With the United States, Supreme Court set to strike down the right to abortion, the next legal fault line is already forming, as anti-abortion lawmakers consider whether to go so far as to extend bans to states where the practice is allowed.
According to legal experts, a leaked draft opinion by Supreme Court Justice Samuel Alito this week overturning the landmark 1973 Roe v. Wade decision that established abortion rights has the potential to sever ties between states on opposing sides of the abortion debate and test constitutional limits.
“Justice Alito argued that returning abortion to the states will result in a workable statute and decrease the dispute we’ve seen in the courts,” Rachel Rebouche, interim dean of Temple University’s Beasley School of Law, stated. “I don’t see that happening.”
Permitted experts said they’re keeping an eye on bills like Missouri’s that try to block women from traveling out of state to terminate a pregnancy or acquiring abortion-inducing drugs from a state where it’s legal.
If the procedure is performed on a Missouri citizen, a bill presented last year would extend the state’s civil and criminal prohibitions to providers in states where abortion is allowed. It even applied if a non-resident had sex in the state and the relationship resulted in a pregnancy.
According to legal experts, such regulations will almost certainly be challenged as violations of the Dormant Commerce Clause of the United States Constitution, which forbids unreasonable burdens on interstate commerce or the right to travel.
“The freedom of U.S. citizens to cross state lines and move about is one of the essential characteristics of a federal system,” said Lee Strang, a professor at the University of Toledo College of Law. “Thou shalt not travel to Alabama for abortions,” Mississippi cannot proclaim.
Senator Andrew Koenig, the bill’s sponsor, did not respond to a request for comment.
It’s less apparent how a different Missouri lawmaker’s proposal from this year might be contested in court.
Residents would be able to sue anyone who performs an abortion on a state resident or assists a state resident in obtaining the procedure, including taking them across state lines. It was primarily directed at abortion clinics in neighboring Illinois, according to Republican lawmaker Mary Elizabeth Coleman, who proposed it.
S.B. 8 is a Texas law that inspired the idea. Because it is enforced by private persons, critics dubbed it a “vigilante” law because the typical technique of seeking an injunction to prohibit officials from enforcing the law does not apply.
The Texas legislation was upheld by the United States Supreme Court, and a challenge in Texas courts was rejected because state officials could not be named as defendants.
This week, lawmakers throughout the country pledged to crack down on abortion, with some ideas pushing the law to new heights.
Louisiana legislators advanced a bill on Thursday that would categorize abortion as homicide and extend constitutional rights to women from the time of conception.
In a research paper, Rebouche stated that “The “effects doctrine,” which extends jurisdiction to actions occurring outside a state’s borders if they have an influence on the state, could allow anti-abortion states to pursue abortions in states where they are allowed.
The effects doctrine might result in nearly unending criminal prosecutions related to out-of-state abortions once a state labels a fetus a distinct life “Rebouche and her co-authors wrote
States that preserve abortion rights are paying attention.
Governor Ned Lamont of Connecticut signed a bill into law on Thursday that protects abortion doctors from litigation and prosecution for breaching the abortion laws of another state.
Abortion is such a difficult topic, according to David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law and Lebouche’s co-author, that it might upend long-held legal notions about state sovereignty.
He believes it would be unconstitutional for a state to enforce anti-abortion laws against abortion providers in a state where abortion is legal, but given the country’s large number of conservative judges, it’s difficult to predict how the courts will react.
“It would be difficult to counsel someone that traveling out of state for an abortion is entirely safe as a matter of law,” he said.