Can red states regulate abortions performed outside their borders? A post-Roe landscape would test just that

CNN

By Tierney Sneed, CNN

If the Supreme Court reverses its long-standing abortion precedent later this year and lets states ban abortions within their borders, it will unleash a new legal and legislative fight over how far anti-abortion lawmakers can reach to target conduct that happens outside their state lines.

A draft majority opinion published by Politico on Monday suggested the court’s majority was on the cusp of overturning 1973 Roe v. Wade decision. The opinion is not final, and it is possible the vote count will change before a formal opinion is later rolled out, likely by the end of June. In it, Justice Samuel Alito wrote that the “authority to regulate abortion must be returned to the people and their elected representatives.”

At the case’s December hearing, the conservative justices who appeared inclined to join Alito framed a post-Roe landscape as one where states can choose the contours of their abortion policies for themselves.

But legal experts say the reality, if Roe is reversed, will not be that simple.

Already, lawmakers in both red and blue states are beginning to draw new battles lines in expectation of a patchwork system where abortion rights are no longer protected nationwide.

Legislation introduced this year in Missouri is an extreme example of how anti-abortion lawmakers are looking to crack down on abortions that happen beyond their states’ borders.

One measure sought to allow private citizens to sue anyone who helps a Missouri resident obtain an abortion out of state, while also targeting efforts to provide medication abortion to residents. Another bill would apply Missouri’s abortion laws to abortions obtained out of state by Missouri residents and in other circumstances, including in cases where “sexual intercourse occurred within this state and the child may have been conceived by that act of intercourse.”

That bill has seen no movement in the legislature, while lawmakers did an end run around the other legislation when it was brought up on the state House floor last month.

Mary Ziegler, a Florida State University College of Law professor who’s the author of “Abortion and the Law in America: A Legal History, Roe v. Wade to the Present,” said the Missouri bill is a sign of things to come.

“This won’t be the last state that tries to regulate conduct outside of its borders,” Ziegler told CNN.

‘The portability of medication abortion changes the access landscape’

What has complicated the picture since the last time the Supreme Court seemed to be poised to overturn Roe is the development of medication abortion, in which pregnancies are ended with a two-pill regime. It is now the method used in more than half of all abortions in the country. A recent loosening of the regulations around abortion pills, which the Food and Drug Administration has now cleared to be dispersed by mail, has prompted anti-abortion states to think of new ways to regulate its availability. How the pandemic expanded the use of telemedicine has also changed the abortion landscape, as — coupled with the loosened FDA regulations — some abortion patients can undergo the medication abortion procedures without being inside a clinic.

“In the last three years education about abortion pills has been a huge part of my job,” said Katie Glenn, the government affairs counsel for the anti-abortion group Americans United for Life.

Several states have outlawed telemedicine abortions and sending the pills by mail.

But some, like Texas, have gone further by contemplating how they’ll prosecute providers who seek to send in abortion pills from out of state. Texas last year expanded upon its existing prohibitions on mailing medication abortion pills by classifying the offense as the type of crime that would warrant extradition.

“As you start to think about all the ways that the portability of medication abortion changes the access landscape, I think you see a lot of laws targeting that,” said Rachel Rebouché, who is a co-author of a coming law review article exploring the interstate legal questions raised by a Roe reversal.

On the flip side — and in anticipation that their states will become so-called “safe havens” for abortion seekers and clinics — Democratic lawmakers are pushing proposals that would limit the ability of out-of-state authorities to investigate providers within blue states.

New York lawmakers have introduced several bills that would protect abortion providers from extradition to other states. California is considering legislation aimed at the civil enforcement mechanism — i.e. lawsuits filed by private citizens against those who facilitate outlawed abortions — that was championed by Texas’ six-week ban and is being considered by other states.

A bill in Connecticut would bar state agencies from assisting investigations or prosecutions launched by out-of-state authorities and restrict the disclosure of reproductive health records sought by out-of-state subpoenas, among other provisions.

Glenn argued that these bills may have unintended effects on patients. She posited, for instance, that the Connecticut bill would prevent an out-of-state resident from pursuing a lawsuit for a botched delivery performed in the state.

Connecticut state Rep. Jillian Gilchrest, a Democrat who sponsored the bill, dismissed the criticism, telling CNN that “those on the anti-choice side would say anything to try and prevent individuals from being able to access legal safe abortion care.”

She said Connecticut lawmakers were prompted to push the bill, which passed the legislature last week, by the novel Texas law. The Texas law provided a model for one of the Missouri proposals targeting out-of-state abortions.

“By being able to go after individuals that assist someone with an abortion, we recognized that a Texas-like law, in other states — they could reach to Connecticut,” Gilchrest said.

‘Swift and decisive action’ against companies that aid employees in obtaining abortions out of state

Texas legislators have previewed how they may seek to hinder access to the procedure even beyond their state.

One statehouse Republican sent Citigroup a letter earlier this year demanding that the company end its policy — adopted in reaction to the six-week ban — of covering travel costs for employees seeking abortions out of state.

Texas state Rep. Briscoe Cain promised “swift and decisive action” if the company did not rescind the policy.

“I intend to introduce legislation next session that bars local governments in Texas from doing business with any company that pays the abortion-related expenses of its employees or that provides abortion coverage as an employee benefit — regardless of where the employee is located or where the abortion is performed,” Cain wrote, adding that his proposal would apply “even if the employee is located out of state and even if the abortion is performed out of state.”

Citigroup declined to comment on the Cain letter.

The tactic threatened by Cain echos a bill Texas enacted last year aimed at banks that decided to no longer finance certain gun manufacturing companies. But, more broadly, key legal questions remain untested about how lawmakers can regulate abortion-related conduct that happens outside their states.

The topic was debated among legal academics ahead the 1992 Supreme Court ruling in Planned Parenthood v Casey, a case that many believed would lead to the end of Roe. (The court instead upheld its protections.) It was also the subject of a law review article in 2007, when the departure from the court of Justice Sandra Day O’ Connor, the swing vote in the Casey case, revived the belief that Roe’s days are numbered.

“Basically every time there’s this inflection point, with the court changing, you see kind of these issues come up again,” said Greer Donley, who is one of the co-authors of the new article, which will be published in the Columbia Law Review, about the topic.

But, she said, this is the first time “we’re really starting to see legislators playing with the text and language of these bills coming out.”

“And certainly you have an anti-abortion movement that is extremely emboldened right now with its own belief that the court is going to support a lot of its more creative measures,” Donley told CNN.

This story has been updated following the publication of a draft opinion that would overturn Roe v. Wade.

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