Removing federal abortion-rights protections may spark new legal fights between states

Rachel Treisman

May 05, 2022 / 10:10 am

caption: People gather Tuesday at the Utah State Capitol to rally in support of abortion rights in Salt Lake City.

If the Supreme Court overturns Roe v. Wade, abortion law soon could be in the hands of states. And if that happens, roughly two dozen states are expected to ban or severely curtail abortion.

Some lawmakers also are trying to limit patients' options even in states without such restrictions. Several weeks ago, for instance, a Missouri state lawmaker introduced a bill that would let private citizens sue someone who helps a person cross state lines to obtain abortion care.

Such legislation raises a number of legal questions, NYU law professor Melissa Murray tells Morning Edition.

"The Supreme Court suggested that returning this to the states will settle this fraught conflict over abortion ... but it seems like it's really just going to exacerbate already existing conflicts and perhaps provide new conflicts that we haven't yet seen," she says.

Here are some of those battle lines (you can listen to the full interview here):

Can your state prohibit you from accessing care somewhere else? Individuals have "the right to travel," or move freely within various states. Murray says that there are some limitations, but that the idea of one state precluding someone from getting treatment in another state — or "basically imposing their public policy on the other state" — goes beyond existing limits.

She adds that many people don't realize that when the Supreme Court struck down a ban on interracial marriage in Loving v. Virginia in 1967, it was also striking down a law that made it a crime for people to leave the state to "transact interracial marriage elsewhere." Proposed laws like the one in Missouri are borrowing a page out of this same playbook, according to Murray, which raises the question: If another state offers a benefit your state does not, can yours prohibit you from leaving in order to seek that benefit, if you plan to return?

What does it mean to help someone cross state lines? That could mean driving someone to obtain an abortion in a more hospitable state, or potentially even donating money to an abortion fund that helps people do so. Murray says the latter could raise First Amendment issues around prohibiting that kind of assistance and, by extension, expression.

Some companies are offering to cover travel costs for employees seeking abortion care. Murray says that's legal for now, but that could change if terms like the one in this proposed law very broadly construe what it means to assist someone. That could be seen as a violation of corporations' rights to use their money how they choose. Murray points to Citizens United v. FEC and the idea that corporations can donate money as an expression of speech — and says that this too could become a First Amendment issue.

Would states be allowed to send and receive abortion medication through the mail? Some states are trying to minimize access to abortion medication, which Murray says raises questions in the realm of administrative law. While the Biden administration has rolled back the restrictions enacted by the Trump administration, Murray notes that individuals states can take action through their own administrative agencies that regulate the distribution of pharmaceuticals within their borders.

They potentially could limit those kinds of pharmaceuticals from coming in from other states, she says. And it's possible that a majority-conservative Congress could pass a law prohibiting the use of the mails to distribute abortion medications. That calls back to the Comstock Act of 1873, which prohibited the postal service from transmitting articles for "immoral" purposes.