Not content to simply ban abortion within state borders, Texas conservatives are now targeting people’s ability to travel out of state to get the procedure. Anti-abortion activists are working to pass laws that would make it illegal to drive someone on roads within the city or town if the end destination is an abortion clinic, according to chilling new reporting by the Washington Post. The goal is to keep women and pregnant people trapped in Texas and forced to give birth.
Activists are targeting Texas areas with airports and regions that include interstate highways to New Mexico, the only one of the four states that border Texas where abortion is still legal. The laws allow anyone to sue a person or organization they think has violated the ordinance, though the woman seeking the abortion would be exempt. The ordinances have already passed in two counties and two cities, but two others, Llano and Chandler, have tabled their votes amid opposition.
The effort is being led by activists Mark Lee Dickson and Jonathan Mitchell, the pair that advocated for S.B. 8, the six-week abortion ban enforced by bounty hunter lawsuits—that law was specifically designed to evade legal challenges. Dickson and Mitchell first went town by town before the state legislature introduced and passed its own version. (The Supreme Court let S.B. 8 take effect two years ago today.) They appear to be using the same tactic here, as 20 Texas state legislators reportedly support a statewide bill.
“This really is building a wall to stop abortion trafficking,” Dickson told the Post. Dickson is unburdened by the definition of coercion and claims that all abortion travel out of Texas is trafficking, because “the unborn child is always taken against their will.” He also thinks “trafficking” includes any material or logistical help, including the car ride and money to get the procedure. Dickson told a group of Llano residents that a “baby murdering cartel” was coming to the region. “By trains, planes and automobiles, I say we end abortion trafficking in the state of Texas,” he said. Yes, that’s war on drugs rhetoric.
To be crystal fucking clear, it’s not “trafficking” to help someone cross state lines to get an abortion that they themselves want. Dickson is trying to grant an embryo or fetus more legal rights than the human carrying it. Still, activists are weaponizing the term to make getting healthcare sound much more nefarious than it is and try to trap people in red states. Missouri tried to pass a travel ban before the Supreme Court overturned Roe v. Wade, but it stalled in the legislature. Earlier this year, Idaho passed a law that would criminalize people who help minors get abortions out of state. And just this week, Alabama’s attorney general said he can prosecute anyone who helps a pregnant person cross state lines for abortion as “criminal conspiracy.”
The Texas ordinances aren’t criminal; they would instead be enforced via civil lawsuits, but they apply to all abortion helpers, not just those aiding minors.
Dickson gave as an example that a husband who doesn’t want his wife to get an abortion could sue the friend who offers to drive her out of state. (Mitchell is currently representing a man suing his ex-wife’s friends for helping her get an abortion, which he only knew about because he intensely surveilled her.) When asked if this scheme was constitutional, Dickson cited the Mann Act of 1910, a federal law that makes it illegal to transport “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” Interesting that this law and another Dickson/Mitchell favorite, the Comstock Act, were passed before women could vote!
Mary Ziegler, a law professor at the University of California at Davis, told the Washington Post that the laws appear to violate the Constitution’s right to travel, they’re very difficult to challenge in court—just like S.B. 8, there’s no state official to sue. “Mitchell and Dickson are not necessarily conceding that what they’re doing is unconstitutional, but they’re making it very hard for anyone to do anything about it,” Ziegler said.
Texas abortion fund The Lilith Fund said the point is to simply scare people out of helping others get abortions. “The purpose of these laws is not to meaningfully enforce them,” said Neesha Davé, the fund’s executive director. “It’s the fear that’s the point. It’s the confusion that’s the point.” When S.B. 8 took effect, Texas clinics stopped providing abortions because lawsuits could bankrupt them.
These kinds of laws are insane, but so is the makeup of the federal courts that would hear any lawsuits trying to block them from taking effect. The chilling effect here is real, and people should be very worried.