Following President Joe Biden’s Friday executive order protecting abortion rights, a Planned Parenthood of Montana spokesperson tells Truthout the organization will not reverse its decision to discontinue providing medication abortion to patients traveling from states where abortion has been banned after the Supreme Court’s reversal of Roe v. Wade.
The organization, which operates five clinics in the state, had previously cited legal concerns about patients potentially traveling with abortion pills provided by Planned Parenthood of Montana clinics back home to states that have banned abortion, and then taking the pills there. The organization, however, is continuing to provide such patients with surgical abortion procedures (since they can guarantee the procedure happens in state).
While the safe and effective two-pill regimen may be given at a clinic in a state that has not banned abortions, like Montana, the patient could take one or both pills after returning home to a surrounding state like South Dakota, which is currently enforcing a total abortion ban. Despite President Biden’s executive order, legal questions remain regarding whether physicians who prescribed the pills could be held liable.
“Although we are encouraged by President Biden’s executive action, our decision to provide abortion care must continue to take into consideration the rapidly changing landscape for abortion access across the country and amid the cruel efforts of anti-abortion politicians to ban abortion,” said Laura Terrill, vice president of external affairs at Planned Parenthood of Montana. “We look forward to seeing how the executive order is implemented, including with respect to improving public awareness, addressing misinformation, and protecting people’s privacy.”
Planned Parenthood of Montana’s decision to remain firm on declining many out-of-state patients the most common type of abortion method underscores the legal uncertainty that remains after President Biden’s executive actions on Friday, and that will have to be resolved in courts one way or another. For now, some providers and patients are playing it safe in terms of guessing how far state prosecutors will go to criminalize the procedure beyond their own state border.
Their caution isn’t necessarily unreasonable. In fact, South Dakotans who travel to Montana for abortion could soon find themselves at risk even if their abortion occurs within Montana’s borders, as Republican South Dakota Gov. Kristi L. Noem has called a special session to discuss legislation to potentially restrict out-of-state abortions for South Dakota residents.
Legal experts with whom Truthout spoke say that while there’s plenty of legal precedent establishing the constitutional right to travel across states lines for medical procedures, and as President Biden’s executive order now establishes, abortion; the Supreme Court’s Dobbs v. Jackson Women’s Health Organization case has created legal gray areas in which lower courts could still create new precedent to prohibit people’s ability to travel for abortion. They’re also concerned that legislation like Texas’s Senate Bill 8, which contains an enforcement mechanism that allows individuals to sue anyone who has helped a person obtain an abortion, may significantly threaten abortion travel.
National anti-abortion groups and Republican state legislators are already advancing plans to stop people in states where abortion is now banned from seeking the procedure elsewhere. Republican Texas State Rep. Tom Oliverson told The Washington Post that his anti-abortion group, the National Association of Christian Lawmakers, has begun working with the authors of Texas’s SB 8 to explore model legislation utilizing the law’s novel private civil-enforcement mechanism to restrict people from crossing state lines for abortions.
A separate anti-abortion, right-wing legal group, The Thomas More Society, also hopes to utilize Texas’s SB 8 enforcement mechanism to draft model legislation for state lawmakers that would allow private citizens to sue anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside that state.
A July 7 letter from 11 Texas Freedom Caucus conservative Texas state legislators likewise outlines plans to introduce legislation next session that would utilize the private civil-enforcement mechanism to go after anyone who pays for or reimburses costs associated with abortion, regardless of where it occurs.
Groups like the Association of Christian Lawmakers are even utilizing the language of “fugitive moms” and “human trafficking” to describe abortion seekers, providers who administer abortions to people who travel across state lines and/or the people who help them. “Many of us have supported legislation to stop human trafficking,” Association President and Arkansas State Sen. Jason Rapert told the Post. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”
This kind of language offers important insights about how legal contests around interstate travel for abortion are likely to be framed moving forward, as well as how abortion rights advocates can work both inside and outside the legal realm to push back against them.
“Right now, legally, that [human trafficking terminology] doesn’t make any difference unless the courts start — which is I think the goal — to start viewing [cases] in that terminology, and it wouldn’t surprise me at all to see some right-wing judges start picking up on that terminology in their decisions,” says South Texas College of Law Professor Charles “Rocky” Rhodes.
Even within states like Texas, Republican legislators are looking for ways to blur jurisdictional lines. In the July 7 Texas Freedom Caucus letter, lawmakers said they plan to introduce a bill allowing anti-abortion district attorneys to prosecute abortion-related cases outside their home jurisdiction when a local, progressive DA “fails or refuses to do so.” Now, Texas Freedom Caucus lawmakers and others also want to extend that logic so that aggressive DAs can use prosecutorial discretion to read state laws in a way that tries to apply to people in other states, even without the new draft legislation specifically targeting travel.
Professor Rhodes tells Truthout he’s skeptical that courts would uphold a private civil-enforcement mechanism to prevent interstate travel for abortion since the question of the constitutional right itself is separate from its enforcement mechanism.
“If you have a constitutional right to go out of state and be able to have an abortion, the fact that the state enforces that through private mechanisms or through public mechanisms doesn’t matter,” Rhodes tells Truthout. “Either way, you still have the right, so you have to separate the substance of the right from the procedure about how rights are brought up in court.”
A law utilizing such a civil enforcement mechanism is more difficult to challenge in court overall because abortion rights groups don’t have a clear target to sue. However, Professor Rhodes explains that if the individual in question has a constitutional right, they will win the case, whomever they do decide to sue, and whether or not the case utilizes private or public enforcement.
Yet Rhodes concedes that when the right at issue is legally uncertain, SB 8-style private enforcement often has a chilling effect since providers and others are sometimes unwilling to take the risks involved with the legal fight for their constitutional rights. The very possibility of a large civil fine or unresolved legal questions is often enough to chill legal challenges entirely, as seems to be the case with Planned Parenthood of Montana’s precautionary withholding of services.
Still, in his concurring opinion in the Dobbs case, Supreme Court Justice Brett Kavanaugh rebuffed the idea that states could decide that their residents can’t travel out of state for an abortion, because of the constitutional right to interstate travel, writing that the issue isn’t even “especially difficult as a constitutional matter.” While this statement doesn’t carry any legal weight in terms of setting precedent, it could still inform decisions made by lower courts.
Justice Kavanaugh’s statement in his concurring opinion, however, appears limited to states trying to prevent their residents from traveling. It wouldn’t necessarily stop states from attempting to prosecute providers in others states, says University of Pittsburgh Assistant Professor Greer Donley, who specializes in medication abortion law and has closely studied the proposals now being floated to restrict abortion across state lines. Kavanaugh’s statement also fails to address the novel civil enforcement strategy out of Texas that is gaining traction in Republican legislatures, Donley points out.
Moreover, Donley notes that Justice Kavanaugh stated during his confirmation hearing that Roe was settled law, and then sided with the conservative majority in Dobbs to overturn it. “If there’s a real case involving real facts, [Kavanaugh] might end up coming out differently and saying, ‘Yes, generally there’s a right to travel in the Constitution, but given the facts here, it does not apply,’” Donley says.
When it comes to the issue of extra-territorial application of state laws, she says, the questions courts are going to consider are going to be entirely dependent on what states that have banned abortion do to try to apply their laws, and how strong the laws are in states that do allow abortion.
“A lot of the doctrines that both sides are going to rely on are unknown. They just don’t have a lot of precedent in this context at all, so we really have a lot of uncertainty. Truly, it’s a profound amount of uncertainty,” Donley tells Truthout. “We’re going to have to see what the courts do, and the courts are going to almost certainly disagree. And then, how [the courts] handle those disagreements is just another level of uncertainty.”
Much will come down to whether abortion-rights states have adequately protected themselves against cross-state prosecution. Only Connecticut, New York, Delaware and New Jersey have passed laws specifically shielding providers from being prosecuted under abortion restrictions passed in other states. Meanwhile, governors in Massachusetts, Minnesota, New Mexico and Nevada have issued executive orders saying they will not extradite providers to states that have banned abortion, and that state employees won’t comply with out-of-state investigations.
Donley described Connecticut’s shield law as the nation’s strongest protections, upon which other abortion-rights states could model their legislation. The law offers broad protections from anti-abortion laws that try to reach across state lines. The measures shield people from out-of-state summonses or subpoenas issued in cases related to legal abortions in Connecticut. The law also prevents Connecticut authorities from adhering to another state’s request to investigate or punish anyone involved in facilitating a legal in-state abortion.
At the federal level, President Biden’s Friday executive order formalizes instructions to the Departments of Justice and Health and Human Services (HHS) to combat state-level efforts to restrict pregnant people from traveling across state lines for abortion services and to protect access to federally approved abortion pills.
With the new executive order in place, providers like Planned Parenthood in states like Montana can be assured of at least some level of protection, since the order instructs medical providers that they are not required to disclose patients’ private health information to law enforcement.
Biden’s Justice Department has already warned states restricting abortion that it will fight legal attempts to prohibit interstate travel or prosecute providers in abortion-rights states, saying that such attempts violate the constitutional right to interstate travel and commerce.
Still, President Biden’s ability to protect abortion rights by executive action is limited without congressional action codifying abortion rights at the federal level. Biden’s executive order is expected to push HHS and the Justice Department to fight in court to protect abortion providers and seekers, but the order cannot guarantee courts will take their side against aggressive prosecution by states that have banned abortion. Additionally, the action does not protect people who seek abortion pills by mail from other states, which could still be criminalized.
Legal experts also point out that the Justice Department’s strategy of opposing Texas’s SB 8 six-week abortion ban ultimately failed, and that new state laws involving interstate travel could raise additional legal questions.
Donley tells Truthout that the federal government has an enormous amount of power to regulate interstate commerce, and that President Biden could do more at the executive level to attempt to regulate issues related to it, including declaring a public health emergency to support abortion access. “Certainly, if the federal government passed a statute that codified a right to travel, that would be a very, very, very helpful and preemptive thing for it to do,” she says.
Professor Donley also pointed out that the impacts of laws banning residents from traveling across state lines for abortion or cross-state prosecutions of providers are likely to have legal implications that go beyond abortion.
“Many of the proposals we’ve been hearing about for trying to chill interstate travel are using an SB 8-style mechanism to provide further removal from constitutional protections,” Donley says. “So, to the extent that states are allowed to prohibit travel or prosecute people in other states, the question does become: What other ways can states use those same mechanisms for other types of things?”