WASHINGTON — With Roe v. Wade now overturned by the Supreme Court, a number of states are now moving to enforce “trigger laws” that will substantially restrict abortion within state borders. But some could potentially go further by making it more difficult – and potentially criminal – for people seeking abortions to do so out-of-state.
While there are currently no laws in place that restrict such travel for abortion access, previous legislation to that effect has already been considered in at least one state with a trigger law on the books. And the wording of Dobbs v. Jackson gives way for states to define exactly when life begins, opening the possibility for prosecutors to charge those seeking abortions with conspiracy to commit murder.
Here’s a breakdown of how some law experts believe the Supreme Court’s ruling paves the way for states to restrict abortion beyond state lines.
Have states tried prohibiting out-of-state abortions?
Yes. GOP legislators in Missouri have tried multiple times to attach amendments to bills that would allow for any party to sue those that either received an abortion or assisted in providing an abortion, including healthcare providers from out-of-state.
Anti-abortion activists in states like Texas have also been working with state lawmakers to enact Missouri-style proposals, according to Politico.
So far, the efforts have failed, but Rachel Rebouche, interim dean at Temple University’s Law School, said that Dobbs now clears the way for states to restrict out-of-state abortion because “any travel ban would be premised on the idea that a state can ban abortion."
However, Rebouche added that the path to pass a law that outright criminalizes out-of-state abortions is an uphill battle because such a law would likely face several legal hurdles.
“It may be currently a little premature to enact straight-out bans right away,” she said.
Any state that tries to do so would almost certainly run into federal opposition.
During remarks Friday at the White House, President Joe Biden warned states to not pass laws or restrictions that would limit a woman's access to reproductive healthcare services in other states.
Biden said his administration was prepared to help women travel out-of-state to receive such treatment, but he did not elaborate on how exactly he planned to do so.
A number of major corporations have also told employees they will cover travel costs for individuals seeking abortions. The Walt Disney Co., Netflix, Paramount, Comcast, Sony, Warner Bros and Meta are among the media companies that confirmed they will cover travel costs for abortion-seeking employees.
Could states put people on trial for murder for receiving or assisting in an abortion?
According to Drexel University Law Professor David Cohen, states could use laws already in place to restrict out-of-state abortions instead of passing bans that would likely be challenged in federal court. These could include charges such as conspiracy to commit murder.
Cohen said that one mechanism state legislators could do is pass or reword laws that specifically define fetuses as human life. From then on, receiving, performing or aiding in an abortion could therefore be legally classified as a type of murder to some prosecutors.
“Basically, what Alito’s opinion is saying is that there's just no constitutional issue with how a state defines life beginning,” Cohen said. “If you have a state that considers a fetus as a human being, anything that kills that human being is murder.”
Abortion restrictions that allow for civil penalties have currently been limited to targeting people that assist in the abortion process, such as activist groups and healthcare providers, but Cohen added that he is concerned the precedent won't hold for long.
“I think in the near future, we're going to see some states that try to go after the patient and not just the people helping them or performing the abortion,” he said.
Could traveling for other reproductive health services also be restricted?
Rebouche said the limit to reproductive services like contraception would depend on how state legislatures or courts define what causes an abortion.
For example, an IUD might be considered a type of abortion-inducing contraception because it can expel a fertilized egg, as opposed to condoms that prevent fertilization from occurring. In these cases, receiving or helping someone receive an IUD could soon violate state laws, even if the procedure is performed out of state.
“I think there's a lot of contestations about whether or not that occurs and what kinds of IUDs are being used, but there’s certainly a possibility of the definition of abortion expanding,” Rebouche said.
Cohen added that state laws on the definition of life could even expand into treatments regarding miscarriage management treatment or in-vitro fertilization, with out-of-state healthcare providers facing threats of civil penalties for assisting patients who come from a state with strict definitions of what constitutes as an abortion.