Efforts to prevent women from leaving abortion-restrictive states to terminate their pregnancies have provoked fierce court challenges from pro-choice groups.
In Texas, which has banned most abortions after six weeks of gestation, three counties have enacted ordinances allowing private citizens to sue anyone transporting women on local highways for abortions. They are Mitchell County in western Texas, Goliad County in southern Texas and rural Cochran County on the border with New Mexico, where abortion is legal.
In May, Idaho enacted a law forbidding anyone from transporting pregnant minors across state lines for abortions without parental permission. Violations are punishable by a minimum of two years in prison.
Alabama and Missouri officials have threatened to punish anyone, including physicians, for helping residents obtain abortions in other states.
Pro-life advocates say such measures do not punish pregnant women directly, which would violate the Constitution, but aim to deter doctors from providing out-of-state abortion pills and surgeries in states where they are legal. Critics say the laws intimidate pregnant women and infringe on the abortion laws of other states.
“They don’t actually ban travel, but they have that effect,” Mary Ziegler, a law professor at the University of California, Davis, and a leading historian of the abortion debate, told The Washington Times. “Beyond that, the concern is about one state attempting to project its laws across state lines to tell another what to do.”
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-life advocates have carefully tailored legislation to punish only the accomplices of out-of-state abortions.
“The better political and legal framing of this issue would be to focus on preventing women from obtaining abortions from out-of-state doctors,” Mr. New told The Times. “Travel bans sound restrictive and punitive to many.”
The recent efforts have prompted lawsuits or threats of legal action from pro-choice groups that argue such measures are unconstitutionally vague and subject to arbitrary enforcement.
Constitutional law scholars say those legal battles are unlikely to reach the Supreme Court unless a state criminally prosecutes a violator or a judge awards monetary damages in a civil lawsuit. So far, neither has happened.
Since the Supreme Court returned abortion jurisdiction to the states last year, about half the states have moved to limit the procedure and the other half have moved to make it widely available.
Last year, Idaho outlawed all abortions except those involving rape or incest or to save a mother’s life.
Idaho enacted its travel ban in May. It is the first in the nation to describe “abortion trafficking” as a criminal felony. The law empowers state prosecutors to seek two to five years in prison for any adult convicted of “recruiting, harboring, or transporting” a minor to conceal an abortion from the girl’s parents.
A lawsuit pending in a federal court in Boise says the law violates the constitutional right to interstate travel and First Amendment rights to “engage in expressive conduct, including providing monies and transportation (and other support) for pregnant minors traveling within and outside of Idaho.”
The office of Attorney General Raul Labrador pledged to “vigorously defend” the statute and said it does not comment on pending litigation.
In Alabama, which also has outlawed most abortions, legal counsel for Attorney General Steve Marshall said in an Aug. 28 court filing that he could prosecute anyone helping women leave the state for abortions on the criminal charge of “illegal conspiracy.”
The court filing responded to lawsuits filed in July by two women’s health care centers that provide abortions and the Yellowhammer Fund, a pro-choice advocacy group. The lawsuits argue that Mr. Marshall violated their constitutional rights by threatening them with criminal investigations.
Legal scholars say the cases may not go far in federal court without proof that the states have prevented travel.
“They can’t really be challenged in court until they are enforced, and until then, they may dissuade some mothers from seeking to abort their children,” said Ronald J. Rychlak, a professor of law and government at the University of Mississippi School of Law. “That may be the real intent of the legislation.”
Limiting travel
According to constitutional law scholars, the only legal precedents for limiting domestic travel are 19th-century bans on slaves traveling without their masters’ permission. In 1868, in the aftermath of the Civil War, lawmakers ratified the 14th Amendment to the Constitution, enshrining the freedom of interstate travel as a fundamental right for all citizens.
Bans on interstate travel briefly resurfaced during the pandemic when some states with sweeping COVID-19 lockdowns tried to stop residents from traveling to states with less restrictive policies. As COVID-19 spread, state troopers lined some highways to repel interstate commuters.
In New York, state officials issued a travel advisory threatening a $2,000 fine for residents returning from states with high infection rates without completing a personalized health form. The policy remained in effect until June 2021.
In October 2021, the Miami Herald reported that the Biden administration was considering a domestic ban on travel to Florida, where Gov. Ron DeSantis, a Republican, refused to shutter schools or require proof of vaccination as a condition for travel.
Although the administration said it was seeking to prevent the coronavirus from spreading, legal experts say the Constitution grants no authority for domestic travel bans.
“On both the left and right, it’s about virtue-signaling that ‘we’re not only going to protect our people but stop others from behaving the wrong way,’ whatever that happens to be,” Josh Blackman, a constitutional law professor at South Texas College of Law in Houston, told The Times.
No American has been successfully prosecuted or sued for violating a travel ban related to pandemic restrictions or abortion laws, Mr. Blackman noted.
Abortion considerations
Since the Supreme Court overturned Roe v. Wade last year, the political struggle over “abortion tourism” has become more intense than the debate over COVID-19 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 pro-life states.
California approved $20 million last year to bring in women seeking to end their pregnancies via surgery or pills. New Mexico and others have fast-tracked relocations of abortion clinics to highly trafficked areas near the borders of pro-life states such as Texas.
In response, some conservative leaders have threatened civil lawsuits against anyone promoting out-of-state abortions.
In 2021, the Supreme Court upheld Texas’ ban on abortion after a detectable fetal heartbeat, thereby allowing private citizens to sue violators in civil court. That decision appeared to immunize similar laws from constitutional review, opening a loophole for travel restrictions.
Over the past few months, some Texas counties have tried to keep pregnant women from traveling local highways to states offering abortion, citing a need to enforce 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.
Commissioners in Goliad County passed a similar ordinance on Aug. 28. Mitchell County did the same in July.
In a copy of the Mitchell County ordinance that officials shared with The Times, the commissioners asserted that “human life begins at conception” and called abortion “a murderous act of violence that purposefully and knowingly terminates an unborn human life.”
The ordinance threatens anyone who “aids and abets” an abortion through surgery or pills obtained outside the county. The civil penalties are at least $10,000.
The Cochran County ordinance encourages private lawsuits against cases of “abortion trafficking” on the Cochran County Airport runway and local roads, said Mark Lee Dickson, the director of Right to Life of East Texas.
In Missouri, a bill pending in the state legislature would empower similar lawsuits against those who “aid and abet” out-of-state abortions.
Similar proposals elsewhere in Texas have stalled in the city governments of Llano and Chandler because of legal concerns.
No court has upheld a private lawsuit against abortion providers based on the 2021 Texas law.
Legal scholars say abortion travel bans would face steep challenges in the Supreme Court if any lower court or law enforcement agency succeeds at enforcing them through civil or criminal penalties.
In the 2022 decision that returned jurisdiction over abortion to the states, conservative Justice Brett M. Kavanaugh wrote in his concurring opinion that it would not be “especially difficult” for the court to rule against pro-life laws that push the high court’s ruling too far.
“For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel,” Justice Kavanaugh wrote.
• Sean Salai can be reached at ssalai@washingtontimes.com.
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