The moment that a newly hard-hard-right Supreme Court struck down Roe v. Wade, the decision that guaranteed a constitutional right to abortion, we were destined for an America in which states administer pregnancy tests at airports and state lines, an America where both women who seek abortions and anyone who helps them all end up in prison.
On Monday, Alabama state Attorney General Steve Marshall filed a motion in federal court, asserting that his state has the power to prosecute those who assist Alabama residents in traveling out of state to receive abortion care. This motion came in response to a lawsuit filed by the ACLU and the Yellowhammer Fund, an organization that advocates for abortion rights.. The motion repeats a point Marshall made on talk radio last year, when he insisted his office would investigate conspiracy or accessory charges for those who help facilitate abortion-related travel.
On its face, that could make it illegal for even medical care providers to advise miscarrying or endangered patients on what to do. Of course, Marshall does not give a shit about this, because if he did, we wouldn't be here to begin with. The question, then, is whether Alabama can prosecute a "conspiracy" to do in another state something that's illegal in Alabama. Marshall says yes, but that reasoning quickly runs afoul of the constitutional right to travel.
As an example, imagine a group of friends living in a state in which slot-machine gambling is illegal. They decide to visit Las Vegas, where such gambling is very much legal. Does their home state get to imprison the group for "conspiring" to break their anti-slot laws? What if one friend pays for another friend's trip, thus "facilitating" the trip by making the flight free? And what if the friends use a travel agent for trip? Does the agent get prosecuted for abetting the crime of flying to Vegas for purposes of gambling? And what if the travel agent has a poster in their window specifically advertising Las Vegas gambling trips? Does that change things?
Marshall's argument is that "the conspiracy is what is being punished," and that the "conspiracy" is the act of talking about traveling to another state to commit an act that's legal in that other state—even if the abortion never occurs. By the same argument, a no-slots state could start throwing residents in prison for even talking about playing the Vegas slots, even if the gambling itself never happens.
Now, at this point, every anti-abortion god-botherer in America would surely insist that abortion and slot machines are nothing alike, because slot machines aren't "murder," and that none of the usual laws and rights apply when you're claiming something to be "murder." And that, too, is the point: We're told that anti-abortion advocates have special rights to deprive other citizens of their own. We're told that plainly unconstitutional acts like criminalizing interstate travel—or criminalizing assisting in or advocating for interstate travel—is just fine if one side says God told them to do it, and if God told other people something else, then well, maybe those other people should shut up and stop "conspiring."
If places like Alabama criminalize crossing state lines to receive abortion care, we’re entering Handmaid's Tale territory very, very quickly. And Republicans know that. They know it's untenable and unenforceable without instituting police-state powers, which is why immediately after the let-the-states-decide argument led to the fall of Roe, many of the same Republicans began declaring that states should not be allowed to decide after all and a nationwide abortion ban is now needed.
Without a national ban, states like Alabama will have to institute draconian and brazenly unconstitutional (for now) travel restrictions on any state resident they believe might harbor a fetus. It's going to be horrific, and they won’t stop until nobody has any more rights than Alabama conservatives are willing to stomach.
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The far-right justices on Wisconsin's Supreme Court just can't handle the fact that liberals now have the majority for the first time in 15 years, so they're in the throes of an ongoing meltdown—and their tears are delicious. On this week's episode of "The Downballot," co-hosts David Nir and David Beard drink up all the schadenfreude they can handle as they puncture conservative claims that their progressive colleagues are "partisan hacks" (try looking in the mirror) or are breaking the law (try reading the state constitution). Elections do indeed have consequences!