In Alabama abortion fight, it’s conservatives against conservatism

There are two sorts of conservatism.

There’s the kind espoused by the 18th-century British politician Edmund Burke. It emphasizes restraint; reverence for tradition and maintaining political and social order through mutual duty. Laws must prevent mob rule at the bottom and tyranny at the top. Change is acceptable but not revolution. One should work with the world as it is, inside a moral framework aware of human shortcomings.

“The effect of liberty on individuals is that they may do what they please; we ought to see what it will please them to do before we risk congratulations that may soon become complaints,” Burke wrote.

You may not agree with this approach. But it’s one that can be defended in good faith.

And yet it’s not the way self-styled American conservatives operate.

They behave more like John Randolph of Roanoke, an antebellum Virginia congressman with a high-pitched voice and a tendency to violence.

Randolph felt no duty to anyone outside his peer group. As for his thoughts on restraint, the congressman added the phrase “Do What You Feel” to his family’s coat of arms.

He only revered the power he and other slaveholders held over Black men and women. Randolph’s single political principle was full control of the government by elites (i.e. slaveholders) without popular will or Washington D.C. getting in the way.

“I am an aristocrat,” he reportedly said. “I love liberty; I hate equality.”

These two threads — respectful restraint vs. elite impunity — run through Alabama Attorney General Steve Marshall’s attempt to prosecute Alabamians helping people get out-of-state abortions.

Back in 2022, Marshall told a conservative talk show host that under Alabama’s abortion ban, providing that help was “potentially criminally actionable for us.” He doubled down on this argument in a court filing the following year.

“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 brief said.

This is ludicrous. Performing an abortion in Alabama is a felony. So is selling marijuana for recreational use. By Marshall’s logic, it would be “criminally actionable” for me to give you gas money to drive to Colorado, where you can legally smoke cannabis for fun.

Reproductive health care providers sued Marshall in 2023. Last week, U.S. District Judge Myron Thompson sided with them.

Like a responsible jurist, he explained his decision through precedent and established rights.

To take one part: Thompson noted that American law has always recognized a right to travel to another state and do anything lawful there. He cited the privileges and immunities clause in Article IV of the U.S. Constitution. And the earlier Articles of Confederation. And the still earlier Magna Carta, which recognized the right of merchants to travel. He also cited U.S. Supreme Court cases going back to the 19th century saying Alabama can’t harass you for what you do within the laws outside Alabama.

“There is no end-run around the right to travel that would allow states to burden travel selectively and in a patchwork fashion based on whether they approve or disapprove of lawful conduct that their residents wish to engage in outside their borders,” Thompson wrote.

Put the arguments side-by-side. One claims imperial power over state residents. The other invokes the past to defend individual rights.

Then ask yourself: who is the conservative here?

There’s the political frame, of course. Marshall is a Republican who praises President Donald Trump, bullies transgender kids and ignores public safety in Alabama to fight culture wars in other states.

Thompson is a federal judge who has upheld abortion rights; ordered Roy Moore to remove the Ten Commandments from the Helfin-Torbert Judicial Building in 2003 and directed the state to provide adequate mental health care in prisons.

But then look at their conduct.

Thompson is defending an idea of individual freedom, rooted in centuries of jurisprudence, that rejects state coercion.

Marshall fights for a Randolph-like vision of government where wealthy white men have the liberty to indulge their whims and hurt others if it advances their interests. It respects boundaries so long as they restrain women and minorities. And one that crosses state borders to punish those who break free.

You can see Marshall espousing this elsewhere. He boasts of joining legal briefs defending Trump’s attempt to deport Venezuelans without due process or evidence of a crime. He has been gleeful about an unelected billionaire throwing Alabamians out of work for the crime of working for the federal government.

It’s a dangerous, revolutionary attempt to create a world where a white man and his sycophants can act without restraint from Congress, the judiciary or broad political consensus.

And it hauls down the rule of law, replacing it with a giant crest that says “Do What You Feel.”

I know who the conservative is here. And it’s not the attorney general claiming to be one.