As if it weren’t bad enough to have your own state ban basic health care options, red states are now trying to prohibit their residents from traveling to other places to access procedures Republicans don’t like.
Missouri is trying to prevent its residents from having out-of-state abortions. Idaho is trying to prevent parents from taking their trans kids to other states for gender-affirming procedures. This is the unprecedented and, frankly, crazy result of the Supreme Court giving its blessing to Texas’ six-week abortion ban, which is enforced with a bounty hunter provision that encourages citizens to spy on and sue each other.
For more than six months, Texas has allowed private citizens to sue anyone who aids or abets an abortion in the state and, as a result, abortion providers have halted all abortions after six weeks. Banning abortion that early in pregnancy is (for now) unconstitutional, but the Supreme Court has repeatedly refused to block S.B. 8, owing to its novel enforcement mechanism.
Now, after seeing the legal success of Texas’s “sue-thy-neighbor” bill, Republican lawmakers are attempting to use its framework to not only ban abortion and gender-affirming care, but prohibit people from leaving their home states to obtain these life-saving procedures in elsewhere. That these proposals to trap people in their states are coming from the allegedly pro-freedom and anti-government interference party would be a funny bout of irony if the proposals weren’t so deadly.
“It’s utterly outrageous,” Andrew Beck, senior staff attorney with the ACLU Reproductive Freedom Project, told Jezebel. “This is taking the Texas model, which has already eviscerated access to abortion in Texas and trying to apply it to people seeking abortion anywhere, whether or not in the state of Missouri. We’re already at a national crisis point.”
This week, the Idaho House passed H.B. 675, which would make it a felony punishable by up to life in state prison to provide transgender teens with puberty-blockers, hormones, and gender-affirming surgeries. It would also ban parents or guardians of trans teens from taking them out of state for this care. The bill now heads to the Idaho Senate.
In Missouri, state Rep. Mary Elizabeth Coleman attached an eight-page amendment to H.B. 1677—a bill originally about prescription drug prices—which would allow private citizens to sue anyone who performs an abortion on a Missouri resident, possesses or distributes abortion pills, and aids or abets a Missouri abortion patient regardless of where the abortion is performed. The majority of Missouri residents who get abortions have traveled to Illinois and other states for care. The Missouri bill has not yet had a floor vote.
Any lawsuits filed under bills like these would rely on surveillance of people’s movements and medical care. On first reading, both seem unconstitutional. But that’s what experts said about S.B. 8 when it initially came before the court in September, and the Supreme Court upheld it. Legal experts said the same about Dobbs v. Jackson Women’s Health Organization, the case that will likely overturn or severely hamper Roe v. Wade. That case involves a 2018 Mississippi law banning abortions after 15 weeks, well before Roe’s standard of fetal viability which is about 22-24 weeks of pregnancy. The only thing that has changed since 2018 is the ideological balance of the Supreme Court.
“It was only a matter of time, honestly. Using the mechanism of private enforcement first seen in SB 8, Missouri has gone further—allowing individuals to sue those who provide aid to those seeking an abortion, including abortions that would be conducted outside of Missouri’s jurisdictional boundaries,” said Melissa Murray, a professor at New York University School of Law and an expert in reproductive rights and family law.
These attempts at legislating activities across state lines seem illegal on their face because states don’t have that power—only Congress does. But, since the Supreme Court’s ultra-conservative supermajority has shown no interest in protecting privacy rights like abortion, what’s to say the Bill of Rights and other amendments are just another nuisance to be ignored?
If these hostage schemes prove successful, gerrymandered conservative legislators could use the framework to ban other fundamental freedoms like the ability to marry the partner of your choosing or even use birth control. In Roe v. Wade, the Supreme Court reaffirmed a constitutional right to privacy rooted in the 14th Amendment that it originally found in a 1965 case, Griswold v. Connecticut, that allowed married couples to use birth control. Landmark cases legalizing same-sex relationships (Lawrence v. Texas, 2003) and marriage equality (Obergefell v. Hodges, 2015) flow from the legal reasoning in both Roe and Griswold. If the Supreme Court overturns Roe in the term ending this June, those precedents would also be at risk and we could see states move to ban gay residents from getting married in other states. This is not a hypothetical concern: One Texas lawmaker asked the state Attorney General in October for his legal opinion on whether private citizens have to recognize same-sex marriages in the state.
“It really goes against basic understanding of being an American,” David S. Cohen, professor of law at Drexel University Thomas R. Kline School of Law in Philadelphia, told Jezebel. “Before gambling became more widespread, I could go to Nevada or New Jersey to gamble.”
“[People] might never think of the term federalism or states rights or local control, right? But it’s baked into who we are,” Cohen said. “Someone who follows the [potential] law in Missouri says, ‘Okay, I’m not going to try to get a doctor to give me illegal abortion pills. I’m going to follow the Missouri law, but I’ll go to Illinois, you know, follow Illinois law.’ That’s what we think is the right way to do things. And this law goes against that basic understanding.”
Cohen said the Missouri and Idaho proposals show that trapping people is part of the game plan for red states. “Not only to pass retrogressive, hateful laws for their own people, but then to try to make it have effects outside of the state,” Cohen said. “They really are trying to undermine what it means to be citizens with local control because they are trying to have control way beyond their borders. Seeing it in the non-abortion context with trans health care, it’s really scary thinking what this could mean for the entire country.”
States could also go full reefer madness and ban people from buying cannabis in states with recreational marijiuana laws. Groups had warned after the Supreme Court upheld the Texas law that its enforcement mechanism could be used to limit other constitutional rights, like owning a gun. So we could also see blue states with, say, assault weapons bans, follow Idaho and Missouri’s lead and attempt to prohibit residents from traveling to other states to buy those guns.
The Missouri anti-abortion amendment would be particularly devastating for residents as the state has relentlessly attacked abortion in recent years. There is only one abortion clinic in the state—a Planned Parenthood in St. Louis—and patients must have a transvaginal ultrasound, then wait 72 hours before their abortion, even if it’s done with pills. The vast majority of patients choose to cross the border from St. Louis and go to the Planned Parenthood in Fairview Heights, Illinois, rather than go through all those medically unnecessary hoops.
“This is Mary Elizabeth Coleman’s abortion temper tantrum,” Bonyen Lee-Gilmore, vice president of strategy and communications at Planned Parenthood of the St. Louis Region & Southwest Missouri, told Jezebel. “Abortion is all but banned in Texas, but patients are still figuring out a way to access. People will access it.”
With that knowledge that the federal courts are likely to rule in her favor, Coleman’s amendment targets a laundry list of pro-abortion education efforts from the last two decades. The Missouri amendment would make it illegal to: provide abortions to Misssouri residents; transport someone to an abortion clinic out of state, give someone money for an abortion, host or maintain a website that provides information about abortion, tell people how to do a medication abortion on their own, and possess or distribute abortion pills in the state. (Coleman used abortion pills as the reason to tack this the far-reaching amendment onto a drug pricing bill.)
Any person can sue someone who has violated these provisions for at least $10,000 and attorney’s fees. In what seems like her attempt at being reasonable, the amendment contains a six-year statute of limitations instead of in perpetuity.
The region has planned for moves like Coleman’s for years. In 2019, Missouri and Illinois advocates had the idea for a one-stop shop for abortion care planning. The Regional Logistics Center opened in late January, a project between regional Planned Parenthood and independent abortion provider, Hope Clinic for Women in Granite City, Illinois. “We’re booking flights for people, hotels. We work with abortion funds in all 50 states in order to put together this one stop shop experience so patients who are busy parents, working, don’t have time to do full-scale travel logistics and make abortion more easily accessible,” Lee-Gilmore told Jezebel. Coleman’s amendment would make all of these activities illegal.
The bill still needs to be “perfected” before it can be heard on the House floor, but the time to worry is now. State legislatures trip over one another to pass the most restrictive legislation possible.
Lee-Gillmore noted that attacks on trans rights and abortion access are coming from the same place. “Trans rights, all of these rights and freedoms are next. They’re just testing the mechanism,” Lee-Gilmore said. “Abortion rights, reproductive rights have always been othered in the conversation around social justice [and] that mindset is going to be a disservice to so many other people who have rights on the line. It’s past time to recognize the intersecting rights at stake.”