Anti-abortion lawmakers and activists want to punish care in other states

Right-wing groups and their legislative allies are drafting bills to target providers and people helping patients cross state lines

Alex Woodward
New York
Saturday 16 July 2022 00:23 BST
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On 14 July, Senate Republicans blocked a bill that would ensure a legal shield for abortion patients traveling from states that have outlawed abortion care to states where providers can legally treat them.

The following day, only three Republicans in the US House of Representatives supported a similar bill.

With more than half of US states prepared to outlaw abortion care or severely restrict access, abortion providers in states with legal protections for abortions are bracing for patients traveling from states where their healthcare is criminalised in the wake of Roe v Wade’s collapse.

But anti-abortion lawmakers and model legislation written by anti-abortion lobbyists and right-wing legal groups would allow private citizens to sue anyone who helps a patient leave the state to get abortion care elsewhere – building on recently enacted laws in Oklahoma and Texas that allow residents to sue providers or anyone who allegedly helped patients acess that care.

In Missouri, state lawmakers have considered a measure that would extend those lawsuits to anyone who helps a Missouri patient obtain an abortion out of the state.

A group of Republican state lawmakers in Texas – under their Texas Freedom Caucus – have pledged to introduce legislation that would prohibit employers in the state from helping them pay for their employees’ abortion-related expenses “regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs”.

That provision would “impose felony criminal sanctions on anyone who pays for these abortions to ensure that it remains enforceable against self-insured plans as a generally applicable criminal law,” according to a letter from the group.

Their proposal also would extend the ability of any resident in the state to sue people who helped pay for abortion care – regardless of where the abortion occurs, and the laws of the state in which the abortion was performed.

Two prominent Christian conservative groups – the Thomas More Society and the National Association of Christian Lawmakers – also are crafting similar model legislation for anti-abortion state lawmakers across the US.

“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” the Thomas More Society’s senior counsel Peter Breen told The Washington Post. “It’s not a free abortion card when you drive across the state line.”

Legal analysts have drawn comparisons to the Fugitive Slave Act of 1850, which required states to aid slavers and their bounty hunters capture enslaved people who had escaped to states where slavery was outlawed. Meanwhile, several states passed laws to cooperation and enforcement.

Sara Rosenbaum, a professor of health law and policy at the George Washington University School of Public Health and Health Services, told NBC News that the modern-day parallel is “literally pursuing people across state borders for seeking medical care that is legal.”

“It’s a completely mind-blowing concept,” she said.

Dozens of prosecutors have stated that they will not enforce their states’ restrictive anti-abortion laws, and several states have also passed measures to shield out-of-state patients, providers and the people who help them from legal action in anti-abortion states.

Mississippi’s sole remaining abortion clinic run by Jackson Women’s Health Organization, the group at the centre of the Supreme Court case, was forced to close under new state law.
Mississippi’s sole remaining abortion clinic run by Jackson Women’s Health Organization, the group at the centre of the Supreme Court case, was forced to close under new state law. (AFP via Getty Images)

As noted by The New York Times’ Jamelle Bouie, the US Supreme Court has repeatedly affirmed a right to travel between states in cases dating back as far as the 1860s.

In his concurrence with the decision in Dobbs v Jackson Women’s Health Organization, which struck down the constitutional right to abortion care, conservative Justice Brett Kavanaugh noted that a state cannot “bar a resident of that state from traveling to another state to obtain an abortion.”

The US Constitution’s 14th Amendment prohibits states from “[depriving] any person of life, liberty, or property, without due process of law” – granting so-called “unenumerated” rights, including freedom from government intervention in profoundly intimate medical decisions, that are otherwise not explicitly identified in the Constitution.

Notably, Justice Clarence Thomas, in his own concurrence in the Dobbs case, suggested the court reconsider landmark rulings decided on the 14th Amendment – including ones that determined marriage equality and access to contraception.

Earlier this week, Democratic members of Congress warned that, should the GOP take control of the House and Senate in upcoming elections, Republicans are likely to introduce and pass a federal abortion ban.

Republicans have repeatedly insisted that the Supreme Court’s ruling merely – and correctly – returned the question of whether to legally allow abortions to individual states.

But this week, less than three weeks after the Supreme Court’s decision in Dobbs, House Republicans reintroduced the Heartbeat Protection Act, which would impose a federal abortion ban, outlawing abortions at roughly six weeks of pregnancy – before many people know they are pregnant, typically two weeks after a missed period.

President Joe Biden issued an executive order directing federal agencies to bolster abortion care, including calling on the US Department of Health and Human Services to assemble a corps of volunteer lawyers, private pro bono attorneys and other groups to “encourage robust legal representation of patients, providers, and third parties lawfully seeking or offering reproductive health care services throughout the country” – including patients who are traveling out of state to seek abortion care.

The US Department of Justice has also assembled a Reproductive Rights Task Force, chaired by Associate Attorney General Vanita Gupta, to “monitor and evaluate” anti-abortion laws and whether they infringe on their legal access to care.

“The court abandoned 50 years of precedent and took away the constitutional right to abortion, preventing women all over the country from being able to make critical decisions about our bodies, our health, and our futures,” Ms Gupta said in a statement. “The Justice Department is committed to protecting access to reproductive services.”

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