It sounds so simple, idealistic even. Roe v. Wade and its descendants, writes Justice Samuel Alito in his leaked draft opinion, have not “ended debate over the issue of a constitutional right to obtain an abortion,” and for that reason and others, “must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” In the December oral argument for the Mississippi case that will apparently be the vehicle for eviscerating the constitutional right to abortion, Justice Brett Kavanaugh remarked airily of putting America’s uteruses to a vote: “There will be different answers in Mississippi and New York, different in California or Alabama.”
Put aside for a moment how deceptive this view of the democratic process is, coming from a Court committed to shredding voting rights and regulations on money in politics. Yes, it is true that legislators in Mississippi and California have gone in opposite directions on abortion. But the notion that deferring to each legislature will somehow resolve the national conflict has already been disproven.
“They are not going to be satisfied with staying within their states’ borders,” Drexel law professor David Cohen told me of lawmakers.
Red-state legislators and anti-abortion activists aren’t idiots; they know abortion patients have already been fleeing their states to end pregnancies, when they aren’t ordering pills online to do it outside the bounds of existing law. Texas provides a prophecy. After the Supreme Court allowed Texas to ban abortion at six weeks last fall, nearly half of abortion patients are estimated to have gone to Oklahoma, which just followed in Texas’s footsteps with its own six-week ban and is expected to ban all abortions as soon as it’s official from the Supreme Court. Many other patients went to New Mexico or Colorado, or even farther.
“We have people going to Maryland, Boston, Chicago, Oregon, California,” Kamyon Conner, executive director of Texas Equal Access Fund, told me. “People go where they have family members, a support system, or wherever the plane ticket is cheapest.” Neighboring states’ clinics were already so slammed, Amy Hagstrom Miller, the president of Whole Woman’s Health, which operates four clinics in Texas, said that her team found it’s actually easier to help patients go farther, but sooner, for their abortions by referring them to her other clinics in blue states. “We could see them faster in Alexandria, [Virginia], or Minneapolis,” she said.
In March, anticipating the very decision that Alito drafted, a Missouri lawmaker introduced an amendment that copies Texas’s bounty-hunter law to allow private citizens to sue people who help abortion patients leave the state. In recent years, thousands of Missourians have already been crossing the border to Illinois for abortions, many more than have been able to be seen by the state’s last remaining clinic. The provision didn’t succeed this time around, but its author, state Representative Mary Elizabeth Coleman, wasn’t wrong when she responded to claims the provision was unconstitutional by telling the Washington Post, “That’s what they said about the Texas law, and every bill passed to protect the unborn for the last 49 years.” It’s only unconstitutional until you get the right court.
In a forthcoming paper, Cohen and co-authors Greer Donley and Rachel Rebouché argue chillingly that the governing law is by no means settled. “The Constitution’s general prohibition of state restrictions on interstate travel, burdens on interstate commerce, or application of a state’s law outside its borders should make it difficult for antiabortion states to enforce these laws,” they write. “Yet, these constitutional defenses are underdeveloped and subject to debate, leaving federal courts as the ultimate arbiters of these interjurisdictional battles.”
The morning after the draft leaked, Donley told me that the opinion “implies that an abortion right that’s based in states and is not a federal right is going to be easy to understand. But the Court has no understanding that a post-Roe world is going to be one where jurisdictions fight each other. There will be novel questions,” she said. “There are going to be a few states who will try to fund abortion travel and try to protect abortion providers from out-of-state lawsuits, like California, Connecticut, maybe New York. But if in a state like Missouri, a zealous prosecutor goes after an Illinois provider who has been providing abortions on their citizens, the courts are going to have to figure out: Can a state do that if the provider is completely following Illinois law?”
There is grim precedent for states trying to criminalize the conduct of their residents beyond their borders. New York University law professor Melissa Murray points out that when Virginia prosecuted Mildred and Richard Loving for violating its 1924 Racial Integrity Act by marrying in the District of Columbia, the couple was also subject to a provision that “not only prohibited interracial marriages, it also made it a crime to leave the state for those purposes.” The Supreme Court struck that down in the landmark 1967 case Loving v. Virginia, but at least one U.S. senator freely admitted that such a decision was in conflict with his approach to states’ rights as recently as this March, before backtracking under pressure. “When you want that diversity to shine within our federal system, there are going to be rules and proceedings, they’re going to be out of sync with maybe what other states would do,” Indiana senator Mike Braun told reporters when asked specifically about Loving. “It’s the beauty of the system, and that’s where the differences among points of view in our 50 states ought to express themselves.”
In the abortion realm, minors have been the canary in the coal mine for restrictions on interstate travel. “Minors are the easier target,” said Rebouché, because courts have already agreed that their rights, including the right to travel, can be restricted or balanced through laws that require notifying or getting permission for an abortion from a guardian or a judge. In 1996, a Pennsylvania woman was prosecuted for taking a 13-year-old to New York to have an abortion to get around Pennsylvania’s parental-notification law. In Missouri in 2007, Planned Parenthood challenged a law enforcing parental consent that seemingly required Missouri minors to follow that state’s laws even if they were having an abortion in a state that didn’t require parental involvement. The state’s Supreme Court found that the law “does not create an undue burden, nor does it violate the right to travel.”
On the federal level, Republicans have repeatedly introduced a law that would “make it a crime to knowingly transport a minor across a state line to obtain an abortion without satisfying a parental involvement law in the minor’s resident state.” Those parental-involvement laws were crafted as a Roe-era compromise; without those guardrails, anything is possible.
It’s an open question how abortion travel could be restricted, given the porousness of state borders, but Missouri provided a hint when its state health director testified in the fall of 2019 that he’d compiled a spreadsheet of Planned Parenthood patients’ last menstrual periods, purportedly to track whether they had complications. Such detailed tracking of pregnancies has been used in countries like China and Poland to track if women are defying restrictions on whether and when they can be pregnant or not.
Blue states have tools too, and some are moving to use them. Connecticut has led the way with a law, expected to be signed by the governor imminently, that would protect providers from lawsuits that target them for performing an abortion on a resident of another state, and allow them to decline to give up medical records or other evidence of such abortions. On Tuesday, lawmakers in New York introduced a similar bill that also encompassed gender-affirming health care. But for such laws to be used, abortion patients have to be willing to brave a potential future where their movements will be scrutinized for litigation or criminalization. Said Donley, “These laws may have a chilling effect more than anything else.”
More on life after roe
- Outrage, Uncertainty, and Instant Abortion Bans After Roe v. Wade Overturned
- The Dissenters Say You’re Not Hysterical
- John Roberts Had a Vague Plan to Only Half-Kill Abortion Rights