As abortion bans proliferate in states around the US, some state legislatures are likely to go even further than just ending abortion in their jurisdictions – taking aim at the growing numbers of people seeking procedures and medications out of state, experts warn.
If, as the bombshell leak of its private vote suggests, the supreme court weakens or overturns Roe v Wade – the 1973 decision that established a constitutional right to abortion – in an upcoming decision on Mississippi’s 15-week abortion ban, states will be left with a confusing patchwork of laws that will probably lead to legal challenges.
A fresh wave of restrictions will probably center around patients who leave their state to obtain legal abortions in other states, or who order medications to manage their abortions at home.
Lawmakers in Missouri weighed legislation early this year that would allow individuals to sue anyone helping a patient cross state lines for an abortion. The law was ultimately blocked in the state’s legislature, but experts expect such legislation to gain more support if Roe is weakened or overturned.
“I think states are not going to rest with just saying ‘there won’t be abortions in our state.’ I think they’re going to want to ban abortion for their citizens as much as they can, which would mean stopping them from traveling,” said David Cohen, professor at Drexel University’s Kline School of Law and lead author of a forthcoming article on cross-state legal issues that could arise in the abortion context.
“We’re going to see state-against-state battles that are really going to divide this country even deeper on this issue,” he said.
If the supreme court overturns abortion protections, such travel bans might also be permitted to stand, Cohen said.
“The supreme court does not have well-developed case law regarding extraterritorial application of state law,” he added in an email. A court that has gone so far as to overturn Roe, he said, “would likely take that unclear precedent in the direction that is most anti-abortion.”
But banning travel would go against “basic American principles”, he said. “You have freedom of travel in this country, and as long as you’re following the law in the state where you are, you are legally OK” under current law. For instance, adults can gamble in states where it’s legal, even if they’re from states where it’s not allowed.
If the constitutional right to abortion is reversed, more than half of states are likely to prohibit abortions, according to separate analyses by the Center for Reproductive Rights and the Guttmacher Institute.
Several states have recently passed abortion bans that would be unconstitutional under Roe, but could stand if the landmark ruling is overturned by the supreme court. Some have passed laws similar to Texas’s ban on abortions at six weeks of pregnancy – around four weeks after conception, when most people don’t know they are pregnant – while others are advancing legislation similar to the 15-week ban at the center of the supreme court case.
On Thursday, Oklahoma lawmakers passed a Texas-style ban that will take effect immediately after Governor Kevin Stitt signs it, expected to occur within days. Stitt signed another bill earlier this year that would make abortion illegal in nearly all circumstances, but that law would not take effect until August.
As state-based restrictions proliferate, traveling out of state for reproductive healthcare has become common. After the Texas law took effect last year, Planned Parenthood clinics in neighboring states saw an almost 800% increase in patients.
If Roe is weakened or overturned, “a lot of the states that are likely to lose access are surrounded by other states that are likely to lose access”, said Mikaela Smith, a research scientist at the Ohio State University’s College of Public Health and the lead author of new research on out-of-state abortion travel. That means patients may need to travel across several states to receive care.
That would also exacerbate existing inequities in healthcare, she said. “Folks who have the resources and have the financial means will be able to do the extra work to cross state lines and folks who don’t, or don’t have the connections or know how to access the care they need, just won’t be able to.”
States are also likely to crack down on other efforts to access care. In Texas, a law passed last year made it illegal to ship medication for self-managed abortion, including across state lines – another potential template for copycat legislation.
Since the US Food and Drug Administration (FDA) announced last year that it would continue its pandemic-era policy to allow medication abortion, also known as the “abortion pill”, to be prescribed via telemedicine, the drugs have become a greater target from anti-abortion advocates. Medication abortion now accounts for the majority of abortions in the US.
“Pills are going to be a major part of how people continue to get abortions after the supreme court rules, so I think that we’ll see states trying to ban pills in all sorts of different ways,” Cohen said.
Blue states are preparing for the upcoming decision by shoring up reproductive rights for patients and protections for providers.
Soon after Idaho passed a contested Texas-style ban, neighboring Washington enacted the first law to prevent lawsuits on performing or aiding an out-of-state abortion.
Bills are progressing through the Connecticut and Illinois legislatures to protect patients traveling from out of state and the providers who care for them, and a dozen bills are moving through the California legislature to make reproductive rights stronger and more accessible.
