The Supreme Court’s decision Friday to overturn the constitutional right to abortion has only further fractured an already deep division between the states, where contentious legal battles are almost certain to erupt as legislatures and attorneys general grapple with the new landscape of abortion access.
Even before the opinion, lawmakers, activists and legal scholars were arguing over whether Republican-led states can enforce abortion bans beyond their borders and target providers, people who provide assistance and the women seeking abortions. That speculation could soon become reality as abortion opponents become more emboldened to try novel approaches to prevent women from crossing state lines to terminate a pregnancy.
Meanwhile, Democrats are shoring up what remaining protections they have left in order to shield women who travel to get an abortion and ensure patients do not face penalties back home. Washington is barring the state from acting against doctors who perform such abortions, while California and Illinois are considering similar measures.
Shortly after the decision was announced Friday, Massachusetts Gov. Charlie Baker, a Republican who has said he supports a woman's right to choose, signed an executive order prohibiting state agencies from assisting another state’s investigation into people or businesses that receive or deliver reproductive health services that are legal in Massachusetts.
The order also protects Massachusetts providers who deliver reproductive health care services from being disciplined based on potential out-of-state charges. In a statement, Baker said it was important to ensure that health care workers in the state can provide services “without concern that the laws of other states may be used to interfere with those services or sanction them for providing services that are lawful in the Commonwealth.”
Connecticut enacted a law earlier this year to stymie lawsuits or criminal cases from other states over legal abortions for out-of-state residents. Its attorney general, William Tong, called overturning Roe “a very grave risk to women and patients across the country" and said he would be the first to sue if Republicans gain control of Congress and the presidency and enact a nationwide abortion ban.
“This decision carves our nation in two — states that trust the personal and professional decisions of women and doctors, and states where craven politicians control and criminalize those choices," said Tong, a Democrat. "Connecticut is a safe state, but we will need to be vigilant, aggressive and proactive to defend our rights.”
In Minnesota, Attorney General Keith Ellison has already vowed to protect abortion rights as outlined in the state constitution.
But he said “things will be much tougher” in states bordering Minnesota, some of which will have total bans on abortion. Some states such as Texas allow private citizens to sue people who assist in abortions. Ellison said he fears it might it might result in lawsuits against Minnesotans against those who help women traveling to the state for abortions, but he promised he would fight any possible extraditions.
“We’re going to fight it. We’ll be in court standing with those folks, defending people’s rights to seek reproductive freedom," he said.
Near the Michigan-Ohio border, Democratic state Sen. Teresa Fedor, of Toledo, said her city is preparing. She thinks Toledo may become a sort of “underground railroad,” not just for women seeking abortions, but possibly for women seeking miscarriage care or contraception.
“Women may be coming up through Toledo to go to Michigan to, in my opinion, face situations that could be life and death for them,” Fedor said.
Half of the states are expected to outlaw most abortions due to Roe falling, according to the abortion-rights think tank Guttmacher Institute. Twenty-two states, largely in the South and Midwest, already had total or near-total bans on the books. However, aside from Texas, all of those had been blocked because of Roe.
Separately, 13 other states had previously enacted so-called trigger laws that immediately ban abortion with Roe overturned.
Professor Michael Steenson of the Mitchell Hamline School of Law in St. Paul, Minnesota, predicted the legal landscape after the Supreme Court decision will be in “absolute chaos” and it will take a long time to sort out issues like whether it’s illegal to travel to get an abortion.
Chicago-Kent School of Law professor Mark Rosen called using private lawsuits a “devilishly creative” approach that increases the number of people enforcing a law while hindering legal challenges in federal court. Rosen said while it’s not clear how effectively a state could enforce its laws outside its borders that way.
Some legal experts — and even some anti-abortion lawmakers — argue that states simply can’t control what goes on beyond their borders. Buying and smoking marijuana is one example: Kansas waits until residents return from “pot vacations” in Colorado to pull them over.
Some abortion opponents argue that it’s better to focus on providing help to pregnant women and make adoption less expensive so they don’t choose abortion. Texas recently allocated $100 million for such services.
“I want the Legislature to continue to focus on providing and promoting these alternatives to abortion,” said Joe Pojman, executive director of the Texas Alliance for Life.
Others warn that the Supreme Court’s decision will encourage states to push extreme policies in their attempt to criminalize abortion. Louisiana lawmakers already have floated a proposal calling abortion homicide, which would have opened up women to murder charges if they got an abortion. The proposal was eventually spiked and there’s no immediate indication that Republicans in other states are interested in taking up similar legislation.
“They push the envelope,” said Jessica Arons, the American Civil Liberties Union’s senior lawyer for reproductive freedom. “They’re always trying to propose things that in the moment seem outrageous or fringe, but the more they push it over time, it becomes normalized.”
