BIRMINGHAM, Ala. — Alabama Attorney General Steve Marshall has joined Louisiana and Arkansas in a new effort to stop health care providers in California, Massachusetts and New York from prescribing and mailing abortion medication to patients in states where abortion is banned, escalating a post-Roe conflict over whether one state’s prohibition can extend across another state’s borders.
The three Republican-led states filed two related cases Sept. 30: a request that the U.S. Supreme Court allow them to sue the three Democratic-led states over their abortion “shield laws,” and a federal lawsuit in Louisiana targeting nearly 30 people and organizations accused of helping prescribe, dispense or ship abortion medication into Alabama, Arkansas and Louisiana.
The Supreme Court filing does not mean the justices have ruled on the merits. Because it is an interstate dispute, Alabama, Arkansas and Louisiana are asking the court for permission to file what is known as an original action. The states seek to invalidate shield laws that protect providers from out-of-state investigations, subpoenas, criminal prosecutions, civil lawsuits and extradition requests when the underlying abortion care is lawful where the provider practices.
Marshall’s office has portrayed the litigation as an effort to enforce Alabama law. The states contend that the shield laws interfere with their sovereignty and their ability to enforce abortion bans after the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization eliminated the federal constitutional right to abortion.
The legal campaign illustrates a widening contradiction in the country’s abortion politics. The Supreme Court’s Dobbs majority said authority to regulate abortion should return to “the people and their elected representatives,” a formulation widely understood to leave policy to the states. Yet the Alabama-led challenge asks the federal courts to override the policy judgments of states that have chosen to protect abortion providers operating legally within their own borders.
For patients in Alabama, where abortion is banned in nearly all circumstances, the distinction is far from academic. The state’s Human Life Protection Act prohibits abortion, with narrow statutory exceptions, and Alabama has no rape or incest exception. The ban covers medication abortion as well as procedures.
Medication abortion generally involves mifepristone and misoprostol. It has become central to the national fight over reproductive access, particularly after Dobbs enabled states including Alabama to enforce near-total bans. The new Louisiana federal complaint alleges that providers and organizations used websites and other means to advertise, prescribe or send abortion medication to people in the plaintiff states. The defendants have not had an opportunity to litigate those allegations in court.
New York Attorney General Letitia James, whose state is among the defendants, said the lawsuit aims to allow abortion-ban states to punish patients and providers for care that is lawful in New York. The dispute is expected to test the limits of competing state powers in an era when a patient may live in Alabama, consult a provider by telehealth in another state and receive medication through the mail.
The conflict also reaches beyond the immediate issue of abortion pills. If the courts accept Alabama’s argument, states that prohibit abortion could gain greater leverage to obtain records, pursue providers and enlist the legal machinery of states that have affirmatively chosen to protect reproductive care. If the shield laws survive, states such as California, Massachusetts and New York would retain their ability to decline participation in out-of-state abortion investigations involving care legal under their own laws.
The Alabama lawsuit follows a longer and more complicated history than the modern partisan fight often suggests.
In early American common law, abortion before “quickening” — historically understood as the point when fetal movement could be felt, often around the 16th to 18th week of pregnancy — generally was not an indictable offense. The Supreme Court’s 1973 Roe v. Wade decision reviewed that history and noted that the first state abortion statute was enacted in 1821; states gradually adopted broader criminal prohibitions through the middle and late 19th century, erasing the quickening distinction and increasing penalties.
Those nineteenth-century bans were shaped by social and political forces that included a professionalizing medical establishment, changing ideas about women’s roles and moral campaigns against contraception and abortion. By the time the Supreme Court decided Roe, most states had made abortion a crime except in limited circumstances, often to save the life of the pregnant patient.
Roe held in 1973 that the Constitution protected a right to choose abortion, though states could regulate the procedure and could prohibit it after fetal viability with exceptions for the life and health of the pregnant patient. For nearly five decades, abortion remained a constitutionally protected right nationwide, even as states imposed waiting periods, parental-consent requirements, clinic regulations and other limits.
Dobbs reversed Roe and Planned Parenthood v. Casey on June 24, 2022, holding that the Constitution does not confer a right to abortion and returning abortion policy to elected officials. Alabama’s near-total ban took effect shortly afterward.
Since then, the political promise of state-by-state decision-making has run up against the reality that health care, mail delivery, telemedicine and digital communications do not stop at a state line. Alabama’s participation in the new lawsuits underscores that the next phase of the abortion fight is not only about whether a state can ban abortion within its territory, but whether it can punish or deter people beyond it who provide care that is legal where they live and work.
The tension is especially sharp in Alabama, where government officials who often invoke limited government and individual liberty have supported some of the nation’s broadest restrictions on reproductive decision-making. The Alabama Supreme Court’s 2024 ruling in LePage v. Center for Reproductive Medicine extended the state’s wrongful-death law to frozen embryos, declaring that the law covers unborn children regardless of their location. The decision prompted national scrutiny and led some fertility providers to pause IVF services while lawmakers considered protections for clinics and patients.
Supporters of the Alabama-led lawsuits say states should be able to enforce their abortion bans and prevent the shipment of abortion medication to residents. Opponents argue the cases are an attempt to export Alabama’s abortion ban into states that have made a different democratic and legal choice — and to make private medical decisions subject to surveillance and punishment across state lines.