The Looming Battle Between States if Roe Falls

If the U.S. Supreme Court leaves abortion policy up to the states, as indicated in a leaked draft court ruling Monday, there’s a good chance that states will start fighting each other over the scope of their abortion laws. Abortion opponents could make it illegal for people to go out of state for an abortion, while advocates for abortion rights try to create safe havens for residents of anti-abortion states.

A proposal from a Missouri state lawmaker already raised alarms among abortion rights advocates. Rep. Mary Elizabeth Coleman, a Republican, proposed legislation to allow private citizens to sue anyone who helps a Missouri resident get an abortion, including one that’s out of state.

“If a Missouri resident is hurt, even in Illinois, by a product that they bought in Illinois, there is still jurisdiction for them to sue in a Missouri court because that’s home for them … and this is extending that same kind of thought to abortion jurisprudence,” Coleman told Politico. (She did not respond to an interview request from Route Fifty Tuesday).

The legislation has not advanced in the Missouri legislature, but abortion rights advocates fear it or other measures like it could become more common in the most stridently anti-abortion state legislatures.

“We suspect that there will be a handful of states that are so anti-abortion, that they are going to use any tool at their disposal to try to prevent as many abortions as possible,” said Greer Donley, a law professor at the University of Pittsburgh and an expert on reproductive health care and the law. Donley was one of three authors of a paper that looks at the potential ramifications on state policy if the Supreme Court strikes down Roe v. Wade.

“Americans generally think that when they travel, they get to take advantage of another state’s laws,” Donley said. They flocked to Las Vegas when gambling was illegal in most states, and they headed to Colorado to enjoy recreational marijuana. “So it’s really surprising when people find that states would try to do this.”

While abortion policy has long been a top concern for state-level politicians, the issue gained new urgency after Politico published a draft opinion Monday night of a Supreme Court opinion that would strike down abortion protections that have been in place since January 1973.

“The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion,” Justice Samuel Alito wrote in the draft. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The growing concern about the fallout of Roe being struck down has already been felt in state capitols.

In Connecticut, lawmakers last week approved a bill that both protects out-of-state clinicians from prosecution and provides a “safe harbor” to women from states that restrict abortions. The measure, which won support from some Republicans, also expands the types of providers who can perform abortions to include nurse practitioners and physician assistants.

Jillian Gilchrest, a Democratic state representative and co-chair of the legislature's reproductive rights caucus, said the Connecticut bill could serve as a model for other states.

“We’re going to be able to protect and serve as a refuge for individuals from across the country seeking safe abortion care,” Gilchrest said. 

Gilchrest said Planned Parenthood officials in Hartford told her the clinic there has treated women from Texas, where abortion access is severely restricted and would be banned altogether – except to save the life of the mother – should Roe be overturned.

“It really now is a West Coast/Northeast safety zone for individuals seeking abortion care,'' Gilchrest said. “While I’m proud Connecticut – and Massachusetts and New York and California – are doing the right thing, it’s disappointing to see women’s rights restricted in such harsh ways across the country.”

Democratic Gov. Ned Lamont has pledged to sign the Connecticut bill; it would take effect on July 1.

Other States Offer Similar Plans

Lawmakers in California and New York are considering similar proposals.

Illinois state Rep. Maura Hirschauer, a Democrat, sponsored a measure this session that would protect physicians who are licensed in Illinois and other states. If the other state disciplines the doctor for providing abortions, Illinois regulators would not, under her proposal. It passed the House but not the Senate before lawmakers adjourned last month. Hirschauer said the upper chamber could take it up when legislators reconvene in Springfield this November.

“We can’t protect an Illinois doctor who holds a dual license in Missouri from being sanctioned in Missouri, but what we can do is make sure that, when they’re practicing in Illinois, they are not disciplined for providing abortion services,” she said.

“It’s a small step,” Hirschauer said, “but we are creating safety in Illinois for providers who have licenses in other places.”

Illinois could be on the forefront of interstate battles over abortion policy. It is essentially an island among Midwest states that would continue to allow abortion if Roe is overturned. In fact, Planned Parenthood opened a major facility in 2019 in the Illinois suburbs of St. Louis that offers services to thousands of Missouri patients, as Missouri lawmakers have made it increasingly difficult to get an abortion there.

Another area that states are likely to be at odds over is mail-order prescriptions for prescription drugs, noted Donley, the law professor. Patients can meet with a doctor online and then receive their medication, which has been approved by the Food and Drug Administration.

Donley and her coauthors have argued that the Biden administration should challenge state laws that restrict access to mifepristone, on the grounds that they are preempted by federal law.  

Democratic Governors Respond

On Tuesday, 17 Democratic governors encouraged the U.S. Senate to pass a federal law guaranteeing the right to abortion, which would largely take matter of out of state hands. But there does not appear to be sufficient support in the evenly divided Senate for that measure to pass.

Meanwhile, state advocates that have pushed abortion restrictions for decades were encouraged by the potential that Roe could be overturned.

North Dakota and at least a dozen other states have passed “trigger laws” that will allow state officials to move forward with an abortion ban almost immediately after Roe is struck down. “Once the decision is approved by the Supreme Court [that would] allow the abortion issue to be taken back to the states, North Dakota is prepared to become an abortion-free state,'' said McKenzie McCoy, executive director of North Dakota Right to Life, the state's largest anti-abortion group.

“We’re very optimistic,” McCoy said. “We have been in this fight to protect life in North Dakota for over 50 years and this is what we were working for and praying for. … We’re excited and hopeful and we’re ready.”