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Alabama passed new laws recently, making abortion a very limited option. In that context is it legal for a US national who lives in Alabama to

  • have an abortion in another state where it is legal in the circumstances she in in?
  • have an abortion abroad, in circumstances which are illegal in the US?

Does the "US national" above matter?

In other words: is the specific act of abortion illegal on itself in Alabama (or another state if it matters), just because of the geographic constraints - or is it related to the fact that someone lives in Alabama or, more broadly, is a US citizen (second bullet of my question)?

Or, yet phaserly differently: can someone who lives in Alabama just travel to another state and get an abortion, then come back safely (= Alabama law enforcement does not care) or is it still a felony to have an abortion outside of Alabama?

Note: Alabama is taken as an example following the recent law changes and their wide broadcasting in France. Any other state with a similar law will do.

phoog
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WoJ
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4 Answers4

51

Does the "US national" above matter?

The nationality of the person is not relevant. Like most criminal statutes, the law applies to acts within the jurisdiction of Alabama, which basically means within the state's territory. The only foreign people who would be immune from that jurisdiction would be diplomats and the like, but such people would not be licensed to practice medicine in Alabama. This brings us to the point in the next paragraph.

is it still a felony to have an abortion outside of Alabama?

No. It is not even a felony to have an abortion inside Alabama. The law does not criminalize having abortions. It criminalizes performing abortions. See section 5 of the law:

Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions.

To extend your question, let us consider a doctor who is licensed to practice medicine both in Alabama and in some other jurisdiction where abortion is legal. Such a doctor could not be convicted under Alabama law for performing abortions in the other jurisdiction.

phoog
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First of all, this entire discussion assumes that Alabama's law will be upheld, and Roe will be overturned. Roe is still good law, and under it the Alabama law is pretty clearly invalid. However it is possible that the US Supreme Court will overrule itself and Roe will no longer apply. The Court has overruled itself in the past, perhaps most rapidly and thoroughly in West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943), (the second flag salute case) which overturned Minersville School District v. Gobitis (1940). Gobitis involved a very similar law and almost exactly similar facts, and there had been only one change in the membership of the Court. Moreover the West Virginia law included extensive quotes from Gobitis and was clearly intended to follow that decision closely. But the Court changed its ruling totally in only 3 years (from 8-1 to 6-3 the other way).

As discussed at length in this Wikipedia article Freedom of Movement is a right protected under the US constitution. It has been recognized as such at least since Paul v. Virginia, 75 U.S. 168 (1869), and is traced to a right guaranteed under Article Four to the Articles of Confederation prior to the current US Federal Constitution. Travel between states is now protected by the Privileges and Immunities Clause. See Saenz v. Roe, 526 U.S. 489 (1999). See also This article on "The Right to Travel" from the Legal Information Institute.

Therefore, a state law attempting to prohibit a person from traveling out of state (or out of the US) to obtain an abortion would be unconstitutional. To the best of my knowledge, neither the Alabama law nor any other recently passed or seriously proposed law purports to impose such a prohibition.

A federal law to this end would surely be contested, and might well be held unconstitutional, but there is no case in direct point that I know of. The federal Mann act did once prohibit interstate "transport of females" for "immoral purposes" (generally sex) and now criminalizes interstate travel for purposes of illegal prostitution. A similar law to prevent travel to obtain an abortion might be upheld, no one can be sure until one is passed and challenged.

If a person traveled outside a state, such as Alabama, that prohibited abortion, to one that permitted it, and had an abortion there, and then returned to the original state, an attempt to prosecute such a person would be highly likely to fail. First of all, the current Alabama law does not purport to prohibit out-of-state abortions. Secondly, such a prosecution would probably be held to be a burden on the right to travel. There is also the history of people traveling to other states to obtain divorces not lawful in their own states. Attempts to hold such divorces invalid did not succeed. The hypothetical case seems similar.

David Siegel
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Note: Alabama is taken as an example following the recent law changes and their wide broadcasting in France. Any other state with a similar law will do.

https://slate.com/news-and-politics/2019/05/hb-481-georgia-law-criminalizes-abortion-subjects-women-to-life-in-prison.html

But the bill does far more than that. In one sweeping provision, it declares that “unborn children are a class of living, distinct person” that deserves “full legal recognition.” Thus, Georgia law must “recognize unborn children as natural persons”—not just for the purposes of abortion, but as a legal rule.

So this does not merely create a law specifically against abortion. It classifies fetuses as "human beings", making all the laws regarding murder apply to abortion. If a woman merely gets an abortion in another state, it would be difficult for Georgia to establish jurisdiction. But if she performed acts in furtherance of the abortion while in Georgia, such as making arrangements with an abortion provider, then she could be charged with a crime. It also means that anyone in Georgia who helps her, such as by giving her a ride, raising money, or even just referring her to the provider, could face charges. It also raises the question of whether a provider who makes arrangements with a woman while the woman is in Georgia would be under the jurisdiction of Georgia.

Politifact says that this is "murky", saying that the law neither specifically says that it applies to the woman nor says that it doesn't, but that's ridiculous. If a law says that X is illegal, and doesn't specifically state that exception Y applies, then exception Y does not apply. That's how laws work. You can't get out of a traffic ticket by saying "Well, the law doesn't specifically say that it applies on the second Tuesday of a month".

Acccumulation
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But going to another state is not part of an exception rule. The law that Georgia or any other state has passed only has jurisdiction in that state. that is another way that laws work. In regards to getting assistance, that can be hard to prove. You could really go to town on the assistance thing: why stop at giving the person a ride. Maybe her employer who paid her the money to afford the travel, the mailman who mailed her letters to clinics, her dog.

James Wes
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