Abortion clinics fear they'll be targeted by out-of-state prosecutors
Many of Kristina Tocce’s patients drive or fly hundreds of miles to see her in Denver. Colorado is one of the strongholds for abortion services that are quickly disappearing elsewhere. But since Friday, when the Supreme Court overturned the landmark Roe v. Wade ruling, concerns over how anti-abortion states might try to stop her are always in the back of her mind.
“Now that we don’t have federal protection for abortion rights, who knows what surrounding states are going to do?” said Tocce, vice president and medical director of Planned Parenthood of the Rocky Mountains.
With Roe gone, and with it the constitutional right to abortion, doctors and clinics across the U.S. are worried about what, exactly, they can legally provide and whether anti-abortion legislators in one state can affect what is done in another.
Abortion will remain legal in at least 16 states and the District of Columbia. What’s unclear is whether states with bans will create new laws that either restrict residents from traveling for abortions or that target providers in other states.
So far, no states have imposed direct bans limiting women’s rights to seek abortions in other states. And even Supreme Court Justice Brett Kavanaugh, who voted with the majority in Friday’s ruling, said in a concurring opinion that states outlawing abortion may not bar residents from traveling to other states to terminate their pregnancies. Doing so would violate the right to interstate travel, he said.
Next abortion battleground
That hasn’t stopped some anti-abortion leaders from eyeing such restrictions as their next battleground.
In Texas, for example, conservative lawmakers are looking to curb out-of-state travel for the procedure. And 14 Republican state representatives vowed to introduce bills in the next legislative session to penalize companies that help employees access abortions.
Even without new legislation, legal scholars warn that anti-abortion states could use existing regulations to press criminal or civil charges against women who cross state lines to receive abortions or the individuals who help them do so.
“An aggressive prosecutor will try to be creative and use the laws on the books,” said David S. Cohen, a law professor at Drexel University Thomas R. Kline School of Law.
One way a local prosecutor could attempt to limit travel to states that protect abortion rights could be through the so-called effects doctrine, which restricts out-of-state conduct that could harm in-state interests, according to Cohen. States might also charge individuals with conspiracy to commit or aid an abortion, Cohen said.
Anti-abortion groups traditionally avoid prosecuting women, said Greer Donley, an assistant law professor at the University of Pittsburgh’s School of Law.
“It’s politically unpalatable,” she said.
That’s not to say that women are immune from legal proceedings. The National Advocates for Pregnant Women documented 1700 cases between 1973 and 2020 in which a women’s pregnancy was a “necessary element of the crime or a 'but for' reason for the coercive or punitive action taken.”
Targeting abortion funds
Abortion funds might also become targets. The potential legal consequences have caused some to rethink their approach. In response to Friday’s ruling, at least two groups in Texas — Lilith Fund for Reproductive Equity and Frontera Fund — paused the funding they provide women to secure abortions.
“We want to protect our abortion fund staff and volunteers to the greatest degree possible from the risk of arrest and involvement with the racist criminal justice system,” Lilith Fund wrote in a statement Friday.
Roe Fund, a group based in Oklahoma that provides financial help to people seeking abortions, paused funding over the weekend but is slowly revamping its operations after consulting with lawyers, said Susan Braselton, a board member. Legal counsel advised that they were likely in the clear to provide funds to women seeking abortions in other states, she said. Even so, she worries about her state’s aiding and abetting clause. Although the exact definition remains murky, that language could put the group at risk of civil suits.
“We’re all willing to take that chance,” Braselton said.
To protect against the possibility of anti-abortion states going after providers in places without bans, states like New York and Connecticut have already passed so-called shield laws.
Clinics elsewhere are seeking similar protections.
Mike Scheinberg, development director at Falls Church Healthcare Center in Virginia, said that such a law in his state would give providers an added level of protection.
But even shield laws may not prevent anti-abortion states from bringing charges against providers in places with the protections. That could tee up a legal battle between states. Rachel Rebouché, interim dean of Temple University Beasley School of Law, said the issue is an unsettled area of the law.
Risks facing providers, pregnant women, and abortion funds could increase over the next few months if anti-abortion states enact legislation targeting out-of-state procedures.
“We have concerns about legislation coming up in many restrictive states,” said Kristen Schultz, chief strategy and operations officer at Planned Parenthood of Illinois. Earlier this year, Missouri, just to the west of Illinois, mulled what would be the country’s most direct restrictions to out-of-state travel.
Even with the increased uncertainty, many abortion providers are focused on continuing to help women get the care they need.
For decades, Warren Hern, a Boulder, Colorado-based physician, has performed abortions on women who don’t live in his state. Hern, who specializes in late-term abortions, sees the added risks of a post-Roe world, but the threats haven’t deterred him.
“This is the work I do,” Hern said. “And I will continue doing it.”