Long before the Supreme Court overturned Roe v. Wade on Friday, Republicans have tried to spin the opinion as one that would simply kick the legality of abortion back to the states to decide for themselves. Now, in addition to banning abortion in their own states, Republicans state lawmakers are working with lawyers to draft legislation that would prevent their residents even from traveling to other states to access abortion care.
The Washington Post reports that state lawmakers are working with the conservative Thomas More Society to draft model legislation based on the legal mechanism of Texas’ six-week abortion ban—the bill with a bounty-hunter mechanism that would allow private citizens to sue anyone who helps a pregnant woman travel out of state for an abortion. This legislation would rely on the surveillance of pregnant women and people, even though it would likely claim not to prosecute pregnant people themselves.
This kind of law is difficult for courts to block before it takes effect, because because there are no state officials tasked with enforcement for abortion advocates to sue. Their ultimate purpose is to scare abortion providers into halting care rather than risk getting sued. Not every anti-abortion group agrees with the strategy: Catherine Glenn Foster, president of Americans United for Life, told the Post that people travel for medical care all the time and that she didn’t think states could prevent it. But this is the Pandora’s Box that the Texas law opened.
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” Peter Breen, vice president and senior counsel for the Thomas More Society, told the Post. “It’s not a free abortion card when you drive across the state line.” Yes, traveling out of state for a time-sensitive medical procedure is famously easy and free.
The Post reported that anti-abortion lawmakers were discussing the prospect of a travel ban at two conferences this past weekend. There’s no draft text yet, but lawmakers in Arkansas and South Dakota are reportedly considering this tactic and could even introduce bills at special sessions this summer. It’s worth noting that a Missouri state lawmaker introduced a similar bill in the spring, which failed—but that was before Roe fell.
Attorney General Merrick Garland addressed the possibility of these kinds of laws in a statement on Friday: “Under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal.” Several Democratic-led states, namely Connecticut and California, have even moved to preemptively counteract laws that try to reach into other states.
In his concurrence in the Roe decision on Friday, Justice Brett Kavanaugh sought to reassure people by claiming that in his view, states can’t restrict interstate travel. But his writing did not address restrictions on travel enforced by civil lawsuits, as Drexel University law professor David Cohen told the Post. It seems like we could soon find out how serious Kavanaugh was about that right to travel.