As abortion bans began to go into effect in more than 20 states following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, people seeking abortion services in these states have begun to cross state lines to find places where abortion remains legal.
Clinics themselves — including the Jackson Women’s Health Clinic at the center of the Dobbs decision, which coincided with overturning Roe v. Wade last month — are also in the process of moving from states where abortion is illegal now, including Mississippi, North Dakota, Tennessee and Texas, into bordering or nearby states, such as Illinois, New Mexico and Minnesota, to continue to provide services.
While Dobbs ended one chapter in the legal battle over abortion rights and women’s autonomy, it opened a new and largely unexplored front over the right to interstate travel.
“It’s never been about state’s rights,” said Mary Ziegler, a law professor at the University of California, Davis, and an expert on abortion law. “The movement, from its inception, was about fetal personhood, which means that the movement thinks that all abortions are human rights violations.”
In March, Missouri state Rep. Mary Elizabeth Coleman (R) introduced the first bill in the country making it illegal for state residents to leave to get an abortion or for anyone to help them. “If you believe as I do that every person deserves dignity and respect and protection whether they’re born or unborn, then of course you want to protect your citizens, no matter where they are,” Coleman told Politico in March.
Coleman’s bill did not pass, but it is not a lone example.
Preventing Interstate Travel
The Republican Party’s opposition to out-of-state travel for abortions was on full display when Senate Democrats sought unanimous consent to pass a bill affirming the right to travel to seek an abortion. Sen. Steve Daines (R-Mont.) said the bill would give “fly-in abortionists free rein,” while Sen. James Lankford (R-Okla.) referred to those seeking out-of-state abortions as “being trafficked,” as though they were the victims of a crime.
Though abortion opponents may look to restrict travel through the blunt instrument of a ban like in Coleman’s bill, they are more likely to try a different approach that burdens and threatens those helping an abortion seeker rather than the patient themself.
“Borders and jurisdiction will become the central focus of the abortion battle,” according to a draft paper titled “The New Abortion Battleground,” by law professors David Cohen, Greer Donley and Rachel Rebouché. “What had been, until now, a uniform national right has become a state-by-state patchwork. In a post-Roe country, states will attempt to impose their local abortion policies as widely as possible, even across state lines, and will battle one another over these choices.”
States could seek to reach beyond their boundaries to punish residents or non-residents for abortion-related activity.
“If a state declares that a fetus is a living person, it follows, legally, that a person having an out-of-state abortion harmed a person conceived in-state,” they write. “Charges could be brought against the person obtaining the abortion, the person or persons performing the abortion or anyone who aided and abetted it.”
Some states allow prosecutors to charge residents with a crime if any part of the criminal act occurred within state lines. That could mean a web search, a phone call or a car ride that was part of a plan to seek legal abortion services elsewhere could lead to criminal charges.
For example, one general criminal statute in Alabama states, “A conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense.”
State legislators and anti-abortion groups are already working to craft new legislation along these lines to limit interstate travel.
A post-Roe draft legislation memo released by the National Right to Life Committee, one of the first and most influential groups founded to oppose abortion rights, suggests state legislatures pass laws to make sure “all parties participating in an illegal abortion are subject to enforcement.” This would mean either making it a felony crime or to use existing conspiracy statutes to charge anyone who aids or abets an abortion by “giving instructions over the telephone, the internet, or any other medium of communication,” “hosting or maintaining a website, or providing internet service,” or “providing referrals to an illegal abortion provider.”
Proposed draft legislation from the Thomas More Society and the National Association of Christian Lawmakers would create a private right-of-action for citizens to sue anyone helping someone seeking an abortion out of state, according to The Washington Post.
After the law firm Sidley Austin announced it would cover the cost of out-of-state travel for any employee seeking an abortion, state Republican legislators with the Texas Freedom Caucus sent the firm a letter threatening anyone working there with criminal sanction if they furnish “the means for procuring an abortion knowing the purpose intended.” The letter also announced plans to introduce legislation creating new civil and criminal penalties for corporations that provide funds for employees to seek abortion services in other states.
These laws would likely cut hardest against people who live in the states where the law is enacted. But out-of-state doctors, abortion funds or anyone else helping someone leave an abortion-banning state to get an abortion where it is legal could also face civil or criminal penalties. The question is what effect those laws would have on those not living within the state’s bounds.
Say a civil charge is brought against an Illinois doctor for treating a patient from Texas. The doctor could simply not show up in court in Texas, have a default judgment entered against them and never pay the fine. However, this would mean that the doctor would have to avoid all travel to Texas in order to evade paying the civil penalty.
One can see how anyone involved in providing abortions, advocating for abortion rights or promoting legal abortion could see their ability to travel curtailed to any states that enact these laws ― just through the filing of civil suits.
As for criminal penalties, states that make abortion illegal would need the help of legal abortion states to extradite anyone charged. That is almost certain not to happen.
Since the Dobbs decision came down, governors and state legislatures in states that are upholding abortion rights have enacted executive orders and legislation declaring it state policy to refuse to comply with extradition requests over abortion-related charges.
The Right To Travel?
Ultimately, post-Dobbs extradition issues will wind up in court if someone who commits an illegal abortion-related act in a state like Texas flees to a state like California to avoid facing charges at home. The U.S. Constitution’s Extradition Clause requires states to return fugitives from justice to the states where they are charged with committing a crime.
In a concurrence filed in Dobbs, Justice Brett Kavanaugh raised the question of whether states may constitutionally ban residents from traveling out of state for abortion services.
“In my view, the answer is no based on the constitutional right to interstate travel,” Kavanaugh wrote.
Kavanaugh’s declaration suggests that the Supreme Court would not uphold a law banning interstate travel for abortion. But it is also a very limited statement.
“I take the concurrence with a huge grain of salt,” said Elizabeth Nash, a state abortion policy expert at the Guttmacher Institute, a research nonprofit focused on reproductive health and rights.
“That would seem to suggest that if a state just straight-up passed a law saying you can’t travel out of state for abortion, that that would probably not be OK,” Zeigler explained. “But anything other than that, like, if it’s just states saying you can travel all you want but when you get back we’re prosecuting the doctor ― it’s not as clear what somebody like Kavanaugh would do with that.”
Kavanaugh did not state his position on whether states can prosecute someone for an act committed in another state, nor did he state whether it’s constitutional for states to place increased burdens on someone who is thinking about leaving the state to have an abortion.
There are three schools of legal thought on the questions of whether states can prosecute residents for acts committed out of state, according to Cohen, Donley and Rebouché.
First, there are legal scholars who believe that there is a clear constitutional right to travel. Seth Kreimer, a law professor at the University of Pennsylvania Law School, argues that a goal of the framers of the Constitution was “establishing a single national identity,” and they aimed to do so through the Commerce Clause, the Privileges and Immunities Clause and, later, the Citizenship Clause of the 14th Amendment.
“[C]itizens who reside in each of the states of the Union have the right to travel to any of the other states in order to follow their consciences, and they are entitled to do so within the frameworks of law and morality that those sister states provide,” Kreimer concluded.
Second are the legal scholars who look at the same history and case law and come to the opposite conclusion: States can charge residents for acts committed in other states. For example, Mark Rosen, law professor at Chicago-Kent School of Law, claims that “states have extensive presumptive powers to regulate their citizens’ out-of-state activities under contemporary Due Process doctrine.”
The third school of thought states that “this question would be a difficult one that is not clearly resolved,” according to Harvard Law School professor Richard Fallon. Cohen, Donley and Rebouché find this line of reasoning “a better prediction of what the future holds.” That is because this area of constitutional law remains either “underdeveloped,” “neglected” or “ripe for bitter dispute.”
If the court allowed states to reach across their borders to prosecute abortion-related state crimes, there could be consequences for other areas of the law where states differ, including prostitution, gambling and drug sales.
This legal uncertainty is already having an effect in states where abortion is already illegal or may be soon.
In Utah, where the state’s abortion ban is on hold due to a court challenge, some local abortion providers and advocates held off on referring patients to out-of-state clinics out of uncertainty over whether they could be prosecuted.
“We do not know what jeopardy a Planned Parenthood staff person might be in” if they directly help someone get an abortion in another state, Karrie Galloway, president of Planned Parenthood Action Council of Utah, told HuffPost soon after the Dobbs decision came down.
The state’s Planned Parenthood organization consulted with criminal lawyers, Galloway said, to determine whether they could face prosecution for giving information about out-of-state abortion clinics to patients.
Montana Planned Parenthood affiliates have instituted a new policy to check proof of residency for patients seeking medication used for abortion out of fear that the law in South Dakota could lead to prosecution of a Montana provider if a South Dakotan takes the medication in South Dakota.
Providers across the country are asking similar questions and “calling their lawyers before acting because everything is so unclear,” Nash said.
What is clear is that the attack on the freedom to travel between states is just beginning.