Democratic governors are fueling fears of a red-state crusade targeting women for criminal prosecution who travel out of state to terminate their pregnancies, but legal experts say such draconian scenarios are highly implausible, even “silly.”
“A state could not constitutionally prosecute a woman for leaving a state for an abortion. Such an action, even if attempted, would fail in a rapid and spectacular fashion in federal court,” said Jonathan Turley, a professor at George Washington University Law School.
“There are a host of legal and constitutional barriers to such an action,” Mr. Turley said. “There are serious issues facing women in states banning abortion, but this is not a credible threat.”
Even so, a dozen Democratic governors have signed executive orders or legislation barring cooperation with states seeking to reach across their borders for women traveling to states with abortion-friendly laws or the providers who perform their procedures.
For example, Washington Gov. Jay Inslee said in a June 30 directive that his state “will remain a sanctuary for any person seeking abortion care and services.”
“To that end, it is critical that our law enforcement agencies not cooperate in any manner with any out-of-state investigation, prosecution, or other legal action based on another state’s law that is inconsistent with Washington’s protections of the right to choose abortion and provide abortion-related care,” Mr. Inslee said.
Other states acting to counter the possibility of extradition orders include California, Colorado, Connecticut, Maine, Minnesota, Nevada, New Jersey, New Mexico, North Carolina and Rhode Island.
“As long as I’m governor, everyone in the state of New Mexico will be protected. Out-of-state residents seeking access will be protected, providers will be protected, and abortion is, and will continue to be, legal, safe and accessible,” New Mexico Gov. Michelle Lujan Grisham said at a June 27 press conference.
Josh Blackman, professor at South Texas College of Law, said the “extradition point is kind of silly.”
He noted that Texas officials don’t prosecute Texans for engaging in activity that is legal out of state — like marijuana use in Colorado or California — so it would be difficult for them to prosecute abortion providers or women leaving the jurisdiction and engaging in lawful conduct elsewhere.
“It’s entirely possible for states to try to criminally prosecute it. It’s not clear to me you can,” Mr. Blackman said. “It would be a radical shift in how law works.”
The Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization overruled nearly 50 years of precedent under Roe v. Wade giving women a national right to abortion, sent the issue to the states and touched off a legislative and legal scramble as lawmakers adjust to the post-Roe reality.
Justice Brett M. Kavanaugh signaled in his concurrence that women could still travel from state to state for the procedure.
“May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel,” Justice Kavanaugh wrote.
Many red states, though, had pro-life laws on the books that are now poised to take effect and impose criminal penalties on abortion providers. A 1974 Texas law also makes it a felony to furnish “the means for procuring an abortion,” which would include pro-choice groups that fund procedures, according to Republican state Rep. Briscoe Cain.
What red-state laws don’t do is target the pregnant woman. For example, the 2019 Alabama law barring most abortions makes it a felony for a provider to perform an illegal procedure, but specifically states that no woman seeking or undergoing an abortion “shall be criminally or civilly liable.”
Kristin Hamrick, spokesperson for Students for Life of America, said “we do not support prosecuting women but keeping the focus of law enforcement on those who have created a business out of ending innocent life,” echoing the views of leading pro-life organizations.
Peter Breen, vice president and senior counsel of the Thomas More Society, argued that the Dobbs decision buttresses the case for going after abortion providers because it found that a pregnant woman and unborn child “are two human lives.”
“You ask any lawyer in the country, can a state stop an adult resident from going across state lines to get a medical procedure? Of course, you’d say no,” Mr. Breen said. “But you ask, can a state regulate or prevent a child who’s a resident of that state from being taken across state line for sex trafficking, abuse or death, you’re going to get a different answer.”
He emphasized that shielding the pregnant woman from prosecution is paramount.
“Number one: Exempt the pregnant woman for any prosecution or liability under any of your abortion laws. Period,” Mr. Breen said. “Historically those laws have almost never been used against pregnant women. The target is the abortionist and those who act with the abortionist.”
Even so, Democrats continue to raise the specter of a pregnant woman being taken into custody at the state border or hauled back to her home state after crossing state lines.
County attorneys in Maryland have said they won’t work with conservative states seeking to prosecute women — or an abortion provider — performing the procedure on an out-of-state woman seeking to run around her own state ban.
Montgomery County State’s Attorney John McCarthy issued a statement last week saying his office “adopted a noncooperation policy with outside states that would attempt to criminalize the conduct of a woman who comes to Maryland to obtain a sue and legal abortion.”
Mr. McCarthy’s announcement said that “his office will not participate in the extradition of any woman who travels to Maryland as a safe haven in order to obtain an abortion.”
At least 90 state attorneys general and district attorneys have signed a statement refusing to enforce abortion criminal penalties, and they have enormous discretion, said Mike Lawlor, a criminal justice professor at the University of New Haven and a former Connecticut state legislator.
“You get this murky question about what if a prosecutor just refuses to go to the courtroom and handle the case,” Mr. Lawlor said. “Prosecutors have a lot of authority to do whatever they feel like, and they have immunity.”
It’s far more likely that red states and pro-life advocates will seek to discourage the out-of-state end-run by pushing for civil penalties on abortion.
One idea under consideration is allowing individuals to sue those who aid and abet abortion in violation of state law — even if the procedure is done out of state.
Last year, Texas included an aiding-and-abetting provision in its landmark 2021 fetal heartbeat bill. The law was upheld in court even before Roe was overturned because the measure is enforced by citizens in civil court — not by state officials.
Mr. Blackman agreed that it could be a more plausible legal route to hold abortion providers — or specifically employers funding the procedure for employees — accountable in civil court for violating state laws.
“A lot of these are going to be subject to lawsuits,” Mr. Blackman said.