Legal experts say no prior cases are exactly comparable to current conflicts
By Geoff Mulvihill and John Hanna
Associated Press
Abortion is banned in Idaho at all stages of pregnancy, but the governor on Wednesday signed another law making it illegal to provide help within the state’s boundaries to minors seeking an abortion without parental consent.
The new law is obviously aimed at abortions obtained in other states, but it’s written to criminalize in-state behavior leading to the out-of-state procedure – a clear nod to the uncertainty surrounding efforts by lawmakers in at least half a dozen states to extend their influence outside their borders when it comes to abortion law.
At the same time, Democrat-controlled states are advancing and adopting laws and executive orders intended to shield their residents against civil lawsuits and criminal investigations related to providing abortions for women from states where there are bans.
But there is no legal precedent giving good guidance about whether states can influence their residents getting abortions outside their borders.
“If red states pass laws saying, ‘We can go after people for X, Y and Z,’ and blue states say, ‘You can’t,’ we’re in uncharted territory,” said Mary Ziegler, a legal historian at the University of California, Davis School of Law.
Arguments about the laws could be rooted in key clauses of the U.S. Constitution that could contradict each other in this case. One clause requires states to respect the laws of other states while another recognizes the right to travel among states and a third restricts the ability of states to impair interstate commerce.
Legal experts say that no prior cases are exactly comparable, though state laws have conflicted in weighty ways in the past.
In the 1840s and 1850s, it was with questions over whether fugitive enslaved people in free states remained the property of slaveholders. In the 1857 Dred Scott decision, frequently cited as the worst ruling in U.S. history, the U.S. Supreme Court ruled that they did.
More recently, before the nation’s top court recognized a right to same-sex marriage in 2015, state marriage laws were a patchwork. Some states did not recognize marriages that were legal elsewhere, and all the protections that go with them, including hospital visitation rights and even the ability to divorce. The federal ruling largely resolved those legal conflicts.
The effort to restrict abortion in far-reaching ways is an outgrowth of last year’s U.S. Supreme Court decision that overturned Roe v. Wade and ended a nationwide right to abortion.
Each state now makes its own rules. Abortion is banned in all stages of pregnancy in 13 states. Another five have similar bans on the books but are not being enforced under judge’s orders as legal challenges to them are sorted out.
Texas took a step toward state-border restrictions even before Roe was overturned with a 2021 law that allows civil lawsuits against a person who “aids or abets the performance or inducement of abortion.” It does not specify whether the aid would have to happen within Texas. Oklahoma has a similar law.
But using them to block out-of-state abortions has not been tried yet — or tested in court.
Other states are pursuing different approaches.
Idaho’s measure bans transporting a minor for an abortion without parental consent — but bars only the part of the journey that takes place in Idaho.
Tennessee’s GOP-dominated legislature last week approved a measure that would prohibit cities and counties from using their funds to help someone obtain an abortion outside the state — including banning coverage of out-of-state abortions under government employee health insurance plans.
In his concurring opinion in last year’s ruling overturning Roe, Supreme Court Justice Brett Kavanaugh contemplated whether states could restrict their residents from getting abortions in other states: “In my view, the answer is no based on the constitutional right to interstate travel,” he wrote.
Andrea Miller, president of the National Institute for Reproductive Health, which supports abortion rights, said the validity of interstate laws is unclear.
“The hope would be this would be seen as an extreme overreach,” she said, “but one would have thought that overturning Roe v. Wade would have been an extreme overreach too.”
Elisabeth Smith, state policy director for the Center for Reproductive Rights, said the measures have impacts even if they don’t hold up in court.
“Will anti-abortion activists continue to try to use these techniques and use these avenues?” he asked. “Absolutely. Their goal in doing so is to try to chill activity and make those of us who support abortion rights too frightened to help people.”
One possible test of the out-of-state applicability of abortion laws is just getting started in Texas.
The former husband of a Galveston-area woman who terminated a pregnancy last year with medication sued three women who helped her obtain pills, claiming wrongful death. The lawsuit says the woman terminated the pregnancy in July 2022 and the couple divorced in February.
A lawyer representing the ex-husband is Jonathan Mitchell, a former Texas solicitor general who is the architect of the law that uses civil penalties to enforce an abortion ban. As part of the suit, Mitchell sent a letter to the National Latina Institute for Reproductive Justice in New York City, demanding that it preserve documents. The letter said one of the women helping the ex-wife obtain abortion pills worked for the group and the organization would face questions about whether she was acting as part of her job.
“If anyone out-of-state helps one of their employees break Texas laws, then you better believe that there can be action taken against that, against that company or organization,” said Mark Lee Dickson, a Texas anti-abortion activist who has pushed successfully for local governments to bar abortion clinics. “If an individual assists Texans in breaking the laws of Texas, then that’s a problem, too.”
