Battle lines emerge over out-of-state abortion
(The Hill) – New battle lines are emerging around the issue of interstate travel for abortion, as a confusing patchwork of state and federal rules materializes in the wake of the Supreme Court’s overturning of Roe v. Wade.
No state currently bans women from obtaining an out-of-state abortion. But conservative lawmakers in a handful of GOP-led states where abortion is banned or restricted have floated measures that would penalize those involved — even tangentially — in helping someone access the procedure in another state.
Other red state restrictions have already had a chilling effect on doctors prescribing abortion pills across state lines.
At the other end of the political spectrum, several blue states have taken steps to become abortion safe havens, saying they would refuse to cooperate with red-state investigations into cross-border abortion cases. Meanwhile, the Justice Department (DOJ), is digging in for a fight, vowing to draw on federal legal authority to protect women who seek an abortion in states where it is legal.
Court watchers say the high court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey, authored by Justice Samuel Alito, will set in motion a new wave of abortion-related litigation.
“Alito suggested that Roe and Casey were unworkable and returning abortion laws to the states would help make them workable. But we’re seeing the very opposite,” said Rachel Rebouché, a Temple University School of Law. “We should expect even more conflict, not less.”
For nearly 50 years after Roe was decided, a constitutional right to abortion barred states from outlawing abortion before fetal viability. But since the Supreme Court toppled that landmark 1973 precedent last month, abortion is now banned in at least nine states, more bans and restrictions are expected soon and residents of less-permissive states who seek to terminate an unwanted pregnancy are increasingly looking beyond their state’s borders.
The dynamic has drawn attention from Republican lawmakers in states where abortion is restricted.
The Texas Freedom Caucus, a group of 11 far-right state lawmakers, plan to introduce legislation that would make it a felony for employers to pay for workers to obtain an abortion in a state where it’s legal or reimburse travel expenses. The group announced its proposal last week in a pugnacious letter to the to the Dallas office of the powerhouse law firm Sidley Austin.
“It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children,” the Texas Freedom Caucus letter states. “It also appears that Sidley has been complicit in illegal abortions that were performed in Texas before and after the Supreme Court’s ruling (overturing Roe). We are writing to inform you of the consequences that you and your colleagues will face for these actions.”
The group said its legislative proposal would also contain a bounty-style enforcement mechanism — based on Texas’s six-week abortion ban, S.B. 8 — that would incentivize private citizens to bring civil lawsuits against those suspected of helping to facilitate an out-of-state abortion on a Texas resident.
Arkansas State Sen. Jason Rapert (R), who heads the National Association of Christian Lawmakers, expressed interest in a similar measure in his home state that would target businesses engaged in what he called “abortion trafficking.”
“They’re trying to traffic individuals and basically put money into the coffers of the abortion industry and circumventing these abortion bans,” he told Arkansas-based ABC affiliate 40/29 News. “So for instance, Dick’s Sporting Goods, Bank of America and some other companies have said they’re going pay people to travel and get abortions. Well, what about the shareholders? We believe this is an illegal use of shareholders’ money.”
Similar proposals have been backed by lawmakers in South Carolina and Oklahoma. One such bill in Missouri failed to clear the 2022 legislative session. But its sponsor, Missouri state Rep. Mary Elizabeth Coleman (R), a special counsel at the conservative public interest firm the Thomas More Society, told The Washington Post that antiabortion activists and lawmakers in other states were interested in seeing such legislation signed into law.
Legal experts described the looming fight over abortion access as something of a tinderbox.
“The stakes are so high because people are going to try to get medical care any way they can, but anti-abortion people are going to try to stop them,” said David Cohen, a law professor at Drexel University. “We are now on the verge of seeing these very serious interstate and inter-jurisdictional conflicts because of the stakes.”
Some GOP abortion restrictions have already created a chilling effect in more-permissive states.
In Montana, where the state’s supreme court has held that Montana’s constitution protects abortion, Planned Parenthood is limiting access to medical abortion for out-of-state residents.
“The way abortion pills work is that there are two different sets of pills you take, spaced apart in time, and so the patient could wind up taking the second set of pills, or even the first set, in an anti-abortion state and risk legal issues,” Cohen said.
At the other end of the political spectrum, a number of blue states have taken steps to become safe havens for those traveling from out of state for abortions.
In the run-up to Roe’s demise, California and Connecticut passed laws that would shield abortion providers and patients from out-of-state prohibitions.
The California law, A.B. 1666, which was sponsored by Planned Parenthood California, renders any legal action brought against the right to abortion unenforceable in California courts.
“It puts up a legal shield for our doctors, providers and patients against attacks from the radical-right extremists who seek to strip women of their fundamental right,” said California Assemblymember Rebecca Bauer-Kahan (D), the bill’s primary sponsor.
Democratic governors in seven other states have signed executive orders with other protections.
Some blue state measures codify a refusal to comply with subpoenas, investigations or records requests from conservative states. Other measures even allow providers to countersue if they’re targeted by out-of-state laws. Still other provisions would deny red-state requests to extradite those suspected of violating abortion bans.
The emerging legal landscape will likely lead to clashes between states that are novel and intense, experts said.
“Once these laws are tested, I think they’ll be wending their way back up to the Supreme Court as states seek to enforce conflicting laws,” said Naomi Cahn, a law professor at the University of Virginia.
Meanwhile the DOJ said it would aid in the fight to protect abortion access. In statement Tuesday announcing the creation of reproductive rights task force, the DOJ indicated that its legal strategy would take cross-border considerations into account.
The DOJ has also said it is prepared to take to action to make sure the abortion medication Mifepristone, which has deemed by the FDA to be safe and effective, would remain widely available. More than a dozen states, mostly in the South and Midwest, ban providers from prescribing abortion pills through telemedicine.
Medication abortion has become an increasingly common method for ending pregnancies, accounting for 54 percent of all abortions in 2020, according to the Guttmacher Institute.
The Supreme Court has not made clear how it might rule if a case challenging out-of-state penalties were to reach the high court. Justice Brett Kavanaugh, who signed onto Alito’s majority ruling, wrote a concurring opinion that offered some limited insights into his thinking on the issue.
“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Kavanaugh wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
But legal experts said Kavanaugh’s opinion raised more questions than it answered, and only amounted to the view of a single justice.
“He talks solely about the patient has a right to travel out of state. Well, that’s a nice thing for him to say. But does that mean that the patient’s friend has a right to drive them out of state? Does the patient’s mother has a right to buy them hotel room out of state for when they need to stay over?” Cohen said. “There are so many different permutations of what can happen here that it could go to the Supreme Court many different times.”