Case 2:23-cv-00450-MHT-KFP Document 28 Filed 08/28/23 Page 1 of 40

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

YELLOWHAMMER FUND, et al., )

)
Plaintiffs, )
)
v. )
) No. 2:23-cv-00450-MHT-KFP
STEVE MARSHALL, in his official )
capacity as Attorney General of the )
State of Alabama, )
)
Defendant. )

WEST ALABAMA WOMEN’S )

CENTER, et al., )
)
Plaintiffs, )
)
v. ) No. 2:23-cv-00450-MHT-KFP
)
STEVE MARSHALL, in his official )
capacity as Attorney General of the )
State of Alabama, )
)
Defendant. )

MOTION TO DISMISS

The State of Alabama prohibits most abortions. Unless an exception related

to the health of the mother or child applies, it is a crime to perform an abortion in

Alabama. Plaintiffs do not challenge the constitutionality of that prohibition.

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Instead, they argue that because some other States allow such abortions,

Plaintiffs have a right to conspire with others in Alabama to try to have abortions

performed out of state. Plaintiffs are mistaken.

Alabama law clearly 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-4-4.1 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. Plaintiffs identify no

constitutional provision that would bar the State from enforcing that law.

Plaintiffs first argue, under the Due Process Clause, that § 13A-4-4 does not

mean what it says and that the provision applies only if the conspiracy formed in

Alabama is to commit an act outside Alabama that is also illegal where the act would

occur. But nothing in the statute supports that interpretation, and, in any event,

federal courts lack authority to order a State official to comply with a federal court’s

reading of State law.

1
Ala. Code § 13A-4-4 is the focus of this Motion because that statute expressly applies to actions
taken in Alabama to advance conduct outside the State. The legal issues presented by this case—
except where explicitly noted otherwise, see infra Part III—do not change based on the particular
State statute at issue.

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Plaintiffs next argue that their First Amendment rights to speech, expression,

and association are violated because they cannot conspire to procure out-of-state

abortions. But it is well settled that speech used to conduct a crime receives no

constitutional protection; the same is true for the right to associate, otherwise all

criminal conspiracies would be constitutionally protected criminal “associations.”

Likewise, the right to travel, to the extent that it is even implicated, does not

grant Plaintiffs the right to carry out a criminal conspiracy simply because they

propose to do so by purchasing bus passes or driving cars.

Plaintiffs finally argue that they have a so-called

right to be free from extraterritorial application of State law, but the prohibited

conduct in which they wish to engage would occur right here in Alabama. In the

words of the Alabama conspiracy statute, Plaintiffs wish, while in this State, to

“agree[] with one or more persons to engage in or cause the performance of the

conduct” constituting an offense, followed by “one or more of the persons do[ing]

an overt act to effect an objective of the agreement.” ALA. CODE § 13A-4-3(a).

Prosecuting someone for forming a conspiracy in Alabama is not an extraterritorial

application of Alabama law simply because the planned conduct is to occur beyond

State lines. Plaintiffs assert that there is some difference because the object of their

conspiracy is legal where it might occur. But they don’t explain why that makes any

constitutional difference, and it doesn’t. The conspiracy is what is being punished,

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even if the final conduct never occurs. That conduct is Alabama-based and is within

Alabama’s power to prohibit.

For these reasons, Defendant Steve Marshall, sued in his official capacity as

Attorney General of the State of Alabama, moves under rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure to dismiss Plaintiffs’ complaints (docs. 1,

23).

BACKGROUND

A. The Alabama Human Life Protection Act

In 2019, Alabama passed The Alabama Human Life Protection Act,

advancing “the public policy of the state to recognize and support the sanctity of

unborn life and the rights of unborn children.” ALA. CODE § 26-23H-2(b). The law

makes it “unlawful for any person to intentionally perform or attempt to perform an

abortion except” to address certain health risks to the mother or unborn child. ALA.

CODE § 26-23H-4; see also id. § 26-23H-3(1). The statute exempts from liability

women on whom abortions are performed. Id. § 26-23H-5. “An abortion performed

in violation of this chapter is a Class A felony,” and “[a]n attempted abortion

performed in violation of this chapter is a Class C felony.” Id. § 26-23H-6.

The Court preliminarily enjoined enforcement of the Act on October 29, 2019,

as likely violating substantive due process, Robinson v. Marshall, 415 F. Supp. 3d

1053, 1057 (M.D. Ala. 2019), but the Court later dissolved the preliminary

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injunction after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228 (2022), Robinson v. Marshall, No. 2:19-cv-365-

MHT, 2022 WL 2314402 (M.D. Ala. June 24, 2022).

B. Alabama’s Interest in Prohibiting and Regulating Abortions

By prohibiting and regulating abortions, the Alabama Legislature advances a

number of important governmental interests. In Alabama, “[t]he dignity and value

of life, especially the lives of children, born or unborn, has been and continues to be

a public policy and often sacred concern of the highest order for the people of this

state.” ALA. CODE § 26-23F-2(a)(4). Alabama understands that “medical science has

increasingly recognized the humanity of the unborn child[,]” at all stages of

development. Id. § 26-23H-2(e).

While protecting fetal life is a foremost concern in Alabama, the State also

prioritizes protecting maternal health and safety. “The medical, emotional, and

psychological consequences of an abortion are serious and can be lasting or life

threatening.” Id. § 26-23A-2(a)(3). Alabama recognizes that “abortion or

reproductive health centers have often failed to meet acceptable standards of medical

care[,]” id. § 26-23E-2(8), and often treat patients “in a manner inconsistent with a

traditional physician/patient relationship[,]” id. (2). Indeed, “Abortion is . . . most

often engaged in by stand-alone clinics without many of the safeguards found in a

traditional physician/patient relationship or other medical care setting.” Id. (6).

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“Most women do not return to the [abortion] facility for post-surgical care.” Id.

§ 26-23A-2(a)(2).

C. Alabama Conspiracy Law

Under Alabama law:

(a) A person is guilty of criminal conspiracy if, with the intent

that conduct constituting an offense be performed, he or she agrees with
one or more persons to engage in or cause the performance of the
conduct, and any one or more of the persons does an overt act to effect
an objective of the agreement.
(b) If a person knows or should know that one with whom he or
she agrees has in turn agreed or will agree with another to effect the
same criminal objective, he or she shall be deemed to have agreed with
the other person, whether or not he or she knows the other’s identity.

ALA. CODE § 13A-4-3. “A conspirator is not liable under this section if, had the

criminal conduct contemplated by the conspiracy actually been performed, he or she

would be immune from liability under the law defining the offense.” Id.

§ 13A-4-3(e). But it is no “defense to a prosecution for criminal conspiracy” that

“[t]he person, or persons, with whom defendant is alleged to have conspired has

been acquitted, has not been prosecuted or convicted . . . or is immune from

prosecution.” Id. § 13A-4-3(d).

Furthermore, “[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.”

Id. § 13A-4-4. This statute is consistent with Alabama’s longstanding common-law

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rule that “[t]he place at which it is intended to commit the felony is not material. It

is the law of the place where the conspiracy is formed which is broken.” Thompson

v. State, 17 So. 512, 516 (Ala. 1895).

D. Proceedings.

On July 31, 2023, West Alabama Women’s Center, Yashica Robinson, and

Alabama Women’s Center (“West Alabama Plaintiffs”) and Yellowhammer Fund

filed lawsuits in the Middle District of Alabama alleging that their constitutional

rights to free speech, expression, association, travel, due process, and to be free from

extraterritorial application of State law would be violated by the application of

general Alabama criminal laws (namely Ala. Code §§ 13A-2-23, 13A-4-1, 13A-4-3,

and 13A-4-4) to punish Plaintiffs for helping others obtain out-of-state abortions.

See doc. 1, doc. 23.

LEGAL STANDARD

“Without jurisdiction the court cannot proceed at all in any cause.” Ex parte

McCardle, 74 U.S. 506, 514 (1868). A plaintiff seeking to invoke a federal court’s

jurisdiction must establish Article III standing. See Wooden v. Bd. of Regents of

Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir. 2001). “It is the responsibility of

the complainant clearly to allege facts demonstrating that he is a proper party to

invoke judicial resolution of the dispute and the exercise of the court's remedial

powers.” Warth v. Seldin, 422 U.S. 490, 518 (1975).

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“When evaluating a motion to dismiss under Rule 12(b)(6), the question is

whether the complaint ‘contain[s] sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.’” Worthy v. City of Phenix City, 930

F.3d 1206, 1217 (11th Cir. 2019) (alteration in original) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). “Facial challenges to the legal sufficiency of a claim or

defense, such as a motion to dismiss based on failure to state a claim for relief, should

. . . be resolved before discovery begins.” Chudasama v. Mazda Motor Corp., 123

F.3d 1353, 1367 (11th Cir. 1997) (footnote omitted). Such a dispute “always presents

a purely legal question; there are not issues of fact because the allegations contained

in the pleading are presumed to be true.” Id. (citing Mitchell v. Duval Cnty. Sch. Bd.,

107 F.3d 837, 838 n.1 (11th Cir. 1997) (per curiam)).

ARGUMENT

I. This Court lacks subject-matter jurisdiction to consider some of

Plaintiffs’ claims.

First, this Court lacks jurisdiction over Plaintiffs’ claims on behalf of their

staff and clients because Plaintiffs cannot satisfy the third-party standing

requirements. Second, the Eleventh Amendment bars Plaintiffs’ claims that depend

on Defendant Marshall complying with their interpretation of State law. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

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A. Plaintiffs Lack Third-Party Standing.

Both sets of Plaintiffs bring claims on behalf of their clients for violation of

their clients’ right to travel. See doc. 23 ¶¶ 13, 131 (“Dr. Robinson sues on her behalf

and on behalf of her patients and staff.”); doc. 1 ¶¶ 67, 91 (“Plaintiff further has

standing to sue on its clients’ behalf[.]”). Further, Plaintiffs seek to sue on behalf of

their staff.2 See generally doc. 23; doc. 1. But none of the Plaintiffs have third-party

standing to bring such claims.

As an initial matter, third-party standing rules do not relax in abortion-related

cases. In Dobbs, the Supreme Court explained that its previous abortion cases “led

to the distortion of many important but unrelated legal doctrines.” 142 S. Ct. at 2275.

That distortion included “ignore[ing] the Court’s third-party standing doctrine” in

June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020). Dobbs, 142 S. Ct. at

2275. Indeed, the Dobbs Court specifically named June Medical as a case that

misapplied third-party standing doctrine, pointing instead to the dissents in June

Medical as the proper application. Id. at 2275 n.61. Those majority opinions are thus

no longer good law; instead, the prior caselaw governs, and the opinions and dissents

identified in Dobbs contour third-party standing in the context of abortion-related

2
To the extent Plaintiffs intended to bring additional claims on behalf of their clients or their staff,
Defendant Marshall’s argument that Plaintiffs lack third-party standing applies with equal force.

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cases.3 Whatever the Supreme Court’s third-party standing jurisprudence might have

been in pre-Dobbs abortion-related cases, the normal articulation and application of

third-party standing principles now controls. See SisterSong Women of Color

Reprod. Just. Collective v. Governor of Ga., 40 F.4th 1320, 1328 (11th Cir. 2022)

(declining to treat abortion differently in the void-for-vagueness context because

there is no longer a constitutional right to abortion).

Generally, “a litigant may only assert his own constitutional rights or

immunities.” United States v. Raines, 362 U.S. 17, 22 (1960). That’s because “[t]he

Art. III judicial power exists only to redress or otherwise to protect against injury to

the complaining party, even though the court’s judgment may benefit others

collaterally.” Warth, 422 U.S. at 499. However, the Court has crafted a narrow

exception to the rule against third-party standing where (1) the litigant has “suffered

an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the

3
See Dobbs, 142 S. Ct. at 2275 n.61 (citing Warth, 422 U.S. at 499; Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 15, 17–18, (2004), abrogated on others grounds by Lexmark Inter., Inc.
v. Static Control Components, Inc., 572 U.S. 118 (2014); June Med., 140 S. Ct., at 2167–68 (Alito,
J., dissenting); June Med., 140 S. Ct., at 2173–74 (Gorsuch, J., dissenting) (collecting cases);
Whole Woman's Health v. Hellerstedt, 579 U.S. 582, 632 n.1 (2016) (Thomas, J., dissenting)); see
also All. for Hippocratic Med. v. FDA, No. 23-10362, 2023 WL 2913725, at *4 (5th Cir. Apr. 12,
2023) (per curiam) (“We are cognizant of the fact that the Supreme Court has disavowed the
theories of third-party standing that previously allowed doctors to raise patients’ claims in abortion
cases.”); Cameron v. EMW Women’s Surgical Ctr., P.S.C., 664 S.W.3d 633, 652 (Ky. 2023)
(determining that Dobbs’s “denouncement of permitting abortion providers third-party standing in
[abortion-related] cases” was “proper” and examining the dissents in June Medical and Whole
Women’s Health to hold that abortion providers did not have standing to sue on behalf of their
patients).

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outcome of the issue in dispute”4; (2) the litigant has a “close relation to the third

party”; and (3) there is “some hindrance to the third party’s ability to protect his or

her interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991). “[T]hird-party standing is

not appropriate where there is a potential conflict of interest between the plaintiff

and third party.” June Med., 140 S. Ct. at 2167 (Alito, J., dissenting) (citing Elk

Grove, 542 U.S. 1). And it is the burden of the “party who seeks the exercise of

jurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party

to invoke judicial resolution of the dispute.” FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 231 (1990) (cleaned up).

1. Plaintiffs Lack Third-Party Standing to Sue on Behalf of Their

Clients.

First, Plaintiffs cannot satisfy third-party standing because they have a

potential conflict of interest with the women whose interests they claim to represent.

See June Medical, 140 S. Ct. at 2153 (Alito, J., dissenting) (rejecting “the idea that

a regulated party can invoke the right of a third party for the purpose of attacking

legislation enacted to protect the third party”). Dobbs makes clear that a State may

regulate abortion due to its interest in the “protection of maternal health and safety.”

142 S. Ct. at 2284. Alabama law vindicates this interest by prohibiting or otherwise

4
The organizational Plaintiffs cannot claim injury based on the notion that they are “subject to
enforcement of the threatened laws[.]” doc. 1 ¶ 69. Alabama law does not provide for corporate
criminal liability unless the Legislature “has specifically provided for corporate liability.” State v.
St. Paul Fire & Marine Ins. Co., 835 So. 2d 230, 233 (Ala. Crim. App. 2000). None of the relevant
statutes here provide for corporate liability.

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regulating in-state abortion providers, see infra at 5–6, but because the State cannot

police the safety of out-of-state abortions, its conspiracy statute serves as a backstop

to protect maternal health and safety. By promoting out-of-state abortions, in-state

abortion providers necessarily advance their own financial and reputational interests

irrespective of any costs (or even benefits) it may have on the women consulting

them. Thus, Plaintiffs and pregnant women have a potential conflict of interest,

barring third-party standing.

Second, Plaintiffs do not have sufficiently close relationships with “pregnant

Alabamians seeking to travel out of state” for abortions. See doc. 1 ¶¶ 67–68. A close

relationship for third-party standing purposes is one in which “the relationship

between the litigant and the third party may be such that the former is fully, or very

nearly, as effective a proponent of the right as the latter.” Harris v. Evans, 20 F.3d

1118, 1123 (11th Cir. 1994) (quoting Singleton v. Wulff, 428 U.S. 106, 115 (1976)

(plurality opinion)). An “existing” relationship is more likely to be a “close

relationship,” distinct from “hypothetical” relationships between third parties and

litigants. Kowalski v. Tesmer, 543 U.S. 125, 131 (2004).

Plaintiffs’ allegations do not establish this requisite close relationship.

Yellowhammer alleges that its “crucial role in enabling its client to travel” suffices

to show a close relationship. Doc. 1 ¶ 68. According to Yellowhammer, “[t]here are

people presently in need” of its services, and it “regularly receives requests” from

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pregnant women who would financially struggle to travel out of state to procure an

abortion. Id. WAWC and Dr. Robinson previously performed abortions and

provided clients with “information, counseling, and support[.]” Doc. 23 ¶ 65.5 Close

relationships for third-party standing purposes exist between, for example, “parents

and children, guardians and wards.” June Medical, 140 S. Ct. at 2174 (Gorsuch, J.,

dissenting). In other words, there must be a continuous and standing relationship

between the plaintiffs and third parties—not a one-off “incidental congruity of

interest.” Warth, 422 U.S. at 510 (1975). This continuity is not present between

Plaintiffs and their clients.

Third, Plaintiffs’ clients are not hindered in asserting their rights. In

considering whether a third-party is hindered from bringing its own case, courts

inquire into the “likelihood and ability of the third parties . . . to assert their own

rights.” Powers, 499 U.S. at 414. Courts may analyze whether similar third parties

have advanced claims in the past. See Kowalski, 543 U.S. at 132.

Plaintiffs’ clients are not hindered from bringing a right to travel claim in

court. Yellowhammer alleges that women seeking out-of-state abortions are “likely

to face hostility from the community” if they bring right to travel claims themselves.

5
As to WAWC, the relationship between an abortion provider and a woman who obtains an
abortion is “generally brief and very limited” and does not require any meaningful follow-up with
the abortion provider or an abortion clinic. June Medical, 140 S. Ct. at 2168 (Alito, J., dissenting);
see also ALA. CODE § 26-23E-2(8) (explaining that abortion providers often treat patients “in a
manner inconsistent with a traditional physician/patient relationship”).

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Doc. 1 ¶ 69. But those women can sue under a pseudonym. See, e.g., Singleton, 428

U.S. at 117 (Powell, J., concurring in part and dissenting in part) (“Our docket

regularly contains cases in which women, using pseudonyms, challenge statutes that

allegedly infringe their right to exercise the abortion decision.”). Plaintiffs have not

alleged that any client or potential client has been denied a request to litigate under

a pseudonym, and these women face no threat of criminal prosecution in Alabama

for having out-of-state abortions.

Neither is mootness an issue. Yellowhammer also alleges that a woman

“seeking to travel [to obtain an abortion] also faces the imminent mootness of their

claim.” Doc. 1 ¶ 69. But “if a woman seeking an abortion brings suit, her claim will

survive the end of her pregnancy under the capable-of-repetition-yet-evading-review

exception to mootness.” June Med., 140 S. Ct. at 2169 (Alito, J. dissenting); see also

Roe v. Wade, 410 U.S. 113, 125 (1973) (“Pregnancy provides a classic justification

for a conclusion of nonmootness.”). And, of course, a woman seeking an abortion

could pursue temporary or preliminary relief or bring a class action, which (once a

class is certified) prevents mootness even where the named plaintiff’s individual

claims become moot, see Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74–75

(2013). Neither of Plaintiffs’ explanations for why their clients are unable to

vindicate their own rights hold up under scrutiny. Because Plaintiffs have a potential

conflict of interest with pregnant women and they cannot satisfy the relationship and

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hindrance elements, they lack third-party standing to assert right to travel (or any

other) claims.

2. Plaintiffs Lack Third-Party Standing to Sue on Behalf of Their Staff.

Plaintiffs also bring claims on behalf of their staff, but they have not even

alleged either a close relationship for purposes of third-party standing with their staff

or that their staff is hindered from bringing suits. As a matter of law, “the relationship

between the party asserting the right and the third party has been characterized by a

strong identity of interests which is absent in an employer/employee relationship.”

Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 810 (11th

Cir. 1993) (collecting cases). And nothing hinders Plaintiffs’ staff from bringing

their own suit or joining this one. Dr. Robinson’s participation as a Plaintiff in this

case proves the point. By providing (and wanting to provide in the future) assistance

and information to potential clients seeking abortions, she is similarly situated to

Plaintiffs’ other staff, and Dr. Robinson was able to bring suit. See doc. 23 at 6. Thus,

Plaintiffs all fail to meet their burden in alleging third-party standing of the rest of

their staff.

B. The Eleventh Amendment bars Plaintiffs’ claims that depend on

Defendant Marshall’s complying with their interpretation of State
law.

Throughout Plaintiffs’ complaints runs the implicit (and occasionally explicit)

notion that prosecuting them would run afoul of State law. To the extent Plaintiffs

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are claiming that this Court should command State officials to follow State law, such

an order would violate the long-established rule that “the Eleventh Amendment

prohibit[s] the District Court from ordering state officials to conform their conduct

to state law.” Pennhurst, 465 U.S. at 97. “[I]t is difficult to think of a greater intrusion

on state sovereignty than when a federal court instructs state officials on how to

conform their conduct to state law.” Id. at 106. Regardless of how Plaintiffs style

their claims, courts must look to the “gravamen” of a plaintiff’s claims to determine

whether they truly seek adjudication of state or federal issues. DeKalb Cnty. Sch.

Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir. 1997); see also, e.g., Waldman v.

Conway, 871 F.3d 1283, 1290 (11th Cir. 2017) (holding that a purported federal

challenge based on state prison officials’ failure to follow their classification manual

“is not a procedural due process challenge—it is a claim that state officials violated

state law in carrying out their official responsibilities[,]” which Pennhurst bars).

Thus, Plaintiffs cannot ask this Court to declare or require that Defendant Marshall,

or any other State official, adopt their preferred interpretation of State law.

Pennhurst, 465 U.S. at 97, 106.

II. Abortion’s legality in other States is immaterial.

Plaintiffs exhaustively emphasize that abortion, though generally illegal in

Alabama, is legal in other states. See, e.g., doc. 1 ¶ 4; doc. 23 ¶ 23. As an initial

matter, Plaintiffs don’t appreciate that though abortion may be legal elsewhere, it is

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plainly illegal pursuant to Ala. Code § 13A-4-4 for Plaintiffs to conspire with others

to procure abortions that would be illegal in Alabama. The criminal conduct is the

agreement (the conspiracy) itself, which is conduct that occurs in Alabama that

Alabama has every right to prosecute. Thus, the legality of abortion in other States

is irrelevant to whether Alabama can prosecute a conspiracy formed in Alabama.

Plaintiffs do not contest that Alabama, for example, can criminalize

conspiracy to sell heroin in Georgia. Nor, under their theory, would it appear to make

a difference if Georgia penalized that conduct less harshly than Alabama does, for

example, by treating the Alabama felony as a Georgia misdemeanor (or maybe even

a civil fine). But in Plaintiffs’ view, Alabama would lose its authority to punish this

Alabama-based conduct if Georgia repealed its law or if the Alabama-based

conspirators simply set their sights on another jurisdiction with lax laws.

Plaintiffs’ theory ignores basic tenets of conspiracy liability. When a State

punishes conspiracy, “[i]t is the law of the place where the conspiracy is formed

which is broken.” Thompson, 17 So. at 516. Moreover, “even if the objects are not

themselves criminal, the conspiracy is punishable where the objectives present

prejudice to the general welfare.” United States v. Elliott, 266 F. Supp. 318, 324

(S.D.N.Y. 1967) (cleaned up). For example, federal courts at all levels have

“allow[ed] punishment under 18 U.S.C. § 371 for conspiracy to defraud the United

States despite the[re] being no criminal liability attached to the objective of the

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conspiracy.” Id. at 324 n.3; see, e.g., Dennis v. United States, 384 U.S. 855, 866–67

(1966) (when a defendant “conspir[es] . . . to circumvent the law[,]” “the claimed

invalidity of [that law] would be no defense to the crime of conspiracy”).6

So too here. Alabama law recognizes abortions as illegal without regard to

place or jurisdiction. ALA. CODE § 26-23H-1, et seq. The Legislature has categorized

abortion as malum in se, comparing it to murder, see ALA. CODE § 26-23H-2 (citing

“the sanctity of unborn life”). And it is up to Alabama “to determine what are within

and what without the” category of malum in se crimes. Ex parte Rapier, 143 U.S.

110, 134 (1892). Alabama can criminalize Alabama-based conspiracies to commit

abortions elsewhere, even if the State lacked jurisdiction to prosecute out-of-state

crimes. See Thompson, 17 So. at 516 (“The place at which it is intended to commit

the felony is not material.”).

III. Alabama Law Does Not Violate the Due Process Clause.

Plaintiffs’ due process claims rest upon the novel idea that Alabama law

means something other than what its plain language says. In Count III of their

complaint, the West Alabama Plaintiffs assert that “no Alabama statute or case law

6
See also United States v. Vazquez, 319 F.2d 381, 384 (3d Cir. 1963) (“The . . . conspiracy is itself
the substantive offense, and a count of an indictment drawn under it need refer to no other statute
than [the conspiracy statute].”); United States v. Terranova, 7 F. Supp. 989, 990 (N.D. Cal. 1934)
(“To constitute an offense by conspiracy to defraud the United States under section 37 of the
Criminal Code, it is not necessary that the conspiracy should have been to commit an act in
violation of a criminal statute.” (citing Falter v. United States, 23 F.2d 420 (2d Cir. 1928); United
States v. Stone, 135 F. 392 (D.N.J. 1905)).

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provides any notice, foreseeability, or fair warning” that “speech or conduct”

facilitating procurement of an abortion in another state is unlawful. Doc. 23 ¶ 122.7

This argument ignores the clear contours of Alabama law and fails to appreciate the

high bar required to state such a due process claim: that the interpretation of the

statute at issue is “unexpected and indefensible,” see, e.g., Bouie v. City of Columbia,

378 U.S. 347, 354 (1964). Moreover, its inherent focus on State officials’

compliance with State law runs afoul of basic federalism principles including

sovereign immunity pursuant to Pennhurst and the nature of § 1983.

As an initial matter, Plaintiffs’ argument fails because it relies on a clear

misinterpretation of Alabama law. Alabama law criminalizes any “conspiracy

formed in this state to do an act beyond the state, which, if done in this state, would

be a criminal offense.” ALA. CODE 13A-4-4 (emphasis added). Plaintiffs make no

serious effort to dispute that the statute’s plain language encompasses the situation

complained of here, nor could they. Instead, Plaintiffs contend that an 1895 Alabama

Supreme Court decision recognizing then-operative common-law conspiracy rules

7
Yellowhammer’s complaint does not include a count asserting a similar due process claim. Even
to the extent that its passing reference (within its count asserting a “right to be free from
extraterritorial application of state law”) that “to punish a person because he has done what the
law plainly allows him to do is a due process violation of the most basic sort” could be construed
as a separate claim, doc. 1 at 34–35, ¶ 101, it fails as a matter of law and should be dismissed for
the same reasons discussed in this section as to the West Alabama Plaintiffs’ expressly asserted
claim.

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somehow prevents this later-enacted statute’s plain language from being given

effect. See doc. 23 ¶¶ 36–55 (citing Thompson, 17 So. at 516).

Thompson does not undermine, much less override, § 13A-4-4’s plain

language. To begin, the case was decided when Alabama was “without a statute

declaring a conspiracy formed in this state to commit a felony or a misdemeanor in

a sister state an indictable offense.” Thompson, 17 So. at 515. Alabama now has such

a statute, which contains no carve out for conduct that is illegal in Alabama but

permitted elsewhere. Thus, even if conspiracy rules at common law would have left

Plaintiffs free to conspire in Alabama, those rules no longer govern. See Thompson,

17 So. at 516 (recognizing legislative preservation of common law “except in so far

as it is superseded by express or repugnant legislation”); ALA. CODE § 1-3-1

(adopting common law “so far as it is not inconsistent with the Constitution, laws

and institutions of this state” and “except as from time to time it may be altered or

repealed by the Legislature” (emphasis added)); id. § 13A-1-6 (“All provisions of

[the Criminal Code] shall be construed according to the fair import of their

terms[.]”). The plain language of Alabama’s statutes controls today and provides

more-than-fair notice that Plaintiffs’ proposed conduct is criminal.8

8
Of course, Plaintiffs would fare little better under the common law. “[A]n unbroken tradition of
prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common
law until 1973.” Dobbs, 142 S. Ct. at 2253–54.

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Next, Thompson recognizes that at common law the place at which the

substantive crime is to be committed “is not material”; rather, “[i]t is the law of the

place where the conspiracy is formed which is broken.” 17 So. at 516. These

principles accord with the text and structure of Ala. Code § 13A-4-4. Thompson thus

confirms that a violation of Alabama’s inchoate criminal prohibitions accrues

without reference to whether Plaintiffs ultimate object would be legal elsewhere.

At any rate, this Court need not decide what may be the best or even currently

operative reading to dismiss Plaintiffs’ due process claim. The Supreme Court has

“long recognized that ‘a mere error of state law is not a denial of due process.’”

Swarthout v. Cooke, 562 U.S. 216, 222 (2011). Rather, Plaintiffs’ “fair notice” due

process claim—premised on the notion that applying § 13A-4-4’s plain language

would somehow work a retroactive change—requires showing that the challenged

reading is “unexpected and indefensible.” Bouie, 378 U.S. at 354. As relevant here,

a claim of this kind occurs only “from an unforeseeable and retroactive judicial

expansion of statutory language that appears narrow and precise on its face.” Rogers,

532 U.S. 451, 457 (2001).9 Plaintiffs cannot meet this demanding standard.

9
While this principle bears some resemblance to the Ex Post Facto Clause’s limitations on
legislative action, it has been “long settled . . . that the Ex Post Facto Clause does not apply to
judicial decisionmaking.” Rogers, 532 U.S. at 462. Nor does ex post facto case law have any
bearing on a “fair notice” claim. To the contrary, injecting ex post facto case law “into due process
limitations on judicial decisionmaking would place an unworkable and unacceptable restraint on
normal judicial processes and would be incompatible with the resolution of uncertainty that marks
any evolving legal system.” Rogers, 532 U.S. at 461.

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For example, in Rogers, the Supreme Court found that a Tennessee decision

abolishing the common law “year-and-a-day rule”10 and retroactively applying it to

a criminal defendant was not “an exercise of the sort of unfair and arbitrary judicial

action against which the Due Process Clause aims to protect.” 532 U.S. at 467.

Rather, “the court’s decision was a routine exercise of common law decisionmaking

in which the court brought the law into conformity with reason and common sense.”

Id. And in Metrish v. Lancaster, the Supreme Court recognized that it had “never

found a due process violation in circumstances remotely resembling [that] case—

i.e., where a state supreme court, squarely addressing a particular issue for the first

time, rejected a consistent line of lower decisions based on the supreme court’s

reasonable interpretation of the language of a controlling statute.” 569 U.S. 351,

367–68 (2013). Thus, albeit on habeas review, Metrish rejected a criminal

defendant’s argument that the due process clause prohibited retroactive curtailment

of his diminished-capacity defense. Id.

Plaintiffs’ allegations fail to clear this high bar. Regardless of whether their

roundabout reading of Ala. Code § 13A-4-4 is the most correct, giving force to a

statute’s plain language can never be “unexpected and indefensible.” Indeed, there

is no “unforeseeable and retroactive judicial expansion of statutory language.”

10
“At common law, the year and a day rule provided that no defendant could be convicted of
murder unless his victim had died by the defendant’s act within a year and a day of the act.” Rogers,
532 U.S. at 453.

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Rogers, 532 U.S. at 457. Plaintiffs’ allegations are a far cry from those in cases like

Bouie where “[p]etitioners did not violate the statute as it was written[,]” 378 U.S.

347, 350–55 (1964); here, Plaintiffs undeniably would violate the statute as written.

Moreover, applying the other inchoate criminal statutes that Plaintiffs challenge

would not be “unexpected and indefensible.” Although these statutes do not specify

where the ultimate conduct constituting a crime must either occur or by reference to

which jurisdiction’s laws, Thompson (on which Plaintiffs heavily rely) makes clear

that, for inchoate crimes, the place at which the ultimate crime is intended to be

committed “is not material” because it is the “law of the place where the” inchoate

crime takes shape “which is broken.” 17 So. at 516. Plaintiffs cannot lack fair notice

of century-old legal principles.

Unable to clear Bouie’s high bar, Plaintiffs’ due process claim asks no less of

this Court than to federalize Alabama’s interpretation of its own laws.11 But “[t]here

is no federal right not to be arrested in violation of state law.” Knight v. Jacobson,

300 F.3d 1272, 1276 (11th Cir. 2002); see also Swarthout, 562 U.S. at 222 (“[A]

mere error of state law is not a denial of due process.”). An order requiring

11
Even to the extent that resolving Plaintiffs’ claims required definitive interpretation of any of
the statutes at issue (or any other issue of Alabama law), such questions should be certified to the
Supreme Court of Alabama. See WM Mobile Bay Env’t Ctr. v. City of Mobile Solid Waste Auth.,
972 F.3d 1240, 1251 & n.3 (11th Cir. 2020) (“[A]s a matter of federalism and comity, dispositive
issues of Alabama law should be first presented to the Alabama Supreme Court to decide.”); see
also LaFrere v. Quezada, 582 F.3d 1260, 1262 (11th Cir. 2009) (“[W]hen [federal courts] write to
a state law issue, [they] write in faint and disappearing ink.”).

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implementation of Plaintiffs’ preferred readings of Alabama law would not vindicate

federal notions of fair notice; it would instead mandate State officials to follow

Plaintiffs’ preferred reading of State law in spite of the Eleventh Amendment’s

jurisdictional bar. See supra Part I.B.; Pennhurst, 465 U.S. at 97, 106. Separately,

on the merits, “[w]hile the violation of state law may (or may not) give rise to a state

tort claim, it is not enough by itself to support a claim under section 1983.” Knight,

300 F.3d at 1276. Whether for lack of jurisdiction or for failure to state a claim,

Plaintiffs’ due process claim is due to be dismissed.

IV. The First Amendment Does Not Protect Criminal Conduct.

Plaintiffs’ First Amendment claims fail because the First Amendment does

not protect criminal activity. Nonetheless, the West Alabama Plaintiffs complain that

Alabama law prohibits “Plaintiffs’ speech about abortion care that is legal and

available in other states, including, but not limited to, their provision of counseling

about out-of-state options and information about and recommendations for specific,

trusted out-of-state abortion providers and financial and practical support resources

for assistance with inter-state travel.” Doc. 23 ¶ 125. And the Yellowhammer

Plaintiffs complain about restrictions on their speech and expression as abortion

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funders,12 doc. 1 ¶ 75, and their right to associate with their clients, staff, and other

abortion groups, id. ¶ 85.

But the only criminalized activity is that which conspires to commit a crime.

Such activity has no First Amendment protection. “Many long established criminal

proscriptions—such as laws against conspiracy, incitement, and solicitation—

criminalize speech (commercial or not) that is intended to induce or commence

illegal activities.” United States v. Williams, 553 U.S. 285, 298 (2008). “[S]peech

integral to criminal conduct” is one of the “long recognized,” “well-defined and

narrowly limited classes of speech, the prevention and punishment of which have

never been thought to raise any Constitutional problem.” United States v. Fleury, 20

F.4th 1353, 1365 (11th Cir. 2021). “[I]t has never been deemed an abridgement of

freedom of speech or press to make a course of conduct illegal merely because the

conduct was in part initiated, evidenced, or carried out by means of language, either

12
To the extent Plaintiffs argue that the restriction Alabama law imposes on “financial . . . support
resources for assistance with inter-state travel” violates their free speech right, such a theory
misunderstands the First Amendment. See doc. 23 at 31. The First Amendment protects speech
and funding for speech, not funding for conduct. Speakers “use money amassed from the economic
marketplace to fund their speech. The First Amendment protects the resulting speech, even if it
was enabled by economic transactions with persons or entities who disagree with the speaker’s
ideas.” Citizens United v. FEC, 558 U.S. 310, 351 (2010) (emphasis added). Only where Alabama
“singles out money used to fund speech as its legislative object, [is it] acting against speech as
such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver
it to the bookstore.” McConnell v. FEC, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part and
dissenting in part), overruled by Citizens United, 558 U.S. 310. But Alabama law only regulates
the use of money as it is spent on conduct, i.e., paying for a client’s travel to obtain an out-of-state
abortion just like it regulates paying someone to travel to obtain out-of-state illegal drugs, see ALA.
CODE §§ 13A-12-201, et seq.

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spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502 (1949) (citations omitted).

Here, the only speech incidentally criminalized is speech that conspires—as

defined by Alabama law—to perform an illegal act. To say this law “discriminate[s]

on the basis of content and viewpoint[,]” doc. 23 ¶ 127, underscores the point: “It is

precisely because” “the content of [the] speech” causes a crime that the speech is

unprotected. Fleury, 20 F.4th at 1364. “Content-based restrictions are permitted

when they are confined to [this] categor[y] of speech.” Id. at 1365; see Virginia v.

Black, 538 U.S. 343, 361–62 (2003) (“When the basis for the content discrimination

consists entirely of the very reason the entire class of speech at issue is proscribable,

no significant danger of idea or viewpoint discrimination exists.” (cleaned up)).

Holding otherwise would be “an expansive interpretation of the constitutional

guaranties of speech . . . [, which] would make it practically impossible ever to

enforce laws against agreements . . . and conspiracies deemed injurious to society.”

Giboney, 336 U.S. at 691. One cannot seriously doubt that the State can prevent a

mobster from asking a hitman to kill a rival because the agreement occurred through

spoken word. So too here for conspiracies to obtain an elective abortion.

Finally, State authority to regulate professional speech—even speech that is

not criminal conduct—is well established. “The First Amendment does not prevent

restrictions directed at commerce or conduct from imposing incidental burdens on

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speech, and professionals are no exception to this rule.” Nat’l Inst. of Fam. & Life

Advocs. v. Becerra, 138 S. Ct. 2361, 2373 (2018) (cleaned up). Here, Plaintiffs are

engaged in professional speech, referring to “patients” and “clients” in the captions

of their cases. Thus, even if their speech were legal, the State would still have the

authority to regulate professional speech between staff and clients. Ala. Code

§ 13A-4-4 is a “law[] directed at conduct sweeping up incidental speech[,]” Otto v.

City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020), which poses no First

Amendment issue.13

V. Alabama Law Does Not Violate The Right to Travel.

Plaintiffs claim that Alabama law would violate their, their staff’s, and their

clients’ fundamental right to interstate travel. See doc. 1 ¶¶ 87–97; doc. 23

13
Yellowhammer’s passing use of the word “overbroad” in Counts I and II of its complaint—titled
“Yellowhammer Fund’s Constitutional Rights to Expression” and “Association,” doc. 1 at 29–31
(emphasis added)—is facially insufficient to state a facial overbreadth claim distinct from its
individual as-applied First Amendment claims. Moreover, its complaint lacks any factual
allegations as to overbreadth, woefully failing to “bear[] the burden of demonstrating, from the
text of the law and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks, 539
U.S. 113, 122 (2003) (cleaned up) (emphasis added). And because “invalidation for overbreadth
is strong medicine that is not to be casually employed[,]” courts “vigorously enforce[] the
requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also
relative to the statute’s plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292–93
(2008). The laws at issue have a plainly legitimate sweep well beyond the challenged applications
because they also criminalize inchoate crimes where the underlying conduct is unlawful in both
states. As just one of myriad examples, there’s no disputing that Alabama can legitimately
criminalize conspiring in Alabama to commit murder in Georgia. So even if the challenged laws
implicated protected speech (and they do not, as explained above), Yellowhammer Fund’s
overbreadth challenge must fail. Yellowhammer Fund cannot bring a facial overbreadth challenge
to only a subset of a statute’s applications that it disfavors. A law is either overbroad as a whole,
or not at all. The challenged Alabama laws are not.

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¶¶ 128–31. But relevant Alabama law does not violate the right to travel for any of

them.

The right to interstate travel protects three components: (1) “the right of a

citizen of one State to enter and to leave another State,” (2) “the right to be treated

as a welcome visitor rather than an unfriendly alien when temporarily present in the

second State,” and, (3) “for those travelers who elect to become permanent residents,

the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489,

500 (1999). The second and third components are irrelevant here because they are

only implicated when a state treats out-of-state residents differently than it does its

own residents. See id. at 501–03.

The right of a citizen to enter and to leave another state concerns “the right of

‘free ingress and regress to and from’ neighboring states.’” Id. (quoting United States

v. Guest, 383 U.S. 745, 758 (1966)). In other words, the constitutional right to

interstate travel protects travelers from “the erection of actual barriers to interstate

movement.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277 (1993).

“[M]ere burdens on a person’s ability to travel from state to state are not necessarily

a violation of their right to travel.” Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir.

2005); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (“Minor restrictions

on travel simply do not amount to the denial of a fundamental right that can be

upheld only if the Government has a compelling justification.” (citation omitted)).

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Indeed, States can burden interstate travel when that burden is reasonable in

light of the State’s interest in the burden. In Doe v. Moore, the Eleventh Circuit

rejected an argument from sex offenders that the Florida Sex Offender Act

“unreasonably burdened” their right to travel by requiring them to notify Florida law

enforcement in person when they change permanent or temporary residences. 410

F.3d at 1348–49. Despite recognizing that the requirement burdened the right to

travel, the Eleventh Circuit did not find that burden unreasonable given the State’s

legitimate, “strong interest in preventing future sexual offenses[.]” Id.; Saenz, 526

U.S. at 499 (noting that a State statute cannot “unreasonably burden” the right to

travel); see also United States v. Simington, No. EP-10-CR-2275-KC, 2011 WL

145326, at *9 (W.D. Tex. 2011) (“[W]here a statute imposes a reasonable burden or

mere inconvenience on a person’s right to travel, the statute does not violate any

constitutional right.” (emphasis omitted) (citing Doe, 410 F.3d at 1349)).

Here, whether considering the right to travel of either Plaintiffs’ clients or of

Plaintiffs and their staff, Alabama law does not infringe upon it.

A. Alabama Law Does Not Violate the Right to Travel of Plaintiffs’

Clients.

As discussed above, Plaintiffs do not have standing to invoke their clients’ or

potential clients’ right to travel in this case. See infra Part I.A. But even if they did,

their complaints do not state a claim because either (1) the right to travel is not

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implicated by the minor restrictions alleged here or (2) to the extent that those minor

restrictions are cognizable, they are supported by legitimate State interests.

At the onset, it is important to state the obvious: Ala. Code § 13A-4-4 does

not forbid a woman from leaving the state to obtain an abortion, which Plaintiffs

recognize in their complaints, see doc. 1 ¶ 18; doc. 23 ¶ 5. Plaintiffs’ theory is instead

that without their “information, counseling, and support” in finding available out-

of-state abortions, a pregnant woman’s right to travel would be unconstitutionally

burdened. E.g., doc. 23 ¶ 66.

The relevant statutes do not implicate the right to travel because they present

no burden to it. The supposed “burden” that Ala. Code § 13A-4-4 places on the

ability of women seeking an abortion to travel is not the kind of policy that implicates

the fundamental right to travel. It merely regulates certain assistance for interstate

travelling. A regulation on, for example, travel agents or hotels does not implicate

the right to travel. See, e.g., Matsuo v. United States, 586 F.3d 1180, 1183 (9th Cir.

2009) (“[N]ot everything that deters travel burdens the fundamental right to travel.

States and the federal government would otherwise find it quite hard to tax airports,

hotels, moving companies or anything else involved in interstate movement”);

Cramer, 931 F.2d at 1030 (“If every infringement on interstate travel violates the

traveler’s fundamental constitutional rights, any governmental act that limits the

ability to travel interstate, such as placing a traffic light before an interstate bridge,

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would raise a constitutional issue.” (footnote omitted)). Nor does a regulation on

how one may travel implicate the right. See, e.g., Gilmore v. Gonzales, 435 F.3d

1125, 1137 (9th Cir. 2006) (Appellant had no “fundamental right to travel by airplane

even though it is the most convenient mode of travel to him[.]”).

Even if those alleged minor restrictions were cognizable, they are

constitutional nonetheless. The test, as applied in Doe v. Moore, for burdens on

interstate travel is reasonableness. See 410 F.3d at 1348–49. The law easily clears

that hurdle because, as applied to the Plaintiffs, it is supported by strong, legitimate

interests including preserving unborn life, maternal health (especially considering

that Alabama cannot police the medical standards of out-of-state abortion providers),

and “the preservation of the integrity of the medical profession[,]” Dobbs, 142 S. Ct.

at 2228, 2284. The “burdens” Plaintiffs allege as to the interstate travel of their

clients, if burdens at all, are reasonable and thus constitutional.

B. Alabama Law Does Not Violate the Right to Travel of Plaintiffs or

Their Staff.

While Plaintiffs argue that their clients suffer an indirect burden on the right

to travel, Plaintiffs’ own first-party burden and their staff’s third-party burden also

fail to state a claim.

1. The Organizational Plaintiffs Do Not Have a Right to Travel.

Undoubtedly, non-natural persons or business entities enjoy some of the same

constitutional rights as natural persons do. See, e.g., Santa Clara County v. S. Pac.

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R.R. Co., 118 U.S. 394 (1886) (equal protection); Minneapolis & St. L. Ry. Co. v.

Beckwith, 129 U.S. 26 (1889) (due process); Citizens United, 558 U.S. at 331 (free

speech). But non-natural persons do not enjoy “purely personal” constitutional

guarantees “because the ‘historic function’ of the [purely personal guarantees] has

been limited to the protection of individuals.” First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765, 778 n.14 (1978) (plurality opinion). Whether a right is purely personal

depends chiefly “on the nature, history, and purpose of the particular constitutional

provision.” Id.

The nature, history, and purpose of the right to travel demonstrate that the

right to travel does not exist for non-natural persons. Article IV of the Articles of

Confederation provided that “the people of each State shall have free ingress and

regress to and from any other State.” From the earliest days of the Republic, the right

was described as the “right of a citizen of one state to pass through, or to reside in

any other state”—that is, a flesh and blood, physical citizen. Corfield v. Coryell, 6

F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (Washington, J., on circuit); see Saenz, 526

U.S. at 500 (same). The right encompasses the “protection of individuals from

violations of civil rights that impinge on their free movement[.]” United States v.

Guest, 383 U.S. 745, 759 (1966) (emphasis added). And tellingly, corporations often

challenge States’ regulations on out-of-state businesses under the Dormant

Commerce Clause, not as a right to travel violation. See, e.g., Norwegian Cruise Line

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Holdings Ltd v. State Surgeon Gen., Fla. Dep’t of Health, 50 F.4th 1126, 1141–54

(11th Cir. 2022).

Plaintiffs’ complaints illustrate the point. The West Alabama Plaintiffs allege

that “[t]he United States Constitution protects the fundamental right of individuals

to ‘travel freely’ among the states.” Doc. 23 ¶ 129 (emphasis added) (citation

omitted); see also id. ¶ 131 (“restrict[ing] Alabamians’ inter-state movement

(emphasis added)). Meanwhile, Yellowhammer alleges that it “previously traveled,

and desires to once again travel, between states with passengers in its vehicles who

need transportation to other states” to facilitate abortions. Doc. 1 ¶ 89. Corporate

personhood might be a legal fiction, but legal fictions don’t transmute the intangible

to the tangible. For example, one might say that Apple issued a press release about

a new iPhone, but Apple cannot stand up in front of an audience, hold the new

iPhone, and demonstrate its features. Steve Jobs did that. Similarly, Yellowhammer

could “provide[] financial and practical support” to their clients, (presumably

through the use of funds and words), see doc. 1 at 16; but it did not and could not

get into a car, turn the key, and drive a client to another state. In other words, non-

natural persons cannot do tangible acts, like driving a car, which are inherent to the

concept of travel. Its staff might have done that, but its staff (bar Dr. Robinson for

Alabama Women’s Center) are not parties to this suit.

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2. Criminalizing Conspiracy Does Not Implicate Plaintiffs’ and Their

Staff’s Right To Travel Regardless.

Nevertheless, even if the organizational Plaintiffs had a right to travel,

Alabama law does not implicate their or Dr. Robinson’s right. And even if Plaintiffs

had standing to sue on behalf of their staff’s right to travel, those claims would fail.

As previously stated, Yellowhammer alleges that it “previously traveled, and

desires to once again travel, between states with passengers in its vehicles who need

transportation to other states” to facilitate abortions. Doc. 1 ¶ 89. Because it no

longer can do so, so the argument goes, their right to travel has been violated.

The theory ignores what Alabama law actually prohibits. For example,

§ 13A-4-4 criminalizes a “conspiracy formed in this state.” That the statute may

reach or even prohibit out-of-state conduct for purposes of the Alabama-formed

conspiracy is irrelevant. See Thompson, 17 So. at 516 (“The place at which it is

intended to commit the felony is not material. It is the law of the place where the

conspiracy is formed which is broken.”). A right-to-travel challenge against

Alabama conspiracy law as applied to kidnapping, say, on the grounds that it would

reach conspiracies where part of the assistance was crossing state lines would clearly

fail. Plaintiffs may try to distinguish that challenge based on the fact that most states

criminalize kidnapping. At bottom then, Plaintiffs’ theory must provide that the

constitutional right to travel encompasses the right to travel and to do whatever is

legal in other states. But the right to interstate travel is not that broad, and Plaintiffs

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have so far not offered binding authority saying otherwise. In this context, the right

to travel only prevents States from erecting “actual barriers” to interstate movement.

Bray, 506 U.S. at 277.

Jones v. Helms stands as another bar to Plaintiffs’ theory. 452 U.S. 412 (1981).

There, a prisoner challenged a Georgia law that charged parents with willful and

voluntary abandonment of a dependent child generally as a misdemeanor but

enhanced the crime to a felony if the parent left the state after abandonment. See

generally id. The Court held that the statute did not violate the right to travel for two

reasons relevant here.

One, nothing in the Constitution suggested “that a person who has committed

an offense punishable by imprisonment has an unqualified federal right to leave the

jurisdiction prior to arrest or conviction.” Id at 420. Here, Alabama’s law

criminalizes only “conspirac[ies] formed in this state,” ALA. CODE § 13A-4-4, so

once a person or group conspires in Alabama to procure an out-of-state abortion,

they have committed the criminal conduct. See also Thompson, 17 So. at 516. In

Jones, prisoner’s “criminal conduct within the State . . . necessarily qualified his

right to thereafter freely to travel interstate.” 452 U.S. at 421. Likewise, by

facilitating an out-of-state abortion, Plaintiffs have qualified their right to freely

travel interstate by engaging in criminal conduct (a conspiracy) within Alabama.

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Two, a “restriction [on the right to travel] that is rationally related to the

offense itself is within the State’s power.” Id. at 422. Alabama’s conspiracy law does

not enhance a sentence of a conspirator if he crosses state lines; but it could under

Jones because such an enhancement would be rationally related to the offense of

conspiring to procure an abortion. For one, an enhancement would go to the

“imposition of a proper punishment.” Id. That is, a former abortion provider in

Alabama who physically drove a client across state lines to take her to an out-of-

state abortion provider could be punished greater than one who referred the client

for an out-of-state abortion. A fortiori then, Alabama’s conspiracy law, which does

not hinge on a conspirator’s interstate travel, does not violate the Plaintiffs’ right to

travel.

* * *

Alabama’s conspiracy law violates no one’s right to travel. Their clients’ right

to travel is not implicated here; and even if it was, Alabama law does not present an

unconstitutional burden on it given the State’s strong interests in protecting unborn

life and maternal health. And Alabama law only criminalizes conspiracies formed in

Alabama, thus also not affecting Plaintiffs’ or their staff’s own right to travel at all.

VI. Alabama Law Does Not Violate Any So-Called “Right to Be Free From
Exterritorial Application of State Law.”

Yellowhammer alleges that Alabama’s conspiracy law, as applied to them,

violates their “right to be from extraterritorial application of state law.” Doc. 1 at 34.

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Assuming arguendo that such a right exists, Alabama’s conspiracy law does not

implicate it because it does not apply extraterritorially. As a general matter, Alabama

“follow[s] the general rule of statutory construction that, in order to have

extraterritorial effect, a statute must explicitly provide for that effect.” Ex parte Old

Republic, 733 So. 2d 881, 884 (Ala. 1999). Moreover, the law at issue only

criminalizes a “conspiracy formed in this state.” ALA. CODE § 13A-4-4 (emphasis

added); see also Thompson, 17 So. at 516 (“It is the law of the place where the

conspiracy is formed which is broken.”). The law plainly does not “criminalize out-

of-state activity which is lawful where it occurs[.]” Doc. 1 ¶ 98. So, while Plaintiffs’

clients may be allowed under Alabama law to obtain abortions outside Alabama,

Plaintiffs are “plainly [not] allow[ed]” under Ala. Code § 13A-4-4 to conspire in

Alabama to help procure abortions. See id. ¶ 101.

Yellowhammer points to a few cases, see doc. 1 ¶¶ 12–15 (citations omitted),

that allegedly demonstrate a right to be free from laws with extraterritorial

application; each of them, however, further prove that this alleged right is not

implicated here. First, State Farm Mutual Automobile Insurance Co. v. Campbell,

538 U.S. 408, 422 (2003), does not apply because Alabama’s conspiracy law

punishes only “conspiracies formed in this state,”—that is, activity undertaken

“within its borders” by “defendant[s] who act[] within its jurisdiction.” And Nielsen

v. Oregon, 212 U.S. 315 (1909), doesn’t help because Alabama’s conspiracy law

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does not prohibit “doing within the territorial limits of [another state] an act which

that state had specially authorized him to do”—it prohibits forming conspiracies in

Alabama.14 Lastly, Bigelow v. Virginia, 421 U.S. 809 (1975),15 an abortion-related

case, doesn’t move the needle either because Alabama enforcing its conspiracy law

as to conduct occurring wholly in Alabama does not “acquire power or supervision

over the internal affairs of another State.”16 Thus, Alabama’s conspiracy statute does

not violate the so-called right to be free from extraterritorial application of State law.

CONCLUSION

Plaintiffs’ complaints should be dismissed.

14
Additionally, the Supreme Court in Heath v. Alabama stated that Nielsen was “limited to its
unusual facts and has continuing relevance, if it all, only to questions of jurisdiction between two
entities deriving their concurrent jurisdiction from a single source of authority.” 474 U.S. 82, 91
(1985).
15
The Bigelow statement that Plaintiffs rely on, see doc. 1 ¶ 13, is dictum. The quoted statement
was not essential in the Court’s holding that the statute was unconstitutional under an outdated
First Amendment balance-of-interests test, Bigelow, 421 U.S. at 812. And that holding is no longer
good law because it rested on abortion’s then-constitutionally protected status, id. at 822; see also
id. at 830 (Rehnquist, CJ., dissenting). The State “may freely regulate commercial speech that
concerns unlawful activity[,]” including abortion in Alabama. Fla. Bar v. Went for It, Inc., 515
U.S. 618, 623–24 (1995).
16
Plaintiffs rely on National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023), a recent
Dormant Commerce Clause case, for the proposition that “courts have long consulted . . . the
[constitutional] principles of ‘sovereignty and comity.’” See doc. 1 ¶ 99. Because their Complaint
at no point invokes the Dormant Commerce Clause and indeed grounds its supposed “Right to Be
Free From Extraterritorial Application of State Law” in the Fourteenth Amendment, id. at 34 ¶ 98,
the State does not take Yellowhammer to be raising a Dormant Commerce Clause claim.
Nonetheless, such claim would fail for three reasons. First, there is no extraterritoriality principle
within the Dormant Commerce Clause that “almost per se forbid[s] enforcement of state laws that
have the practical effect of controlling” out-of-state commerce. Nat’l Pork Producers, 143 S. Ct.
at 1153–54. Second, Alabama’s conspiracy law does not discriminate against out-of-state
commerce. See id. at 1153. And third, Plaintiffs have not alleged a substantial burden to trigger
Pike balancing, and even if they did, Alabama law would easily satisfy it. See id. at 1161. See
generally Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

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Respectfully submitted,

Steve Marshall
Attorney General
James W. Davis (ASB-4063-I58J)
Deputy Attorney General
/s/ Benjamin M. Seiss
Benjamin M. Seiss (ASB-2110-O00W)
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
[email protected]
[email protected]

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CERTIFICATE OF SERVICE

I certify that I electronically filed this document using the Court’s CM/ECF

system on August 28, 2023, which will serve all counsel of record.

/s/ Benjamin M. Seiss

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