First, states will stretch the reach of their abortion penalties outside their borders. For instance, recent model legislation from the National Right to Life Committee extends application of state laws to minors who cross state lines to get an abortion, and legislators in states including Missouri, South Dakota, and Arkansas are debating potential bills that would make traveling to get an abortion difficult.
This strategy is legally suspect; a variety of constitutional provisions should curb states’ extraterritorial reach. In fact, Justice Brett Kavanaugh recognized a right to travel in his Dobbs concurrence, albeit just for the patient seeking services. But as the dissent in Dobbs points out, and as we have previously argued, it is not at all clear that federal courts would agree that cross-border laws are unconstitutional in this very undeveloped area of law. And even if it were clearer that states could not punish interstate abortion travel or target providers offering care to out-of-state residents, attempts to do so, even if stopped by the courts, might have a chilling effect. We are already seeing providers in some states limiting their offerings for out-of-state patients.
Second, people seeking abortions and the people assisting them, not just providers, will be targets of civil and criminal punishment. The same model legislation mentioned above recommends criminalizing anyone who aids or abets an abortion, a clause possibly broad enough to include someone who provides funds, offers a ride to the clinic, or helps with child care while a person receives abortion care, wherever it occurs. The grandmother who drives a minor to New Mexico from Texas could face legal repercussions when she returns home. Already, in Texas, prosecutors have threatened abortion funds with liability, causing some to stop offering help.
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