those who help people obtain out-of-state abortion care.

The lawsuit, filed on July 31 by former abortion providers in the state, cited comments made by Marshall in an August 2022 radio interview, where he suggested Alabamians helping people obtain legal abortion care in other states could face felony prosecutions. The lawsuit alleges Marshall’s comments and the threat of prosecution forced health care providers to cease providing critical information, counseling and practical support to Alabamians exercising their constitutional right to access medical care across state lines.

“No Alabama law authorizes such prosecutions. Nor could it,” the lawsuit stated. “That would be a blatant extraterritorial overreach of state power that not only contravenes the Due Process Clause, the First Amendment, and the fundamental constitutional right to travel, but also the most foundational principles of comity upon which our federalist system rests.”

The Alabama Attorney General Office last week asked the court to dismiss the lawsuit and doubled down on Marshall’s statements.

Alabama Attorney General doubles down on threats to prosecute out-of-state abortion care

“An elective abortion performed in Alabama would be a criminal offense; thus, a conspiracy formed in the State to have that same act performed outside the State is illegal,” the motion to dismiss stated.  “Plaintiffs identify no constitutional provision that would bar the State from enforcing that law.”

The discussion at a Tuesday hearing before U.S. District Judge Myron Thompson focused on whether to consider the motion to dismiss simultaneously with a motion from plaintiffs for summary judgment, meaning the judge can grant an order because the facts can be decided without trial.

Thompson said Tuesday that dealing with the motion to dismiss might narrow, or “potentially, at least, clarify” the issues in the summary of judgment.

Plaintiffs leaned toward taking up both at the same time. 

“While very often a motion to dismiss comes first, so many of these issues are so intertwined – that considering it at the same time seems most efficient for everyone involved,” said Jamila Johnson, attorney for the Yellowhammer Fund.

ACLU attorney Meagan Burrows said that after seeing the AG’s office motion to dismiss, they intend to file a brief that both opposes the motion to dismiss and sets their arguments in favor of summary judgment. She said that filing two briefs would be duplicative. While they have no position on whether the defendant files one or two briefs in opposition, they plan on submitting the separate briefs as they will make different arguments and “are representing differently situated plaintiffs.”

Ben Seiss, an attorney with the Alabama attorney general’s office, said that he doesn’t see how considering the three motions – two motions for summary judgment from plaintiffs and one motion to dismiss from the defendant – would save the court time. He said the court should take the motion to dismiss first, before hearing the motions for summary judgment from the plaintiffs.

“At a minimum, it’s the same amount of time just in a more condensed period,” Seiss said. “And then at the maximum there’s probably more inefficiency and having to sift through potentially inconsistent briefing from one motion to another.”

Seiss said the plaintiffs’ strategy was to get “relief quicker at the expense of prejudice to my client and not being able to seek discovery to contest evidence that is being submitted.”

The ACLU filed the lawsuit on behalf of West Alabama Women’s Center in Tuscaloosa; Dr. Yashica Robinson, based in Huntsville, and Alabama Women’s Center in Huntsville, in the U.S. District Court for the Middle District of Alabama in Montgomery.

The judge last month consolidated the ACLU’s lawsuit with a one from the Lawyering Project, a legal organization aimed at increasing access to abortion. The organization filed a similar case on behalf of the Yellowhammer Fund, an organization that supports pregnant Alabamians seeking out-of-state abortion care.

Attorneys for the state also allege that for plaintiffs to have standing to sue on behalf of staff and clients, they must have “sufficiently close relationships,” to the staff and client. The motion to dismiss alleged the plaintiffs’ relationship with the third-party does not satisfy a close relationship.

Thompson did not set a hearing on the motion on Tuesday.