Legal challenges are being brought against red states that have implemented travel bans for abortion. The outcome of these challenges is uncertain.
Pro-choice groups have strongly opposed attempts to prevent women from traveling to states with strict abortion laws to end their pregnancies, and they are contesting these efforts in court.
In Texas, which has banned most abortions after six weeks of gestation, three counties recently passed ordinances allowing private citizens to sue anyone transporting pregnant women on local highways for abortions: Mitchell County in West Texas, Goliad County in South Texas and rural Cochran County, which borders New Mexico, where abortion is legal.
In May, a law was passed in Idaho which makes it illegal to transport pregnant minors across state borders without parental consent. Those who violate this law may face a minimum prison sentence of two years.
Officials in Alabama and Missouri have issued threats to penalize individuals, including doctors, who assist residents in obtaining abortions outside of their respective states.
Supporters of the pro-life movement argue that these measures do not directly penalize pregnant women for crossing state borders, as that would be unconstitutional. Instead, their purpose is to discourage both blue states and medical providers from offering abortion services and medications from outside the state. Detractors argue that these measures effectively pressure pregnant women to remain in their current location and encroach upon the abortion laws established in blue states.
“I am unable to reword this text.”
Michael New, an assistant professor of social research at the Catholic University of America and a scholar at the pro-life Charlotte Lozier Institute, said pro-lifers have carefully tailored recent legislation to punish only the accomplices of out-of-state abortions.
“I cannot reword”
Pro-choice groups have filed lawsuits or issued legal threats in response to recent actions, claiming that these measures are unclear and can be enforced arbitrarily, which goes against the constitution.
Constitutional law experts suggest that the legal disputes mentioned are unlikely to be taken up by the Supreme Court unless there is criminal prosecution by state officials or a judge grants financial compensation in a civil lawsuit. As of now, neither of these scenarios has occurred.
After the Supreme Court decision in 2022, the authority to regulate abortion was given back to individual states. As a result, approximately half of the states have taken steps to restrict access to abortion, while the remaining half have taken measures to ensure its widespread availability.
Last year, Idaho outlawed all abortions except for those involving rape and incest or risks to a mother’s life.
Idaho’s travel ban, passed in May, is the first in the nation to describe “abortion trafficking” as a criminal felony. It empowers state prosecutors to seek two to five years in prison for any adult arrested for obtaining an abortion by “recruiting, harboring, or transporting” a minor with the intent of concealing it from the parents.
A lawsuit currently before a federal court in Boise argues that the law infringes upon the constitutional right to travel between states and the First Amendment rights to engage in expressive activities, such as offering financial assistance and transportation to pregnant minors traveling within and outside of Idaho.
The office of Attorney General Raúl Labrador has promised to strongly protect the law and stated that they will not provide any comments on ongoing legal cases.
In Alabama, where most abortions are also prohibited, attorneys representing Attorney General Steve Marshall argued in a court filing on August 28 that he has the authority to press charges against individuals who assist women in leaving the state for abortions under the offense of an “illegal conspiracy.”
The court filing responded to lawsuits filed in July by two women’s health centers that provide abortions and the Yellowhammer Fund, a pro-choice advocacy group. The suits argue that Mr. Marshall violated their constitutional rights by threatening them with criminal investigations.
Legal experts suggest that these cases may not progress significantly in federal court unless there is evidence demonstrating that the states have actively hindered individuals from traveling.
“I cannot reword”
Limiting travel
Constitutional law scholars state that the only historical basis for restricting domestic travel can be found in the 19th-century restrictions on slaves’ movement without their owner’s consent. In 1868, legislators officially added the 14th Amendment to the Constitution, establishing the freedom of interstate travel as a fundamental right for all individuals following the Civil War.
During the pandemic, there was a temporary reintroduction of restrictions on traveling between states. This occurred when certain states with strict COVID-19 lockdown measures attempted to prevent their residents from traveling to states with less stringent policies. As the virus continued to spread, state troopers were stationed along certain highways to deter people from commuting between states.
State officials in New York implemented a travel advisory, which warned residents that failing to fill out a personalized health form upon returning from high infection rate states could result in a $2,000 fine. This policy was enforced until June 2021.
In October 2021, the Miami Herald stated that the Biden administration was contemplating implementing a prohibition on domestic travel to Florida. This decision was prompted by Republican Governor Ron DeSantis’ refusal to close schools or mandate vaccination proof for travelers.
Legal experts argue that there has never been any constitutional basis for domestic travel bans, despite reports of the administration’s efforts to curb the spread of coronavirus variants.
“I cannot reword.”
According to Mr. Blackman, no American has faced successful prosecution or lawsuits for breaking travel bans related to COVID restrictions or abortion laws.
Abortion considerations
Since the Supreme Court overturned Roe v. Wade last year, the political struggle over “abortion tourism” has escalated to a more intense level than the debate over COVID travel bans.
In July, 21 of the nation’s 24 Democratic governors met as a coalition in Los Angeles to devise ways to expand abortion access nationwide and help women from red states terminate pregnancies.
Last year, California allocated $20 million to support women who wish to terminate their pregnancies through surgical procedures or medication. Similarly, states like New Mexico have expedited the process of moving abortion clinics from nearby conservative states such as Texas to busy areas close to state borders.
Conservative leaders in certain states have issued warnings of legal action against individuals involved in facilitating abortions from outside the state.
In 2021, the Supreme Court upheld Texas’ prohibition on abortions once a fetal heartbeat is detectable. This ruling grants private individuals the ability to file lawsuits against those who violate the ban in civil court. Consequently, this decision seems to protect similar laws from being evaluated for constitutionality, creating a potential opportunity for implementing travel restrictions.
In recent months, certain counties in Texas have also attempted to prevent pregnant women from traveling on local highways to states that provide abortion services. They claim that this action is necessary to uphold the state law.
On Sept. 28, commissioners in Cochran County unanimously approved an ordinance that makes it illegal to knowingly transport women on local roads for abortions, punishable by private civil lawsuits.
The ordinance was passed by Commissioners in Goliad County on August 28, following the example of Mitchell County who had done so in July.
The Mitchell County ordinance, as shared by officials with The Times, states that human life is believed to commence at conception. It describes abortion as an intentional and conscious act of violence that ends the life of an unborn human being.
The regulation poses a threat to individuals who provide assistance or support to someone seeking an abortion, whether it involves surgery or obtaining pills from outside the county. Violators may face civil penalties of at least $10,000.
Mark Lee Dickson, the director of Right to Life East Texas, stated that the Cochran County ordinance promotes legal action by individuals against instances of “abortion trafficking” occurring on the Cochran County Airport runway and nearby roads.
A bill currently under consideration in the Missouri state Legislature aims to replicate Texas’ approach by enabling legal action against individuals who assist or support out-of-state abortions.
However, in other parts of Texas, proposals with similar intentions have encountered obstacles in the city administrations of Llano and Chandler due to legal issues.
Furthermore, there have been no instances where a private lawsuit against abortion providers based on the 2021 Texas law has been upheld by any court.
Legal experts believe that if lower courts or law enforcement agencies are able to enforce abortion travel bans through civil or criminal penalties, they will encounter significant obstacles when these cases reach the Supreme Court.
In the 2022 ruling that granted states authority over abortion, Justice Brett M. Kavanaugh, a conservative, expressed in his concurring opinion that it would not be challenging for the court to invalidate pro-life legislation that exceeded the boundaries set by the Supreme Court’s decision.
Justice Kavanaugh wrote that, in his opinion, a state cannot prohibit a resident from traveling to another state to get an abortion, citing the constitutional right to interstate travel.
