How free can any woman be in a country where her right to control her body and family depends on the jurisdiction where she happens to live? Republicans are looking to find out. Over the past few weeks, as Republican officials in anti-choice states seek to make their abortion bans enforceable and compel women into childbirth, a new front has opened up in the abortion wars: roads. The anti-choice movement, through a series of inventive legal theories and cynical legislative maneuvers, is now attacking women’s right to travel.
In a court filing last month, the Alabama attorney general, Steve Marshall, wrote that he believed his office had a right to prosecute those who help women travel across state lines in search of an abortion. The filing comes in a lawsuit from two women’s health clinics and an abortion fund, which sued Marshall after he publicly stated his intention to criminally investigate organizations like theirs, which provide financial and logistical help to pregnant patients seeking to leave the state. In his response, Marshall unequivocally stated that Alabama, which bans all abortions with no rape or incest exemption, views any effort to help women cross state lines as a “criminal conspiracy”.
“An elected abortion performed in Alabama would be a criminal offense,” Marshall’s office writes. “Thus, a conspiracy formed in the state to have that same act performed outside the state is illegal.” The filing goes on to dismiss the free speech, expression and association claims of the fund and the two clinics.
Meanwhile in Texas, two counties and two cities have passed laws banning so-called “abortion trafficking” – that is, the transport or assistance of anyone seeking an abortion – on the roads that pass through their territories. The “trafficking” in this moniker refers to the fetus: “The unborn child is always taken against their will,” Mark Lee Dickson, the architect of these bills, told the Washington Post. Like Texas’s SB 8, the bounty-hunter ban that outlawed abortions in Texas at six weeks before the fall of Roe, these travel bans are also enforced via lawsuits by private citizens – the law is designed to allow those who are displeased by an abortion to sue the friends, feminists and allies of the pregnant patient who helped her to get one.
Dickson and his political partner, the SB 8 architect Jonathan Mitchell, are pushing the provision in border cities and towns along major interstate highways. And like SB 8, the law is less likely to be used by strangers to prevent abortions than by abusers to punish ones that already happened. As an example of the ideal use of his bill, Dickson told the Washington Post that a husband who did not want his wife to get an abortion could use it to sue the friend who offered to drive her – thus somewhat giving away the game that the goal of such a provision is to ensure that men’s private domination and abuse of women is recognized as a right enforceable by civil law.
Texas and Alabama are not alone. Earlier this year, Idaho became the first state to criminalize abortion-related travel when it enacted a law making it a felony to help a minor cross state lines for an abortion. Meanwhile, Missouri made headlines last year when Republicans introduced bills that would criminalize anyone helping state residents to obtain abortions elsewhere.
Is any of this constitutional? No. But that doesn’t mean the laws will be struck down. The novel enforcement mechanism of the Texas laws, in particular, which are enforceable not by the state or municipality but only by the lawsuits of private citizens, make it hard for any pro-choice group to get standing to challenge them. That’s the point: the bills are constructed to evade judicial review. And though Justice Brett Kavanaugh, for one, has said that he would disapprove of anti-choice states’ attempts to prevent women’s travel, the supreme court, including Kavanaugh, has already blessed abortion ban by civil suit with its sanction of SB 8.
But the point of these laws is not, exactly, to enforce them, except perhaps in the event when they are used by domestic abusers to further their control and torment of the women they’ve imprisoned – as is already happening. The real point is to chill legal conduct, and to prevent the people, mostly women – the sisters, friends, abortion fund staffers, colleagues and local feminists who any abortion patient might turn to for help – from acting on their own moral convictions.
The law is punitive, not preventive: it is designed not to intervene in abortions before they happen so much as to punish them after the fact. It is designed, too, to frighten: the very vagueness of these laws, and the fear of punishments for violating them, will inevitably keep those who would assist an abortion from doing so. The point is to threaten with humiliating, ruinous lawsuits and life-altering criminal prosecutions any woman who might act on her conviction that another woman deserves to control her own body. The point is to punish and declare illegal women’s friendship, confidences and feminist solidarity itself.
In their attempts to keep women walled inside anti-choice states, and to criminalize both friendship and flight, the abortion travel bans have been compared to the 19th century’s fugitive slave law. I for one believe that American chattel slavery does not make a good comparison; its horrors fail as metaphor. But one does not need to draw any moral equivalence to see the parallels of the emerging political divide. An untenable conflict is arising between states where women are free to control their bodies and states where they are not, and the latter group is not respecting the laws of the former.
The nation cannot sustain this division, and it will not: either abortion will soon become legal nationwide, or it will soon be banned nationwide. For their part, the anti-choice movement seems very confident which direction we’re heading.
Moira Donegan is a Guardian US columnist
