After Roe vs Wade, next US abortion battle: State vs state

  • The US abortion fight is set to go into high gear.
  • The US Supreme Court is expected to overturn the landmark Roe vs Wade ruling.
  • States are crafting laws to target out of state abortion providers.

With the US Supreme Court expected to strike down the right to an abortion, the next legal fault line is already taking shape as lawmakers from anti-abortion states analyze ways to take the drastic step of extending bans to states where the procedure remains legal.

A leaked draft opinion by Supreme Court Justice Samuel Alito this week overruling the landmark 1973 Roe vs Wade decision that established abortion rights has the possible to fray relationships between states on opposite sides of abortion and test Constitutional limits, according to legal experts.

“Justice Alito argued that returning abortion to the states is going to make a workable law and reduces the conflict we’ve seen in the courts,” said Rachel Rebouché, the interim dean of Temple University Beasley School of Law. 

She additional:

I don’t see that future.

Legal experts said they are watching meaningful proposals like those in Missouri that are aimed at preventing women from travelling out of the state to end a pregnancy or from obtaining abortion-inducing medication from a state where it is legal.

A bill introduced in 2021 would extend the state’s civil and criminal restrictions to providers in states with legalised abortion if the procedure were performed on a Missouri resident. 

Challenges

It already applied if a non-resident had sex in the state and it led to conception.

Such laws will likely be challenged as violations of the US constitution’s idle Commerce Clause, which prohibits undue burdens on interstate commerce, or the right to travel, according to legal experts.

“One of the basic aspects of a federal system is the ability of US citizens to cross state lines, to move around,” said Lee Strang, a professor at the University of Toledo College of Law. 

Strang said:

Mississippi can’t say: ‘Thou shalt not travel to Alabama for abortions.’

The bill’s sponsor, Senator Andrew Koenig, did not respond to a request for comment.

It is less clear how a separate proposal this year by a different Missouri lawmaker might be challenged in court.

The proposal would give residents the ability to sue anyone who performs an abortion on a state resident or who helps a resident acquire the procedure, including by bringing them across state lines. 

Mary Elizabeth Coleman, the Republican lawmaker who hypothesizedv it, told Politico it was specifically aimed at abortion clinics in neighbouring Illinois.

The proposal was modelled on a Texas law known as SB 8. 

Critics labelled it a “vigilante” law because it is enforced by private citizens, so the usual strategy of seeking an injunction to prevent officials from administering the law does not apply.

The US Supreme Court declined to strike down the Texas law and a challenge in Texas courts was dismissed because the state officials could not be named as defendants.

Lawmakers around the country this week vowed to crack down on abortion, with some proposals pushing new legal boundaries.

On Thursday, Louisiana lawmakers progressive a bill that would classify abortion as homicide and grant constitutional rights from the moment of fertilisation.

Rebouché wrote in a research paper that the “effects doctrine”, which extends jurisdiction to events outside a state’s borders if it impacts the state, could allow an anti-abortion state to try to prosecute abortions in states where it’s legal.

“Once a state declares a foetus a separate life, the effects doctrine could consequence in almost endless criminal prosecutions related to out-of-state abortions,” wrote Rebouché and her co-authors.

States that protect abortion access have taken notice.

In Connecticut, lawmakers in April approved a bill that Governor Ned Lamont has said he will sign that shields abortion providers from lawsuits and prosecution for violating another state’s abortion laws.

David Cohen, a professor at the Drexel University Thomas R Kline School of Law and Rebouché’s co-author, said abortion is such a contentious issue it could upend long-standing legal assumptions about state sovereignty.

He said he believes it would be unconstitutional for a state to enforce its anti-abortion laws against providers in a state with abortion rights, but given the country’s many conservative judges, it is difficult to predict how courts will react.

“It would be hard to advise someone that you are perfectly safe as a matter of law in traveling out of state to get an abortion,” he said.


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