In his draft opinion overturning the constitutional right to abortion, Supreme Court Justice Samuel Alito says returning the abortion issue to states would put an end to difficult abortion legal disputes, as each state forges its own consent. Legal experts warn, however, that the opposite is true. The red and blue states are already moving in the direction of a cross-border legal war on access to abortion that could fundamentally change the way states interact and cooperate.
“We’ll see threats to basic assumptions about how states work together,” warns David Cohen, an abortion rights expert at Drexel University’s law school, as red states enact laws that restrict their citizens’ ability to cross state borders and seek reproductive health care. “Normally, states cooperate. Normally, states leave their laws within their borders. But because states opposed to abortion become so aggressive in trying to solve this problem of what we do for people traveling out of state, it will create all these problems. “
It would be as if South Carolina, which still criminalizes marijuana possession, were trying to prosecute Oregon dispensaries who sold their products to Alabamians on vacation, or if Utah, one of the two states that prohibits the use of marijuana. gambling, began to pursue Las Vegas casinos that allow Utah residents to play slots.
This would be a new type of legal hardball between states, yet it is predicted in “The New Abortion Battleground,” a Columbia Law Review draft paper released in February. “We’re pretty confident that states will increasingly try to get out of their borders,” says Greer Donley, one of his three co-authors and reproductive rights law expert at the University of Pittsburgh School of Law. “The anti-abortion movement has been pretty clear that their goal is to end abortion nationwide.”
Missouri has already contemplated how to do this; a legislator there presented a bill this year that if adopted it would have allowed civil vigilante lawsuits against anyone who helps a Missouri resident secure an out-of-state abortion. The language would put abortion providers in the blue states at risk of civil liability in the red states. “States will start trying to ban travel, chasing suppliers from other states for killing a citizen of that state,” says Cohen, another co-author of the Columbia Law Review paper. “The blue states have to be ready for this in advance. They can’t wait for that to happen. ”
States that support abortion rights but don’t prepare, risk having abortion providers, anyone else who can help someone trying to end a pregnancy, or even abortion fund lenders who help people pay the trip and the procedure, extradited to another state on charges of an accomplice of murder. “It could be the person who drove you, your mother who gave you gasoline money to go there, the person who made your appointment, the person you call to find out where the nearest clinic is in the state. bordering on you, “says cohen” They could be chasing many people as accomplices in this crime. “
Connecticut is one of the few liberal-leaning states that prepare legal defenses. Just last week, it passed the Law on the defense of reproductive freedom to prepare and assist protection providers who perform abortions on out-of-state patients. Now, if a Connecticut resident were to be sued by a resident of another state for assisting an out-of-state patient to obtain an abortion, the law would allow them to cross-sue in Connecticut courts to recover the costs. . The new law also bans extradition to other states on criminal charges related to legally performed abortions under Connecticut law and prevents medical records from reproductive health care services from being sued by other states.
It is easy to imagine how such conflicting legal regimes would develop. A Missouri resident travels to Connecticut to have an abortion. Missouri law enforcement is issuing subpoenas and demanding extradition of a Connecticut abortion provider. Vigilante sues Missouri court for civil damages. The abortion provider responds to the Connecticut court. Connecticut law enforcement fails to meet Missouri’s request for documentation or cooperation. There is a stalemate.
Of course, blue states can only protect their residents when they are in the state. Imagine a state like Missouri, or any of about 25 States that could ban abortion Self roe deer v. veal it is effectively overturned, issuing warrants for abortion providers, advocates or others in different states. “They should think, you know, can I fly across the country? Or maybe my plane will be hijacked due to the weather on St Louis? What do I do then? ”Cohen says.
It’s hard to imagine this kind of interstate risk. But for decades it was also difficult to imagine the overthrow of the Supreme Court roe deer v. Veal, yet a leaked draft opinion suggests that there are only a few weeks left to do so. “There are people who might say that bill in Missouri was a red herring and some wacky, outlandish laws are being introduced all the time that aren’t going anywhere,” Donley says of the foiled bill. “We think people are likely to try because there are only people in the anti-abortion movement who are so zealous about their cause that they will try anything.”
What would be the result of such a conflict between states? “This will create a situation where the country will turn into warring camps that are pulling out all the brakes,” Cohen predicts. “Ultimately, these problems are solved by the Supreme Court and the Supreme Court says that one or the other is not authorized to do what he wants to do.”
In other words, if Missouri wants to extradite an abortion provider and Connecticut refuses, Judge Alito could get into the breech.