Doubts Over Abortion Travel Bans Lead States to Try Other Means

Conservative lawmakers are threatening to enact a nationwide ban on abortion should they win decisively in November, and they’re doing their best in the interim to make it harder for people to end pregnancies even in states where it’s still lawful to do so.

One target is travel between states that have made abortion mostly illegal and those that still protect a right to abortion—travel that has picked up significantly since the US Supreme Court overturned Roe v. Wade in 2022’s Dobbs v. Jackson Women’s Health Organization.

Ending that travel is essential to the goal of eliminating abortion nationwide, said David S. Cohen, a professor at Drexel University’s Thomas R. Kline School of Law, who has a law review article on abortion travel bans.

There are no state laws that explicitly prohibit people from traveling from one state to another for that purpose, and people on both sides of the issue agree that a travel ban probably would be unconstitutional. But some anti-abortion states are experimenting with measures that could have the same effect, like laws that prohibit “trafficking” minors for abortion.

While trial courts haven’t been open to these tactics so far, upper-level judges mostly haven’t weighed in yet. A federal case in Alabama, for example, likely will eventually end up in the conservative-leaning US Court of Appeals for the Eleventh Circuit, which also reviews cases from federal courts in Florida and Georgia.

But the court action is picking up ahead of a national election in which abortion is expected to be a deciding issue for many voters.

State Law Conflicts

Abortion is nearly totally illegal in about half the states, meaning that it’s still legal in the other half. The constitutionality of state laws barring travel between states, however, is a question that’s “been debated by scholars for decades,” Cohen said.

The Supreme Court has never overturned a state law that impeded travel in these circumstances, although Justice Brett M. Kavanaugh, in his concurring opinion in Dobbs, said the US Constitution protects a right to interstate travel, he said.

Abortion travel is perfectly legal, Molly Duane, a senior staff attorney at the Center for Reproductive Rights, said. Talk of travel bans is “fear-mongering,” she said.

Ingrid Duran, director of state legislation for National Right to Life Committee, told Bloomberg Law that a broad travel ban for adults “would be wholly unconstitutional,” unenforceable, and ineffective at protecting unborn life. It wouldn’t be part of the group’s legislative strategy, she said, which is focused on trafficking bans.

Creative Alternatives

Constitutional questions aside, some states are now using other means to isolate and intimidate pregnant people to prevent them from going out of state for abortion care, according to Jamila Johnson, senior counsel at the Lawyering Project, a nonprofit group that advocates for reproductive rights.

For example, Alabama Attorney General Steve Marshall (R) threatened to use the state’s criminal conspiracy law to prosecute women who want to end pregnancies outside the state, along with people who help them. Judge Myron H. Thompson, of the US District Court for the Middle District of Alabama, allowed two of these “helper” groups to proceed with a lawsuit meant to stop Marshall from using the threat of prosecution as a de facto travel ban.

“Alabama can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here,” Thompson said in a May 6 opinion denying Marshall’s motion to dismiss the suit.

If Americans can’t travel freely throughout the US, then “we’re just a collection of 50 states, not a country,” Johnson said. And if states can lawfully ban people from traveling to other states to get legal abortion care, we’re “already in a dystopian future,” Duane added.

Marshall, however, has already accomplished his goal of “chilling” abortion advocacy in the state, Johnson said. The Alabama groups stopped helping pregnant women, she said.

Trafficking Bans

Duran’s group is promoting trafficking bans—so named because they’re modeled on state and federal laws that prohibit human trafficking—that would preclude adults from helping minors get abortion care without their parents’ knowledge and consent, whether in-state or out. It’s a “misconception” to call these provisions travel bans, she said.

So far, Idaho is the only state to have enacted an anti-abortion trafficking law, but Tennessee lawmakers adopted a similar statute in early May that’s been sent to Gov. Bill Lee (R) for his signature. These laws prohibit adults from recruiting, harboring, or transporting minors for abortions with the specific intent to conceal it from their parents.

Duran said she’d like to see them catch on in other states. Bills were introduced in Alabama and Oklahoma this year but didn’t advance.

Megan Wold, an attorney who helped lobby Idaho lawmakers to pass the bill, told Bloomberg Law that that statute is mean to protect parents’ right to care for their children and prevent teens from being coerced into ending pregnancies.

Idaho has a strict parental consent requirement, while two of its neighboring states—Washington and Oregon—do not, Duran said. The laws criminalize in-state conduct, and “zero in on” people like older boyfriends and human traffickers who take advantage of more-liberal neighboring state policies, she added.

Restrictions on minors, however, are often a starting point for states, Duane said. Laws aimed at interfering with minors’ abortion travel likely are just a “test run” for laws that prohibit helping adults, Johnson added.

Ninth Circuit judges hearing oral arguments in early May suggested they might affirm part of an injunction that appears to impede helpers’ free speech rights, but reverse it to the extent it precludes enforcement of provisions that seem to address conduct.

Legal developments in Texas aimed at making people believe that they’ll be risking liability if they have or help facilitate out-of-state abortions include using an unusual procedural tactic known as a Rule 202 petition, Duane said. That allows potential litigants to get information before filing a lawsuit, she said.

Her group is representing a Texas woman whose ex-boyfriend filed a petition to get information for a potential suit against his ex-wife in connection with an abortion she had in Colorado. The petition has been sealed to protect the woman’s privacy and safety, Duane added.

Additionally, several local Texas jurisdictions have enacted laws making it illegal to travel through them to obtain abortions, Duane said. Cohen doubted they can be enforced.

Actions like these are intended to “trap” pregnant people in states that leave them without options, Duane said. There’s no reason to believe they’ll stop, she said.