Conservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans.
The Thomas More Society, a conservative public interest law firm, has worked with red-state lawmakers to draft model legislation regulating interstate travel for abortions that would employ the civil enforcement mechanism that propped up Texas’s six-week abortion ban, the Washington Post reported. The bills would target anyone seen to be aiding and abetting interstate travel for abortion services. Private citizens who suspect someone of assisting in the procurement of an abortion would be authorized to sue that person, and the state would award a $10,000 “bounty” for successful lawsuits.
WHERE LEGAL CHALLENGES TO RED-STATE ABORTION RESTRICTIONS STAND
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”
The National Association of Christian Lawmakers, an anti-abortion organization led by red-state lawmakers, has also begun working with the authors of Texas’s abortion ban to come up with model legislation aimed at impeding travel for abortion to states without bans.
The Texas Heartbeat Act, or SB8, withstood legal challenges last year, with the Supreme Court declining to intervene to stop it. It relies on civil litigation in order to be enforced, meaning abortion activists and healthcare providers have no government entity to challenge in court.
Interstate travel is poised to become an increasingly contentious legal issue as anti-abortion activists look to the next step in their fight against legal abortion now that Roe v. Wade has been overturned. Several blue states, such as Connecticut, California, and Massachusetts, are countering laws like SB8 by directing their state courts not to cooperate with red states that launch investigations into providers in pro-abortion rights states who perform abortions on their citizens.
Lawmakers in Missouri earlier this year began a legislative effort to keep women from traveling out of state for abortions and to permit any citizen to sue anyone in a blue state who helped a woman attain one. State Rep. Mary Elizabeth Coleman, who backed the measure, meant to prevent women from crossing the Mississippi River to obtain an abortion at a Planned Parenthood clinic in Illinois that was opened near the border in 2019 to provide abortions for women in Missouri, which has much stricter laws.
The legislation was not adopted during the most recent legislative session, though it has become a model for proposals in other Republican-led states. Coleman told the Washington Examiner earlier this year that she was not “trying to in any way regulate the laws of other states.”
Efforts to curtail interstate travel for abortion have drawn comparisons from legal experts to the legal maneuvering among states in the 19th century that led to the enactment in 1850 of the Fugitive Slave Act. It passed in response to free-state laws meant to provide safe harbor to slaves who escaped from southern states and required that slaves be recaptured and returned to slave states. The antebellum law put people in free states at risk of being arrested for helping enslaved people, fomenting resentment that led to the Civil War.
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State efforts to restrict interstate travel have a murky legal future. In his concurrence with the majority opinion in the Supreme Court’s ruling last week in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh said there is a constitutional right to move freely between states.
“For example, may a State bar a resident of that State from traveling to another State to obtain an abortion?” Kavanaugh wrote. “In my view, the answer is no based on the constitutional right to interstate travel.”
