How Red States Plan to Reach Beyond Their Borders and Outlaw Abortion in America [View all]

[RandySF]

Today’s anti-abortion movement has even proposed new laws that prevent people from crossing state lines to terminate a pregnancy. Republicans in Missouri are considering such legislation right now. Under the statute, Missouri’s citizens could sue doctors who perform an abortion on a Missouri resident in a different state—like neighboring Illinois, whose clinics serve countless Missourians. Missouri’s citizens could also sue anyone who facilitated the abortion, including the friend or family member who transported the patient across state lines. Similarly, in 2019, Georgia Republicans passed a sweeping law that appeared to impose criminal penalties on patients who traveled out of state for an abortion. The courts have put that law on hold, but the state may commence enforcement after Roe is overturned.

Is any of this legal? There is no way to say. The Supreme Court has never addressed whether states can bar their residents from traveling to another state to obtain a medical procedure, or punish out-of-state physicians who perform that procedure. When the Supreme Court refused to halt Texas’ S.B. 8 this fall, it signaled to other states that it would not halt creative schemes to nullify Roe. In December, during oral arguments in a case designed to overturn Roe, several justices all but announced that they will let states regulate abortion however they wish.

Jessie Hill, a professor at Case Western Reserve University School of Law, told me that “these sorts of attempts by states to regulate activity beyond their borders seem to directly contradict our most basic understandings about federalism and U.S. citizenship.” But, she added, “states are not always forbidden to regulate in ways that have an extraterritorial effect.” They may “have a strong argument that they are entitled to enforce their laws with respect to their own citizens.”

Here’s where the new goals of the anti-abortion movement matter most. If fetuses are legal “citizens,” then states could argue that they must be protected from out-of-state abortion providers. A red state might order a blue state to extradite an abortion provider (or patient) within its borders, dragging the judiciary into “complex, uncharted territory.” Or a red state could threaten to prosecute any provider who stepped inside its borders. Hill also pointed out that the Constitution also requires states to give “full faith and credit” to the judgments of other states’ courts. So if a Missouri court orders an Illinois doctor to pay damages for terminating a fetus from Missouri, the Illinois courts are, in theory, obligated to make him pay up.



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