Supreme Court Justice Brett Kavanaugh in December, during oral arguments over the case that shook the nation in recent weeks as one poised to overturn Roe v. Wade, questioned why the issue of abortion shouldn’t be left up to states.
“There will be different answers in Mississippi and New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently,” Kavanaugh said.
Justice Samuel Alito struck a stronger tone with a similar message when he argued in a leaked draft opinion that would eviscerate the landmark ruling that Roe “effectively struck down the abortion laws of every single state” and “sparked a national controversy that has embittered our political culture for a half-century.”
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So as the nation looks toward a post-Roe future perhaps just weeks away, states are expected to make, or have made, their position known.
But the patchwork of states Kavanaugh described, and Alito seemed to advocate that the nation revert to, may also become far more complex, spurred by a debate over just how far states can go to regulate the procedure – even beyond their borders.
Just as quickly as states are gearing up to ban abortion without Roe, other states are making efforts to keep the procedure accessible as they anticipate an influx of patients from elsewhere seeking abortion, while some companies pledge to fund their employees’ travel. And with that movement between states comes a complicated legal landscape – with places like California, Connecticut, New Jersey and Washington taking actions in recent weeks to prepare for what they likely expect is the next move for states looking to aggressively curb abortion rights: remedying a travel “loophole.”
Lawmakers and anti-abortion advocates have acknowledged that traveling out of state for abortions may thwart their efforts to eliminate the procedure.
“If your neighboring state doesn’t have pro-life protections, it minimizes the ability to protect the unborn in your state,” Mary Elizabeth Coleman, the sponsor of a Missouri rule that would ban the procedure within – and beyond – told The Washington Post.
The unusual legislative proposal in Missouri, which surfaced earlier this year and has since been shelved, aimed to prevent its citizens from seeking an abortion – even across state lines – and kicked off a debate that has appeared to take on new urgency in the aftermath of a leaked Supreme Court draft opinion that suggested that the high court is poised to overturn Roe.
But even before the draft ruling surfaced, rules like Missouri’s were expected to be the “ground zero of the legal battles after Dobbs,” the Mississippi case at issue, according to Rachel Rebouché, the interim dean of Temple University’s law school and an expert in reproductive law, with some states seeking to enforce their rules beyond their jurisdictions while others work to proactively prevent states like Missouri from exercising their abortion policy beyond. And although the Missouri proposal was blocked, that doesn’t keep other states from trying to replicate it.
Using a Texas-style mechanism, deputizing private citizens as its enforcer, the proposal states that “it shall be unlawful for any person to perform or induce, or to attempt to perform or induce, an abortion on a resident or citizen of Missouri … regardless of where the abortion is or will be performed.”
It immediately drew questions over its constitutionality.
“Lots of Americans every day, all the time, cross borders, to avail themselves to services that they cannot get where they live,” Rebouché says. “So people drive across state lines to gamble, they drive other places to buy alcohol on Sundays. You can think of a lot of those examples. And so what’s interesting about these laws is they really do threaten what is a shred of rights that all of us take for granted – that if I live in Mississippi and I want to drive to Georgia, that I’m not going to be prosecuted for the things I do in Georgia so long as they’re legal in Georgia.”
Legal analysts have drawn comparisons to marijuana laws, which vary between states yet illustrate that a resident of a state where the substance is not legal may use the substance in another state where it is legal, without implications in their home state. Others have made an analogy to the Fugitive Slave Acts, where even free states were required to return slaves to their jurisdiction after they had fled.
A more direct comparison can be made to a 15-year-old Missouri rule for minors, which created a civil cause of action against anyone who helped a Missouri minor obtain an abortion out of state without a parent or judge’s approval. The state Supreme Court struck down the rule in 2007, finding that “it is beyond Missouri’s authority to regulate conduct that occurs wholly outside of Missouri,” adding that “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect,” asserting that the law was only valid within the context of conduct occurring within Missouri.
Even so, precedent only goes so far in this case because the decision is only applicable in Missouri and does not guarantee how the high court could rule, should it weigh in on the topic.
The Missouri decision relied on a 1975 U.S. Supreme Court decision, Bigelow v. Virginia, which concerned an advertisement in a Virginia newspaper for a New York abortion service, where the procedure had recently become legal. A Virginia statute prohibited any publication from encouraging women to get an abortion. But the high court found that the statute violated First Amendment rights and published statements that cast doubt on one state’s ability to regulate their residents’ behavior in another state, according to a recent article by Rebouché and her co-authors David Cohen, a law professor at Drexel University, and Greer Donley, a law professor at the University of Pittsburgh.
The justices wrote that Virginia could neither “prevent its residents from traveling to New York to obtain those services,” meaning abortion, or “prosecute them for going there.”
“A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State,” the justices wrote.
Still, political observers anticipate that states will continue to try to regulate abortion beyond their borders. And as they do so, the focus of their punishment may begin to shift.
“The question of whether to punish people for having abortions will likely heat up as states struggle to punish out-of-state providers,” Mary Ziegler, a visiting professor at Harvard Law School and a legal historian, wrote in a tweet last week, noting that the anti-abortion movement generally has been reluctant to do so in the past, but limitations on the ability to punish providers out of state may make abortion-seekers the new target.
In recent weeks, a bill in Louisiana threatened to do just that, taking it as far as making abortion homicide, allowing patients to be criminally charged by prosecutors.
That Louisiana bill was ultimately gutted by fellow Republicans, who signaled that there isn’t a political will to take such drastic measures – at least not yet.
But the passage of such a rule would mark a major shift in the anti-abortion movement, as would one that bans abortion beyond a state’s jurisdiction – likely extending what has threatened to become a patchwork of states with varying abortion access to a national landscape that could limit abortion further than in the conservative states already poised to ban the procedure. In the likely forthcoming post-Roe world, states where abortion remains legal would not be immune to the advances of those who seek to limit abortion.
“The endgame for Missouri is not just to ban abortion in Missouri. The people writing these bills want to ban abortion everywhere.” Rebouché says. “But there are going to be places like California that continue to offer abortion and try to proactively protect their providers and patients. And so the idea of these laws is to try to reach into those states and shield travel to states in which abortion will remain legal.”
Ahead of the expected Supreme Court decision to overturn Roe, some states have already enacted legislation that would prevent legal action against people who seek to end their pregnancies or those who help them. Washington’s governor in March signed legislation that prohibits any penalties for people seeking an abortion or those assisting them. And Connecticut’s governor this month signed a bill designed to shield against recent attempts to restrict abortion in Republican-led states, like Texas’ SB 8 and its private citizen enforcement mechanism and Missouri’s proposal to extend that beyond state lines, by protecting people who get an abortion in the state, including visitors, from legal action in other states, along with protecting providers.
Meanwhile, New Jersey lawmakers are considering a bill that would block enforcement of other states’ laws being imposed upon its residents. California is likewise considering a bill that would prohibit the state from “compelling a person to identify or provide information that would identify an individual who has sought or obtained an abortion.” And last week, Gov. Gavin Newsom announced a package of abortion protections, including a proposal incentivizing businesses to relocate to California or otherwise increase their presence in the state, relocating from states with anti-abortion and anti-LGBTQ laws.
Companies have been announcing moves to mitigate the blow of abortion restrictions in red states as well. Just before the leaked Supreme Court opinion, Amazon notified employees it will reimburse them up to $4,000 annually if they have to travel for elective surgeries, including abortions. The CEO of dating site Match, which also owns Tinder, said in September following passage of Texas’ abortion law that she would make funds available to company staff affected by the rule. Yelp and Citigroup have also committed to providing similar benefits to employees who may be forced to travel out of state to secure an abortion, while Levi Strauss, Apple, Microsoft and HP have announced abortion benefits. On Monday, Starbucks became the latest company to do the same.
Although companies may engender backlash for the moves or be considered aiders or abettors of abortion, states will likely have to grapple with the potential fallout of lost business if they pursue legal action against the employers.
Nevertheless, the ability to travel freely to other states – and the differing laws between them – will likely be exacerbated by further limits on abortion. And experts say resolving the legal disputes that arise out of the differences will be complex.
“How those disputes will be resolved – whether what the red state would be doing would be constitutional is unclear, which state’s law would apply in those circumstances is unclear,” Ziegler said on the Bloomberg Law podcast. “And the great irony of it all, of course, is that if that’s contested, it’s going to end right back up in the Supreme Court, which in this draft is telling us that things are going to become much more peaceful when the court gets out of the abortion business and this goes back to the states.”