Red state bans on travel for abortion spur legal challenges, face uncertainty

Efforts to prevent women from leaving abortion-restrictive states to terminate their pregnancies have provoked fierce opposition from pro-choice groups challenging them in court.

In Texas, which has banned most abortions after six weeks of gestation, three counties recently passed ordinances allowing private citizens to sue anyone transporting pregnant women on local highways for abortions: Mitchell County in West Texas, Goliad County in South Texas and rural Cochran County, which borders New Mexico, where abortion is legal.

Idaho enacted a law in May that forbids anyone from transporting pregnant minors across state lines without parental permission, punishable by a minimum of two years in prison.

In Alabama and Missouri, officials have threatened to punish anyone who helps residents get abortions in another state, including their physicians.

Pro-life advocates say such measures do not punish pregnant women directly for leaving a state — which would violate the Constitution — but only aim to deter blue states and medical providers from providing out-of-state abortion pills and surgeries. Critics say they intimidate pregnant women to stay where they are and infringe on the abortion laws of blue states.

“They don’t actually ban travel, but they have that effect,” Mary Ziegler, a law professor at the University of California, Davis, and a leading historian of the abortion debate, told The Washington Times. “Beyond that, the concern is about one state attempting to project its laws across state lines to tell another what to do.”

Michael New, an assistant professor of social research at the Catholic University of America and a scholar at the pro-life Charlotte Lozier Institute, said pro-lifers have carefully tailored recent legislation to punish only the accomplices of out-of-state abortions.

“The better political and legal framing of this issue would be to focus on preventing women from obtaining abortions from out-of-state doctors,” Mr. New told The Times. “Travel bans sound restrictive and punitive to many.”

All of the recent efforts have prompted lawsuits or threats of legal action from pro-choice groups, arguing such measures are unconstitutionally vague and subject to arbitrary enforcement.

However, constitutional law scholars say those legal battles are unlikely to reach the Supreme Court unless state officials criminally prosecute violators or a judge awards monetary damages in a civil lawsuit. So far, neither has happened.

Since the Supreme Court returned jurisdiction over abortion to the states in 2022, about half of the states have moved to limit the procedure and the other half have moved to make it widely available.

Last year, Idaho outlawed all abortions except for those involving rape and incest or risks to a mother’s life. 

Idaho’s travel ban, passed in May, is the first in the nation to describe “abortion trafficking” as a criminal felony. It empowers state prosecutors to seek two to five years in prison for any adult arrested for obtaining an abortion by “recruiting, harboring, or transporting” a minor with the intent of concealing it from the parents.

A lawsuit pending in a federal court in Boise says the law violates the constitutional right to interstate travel and First Amendment rights to “engage in expressive conduct, including providing monies and transportation (and other support) for pregnant minors traveling within and outside of Idaho.”

The office of Attorney General Raúl Labrador has pledged to “vigorously defend” the statute and said it does not comment on pending litigation.

In Alabama, which also has outlawed most abortions, lawyers for Attorney General Steve Marshall claimed in an Aug. 28 court filing that he could prosecute anyone helping women leave the state for abortions on the criminal charge of an “illegal conspiracy.”

The court filing responded to lawsuits filed in July by two women’s health centers that provide abortions and the Yellowhammer Fund, a pro-choice advocacy group. The suits argue that Mr. Marshall violated their constitutional rights by threatening them with criminal investigations.

Legal scholars say these cases may not go far in federal court without proof that the states have prevented anyone from traveling.

“They can’t really be challenged in court until they are enforced, and until then, they may dissuade some mothers from seeking to abort their children,” said Ronald J. Rychlak, a professor of law and government at the University of Mississippi School of Law. “That may be the real intent of the legislation.”

Limiting travel

According to constitutional law scholars, the only legal precedent for limiting domestic travel consists of 19th-century bans on slaves traveling without their master’s permission. In 1868, lawmakers ratified the 14th Amendment to the Constitution, enshrining the freedom of interstate travel as a fundamental right for all citizens in the aftermath of the Civil War.

Bans on interstate travel briefly resurfaced during the pandemic when some blue states with sweeping COVID-19 lockdowns tried to stop residents from traveling to states with less restrictive policies. As COVID spread, state troopers lined some highways to repel interstate commuters.

In New York, state officials issued a travel advisory that threatened residents with a $2,000 fine if they returned from states with high infection rates and did not complete a personalized health form. The policy remained in effect until June 2021.

In October 2021, the Miami Herald reported that the Biden administration was considering a domestic ban on travel to Florida, where Republican Gov. Ron DeSantis refused to shutter schools or require proof of vaccination as a condition for travel.

While the administration reportedly sought to prevent coronavirus variants from spreading, legal experts say there has never been any constitutional authority for domestic travel bans.

“On both the left and right, it’s about virtue-signaling that ‘we’re not only going to protect our people but stop others from behaving the wrong way,’ whatever that happens to be,” Josh Blackman, a constitutional law professor at South Texas College of Law in Houston, told The Times.

No American has been successfully prosecuted or sued for violating a travel ban related to COVID restrictions or abortion laws, Mr. Blackman noted.

Abortion considerations

Since the Supreme Court overturned Roe v. Wade last year, the political struggle over “abortion tourism” has escalated to a more intense level than the debate over COVID travel bans.

In July, 21 of the nation’s 24 Democratic governors met as a coalition in Los Angeles to devise ways to expand abortion access nationwide and help women from red states terminate pregnancies.

Among those states, California last year approved $20 million to bring in women seeking to end their pregnancies via surgery or pills. Others, including New Mexico, have fast-tracked the relocation of abortion clinics from neighboring red states like Texas to highly trafficked areas near state borders.

In response, conservative leaders in some states have threatened civil lawsuits against anyone working to provide out-of-state abortions.

Meanwhile, the Supreme Court in 2021 upheld Texas’ ban on abortions after a fetal heartbeat is detectable, thereby allowing private citizens to sue violators in civil court. That decision appeared to immunize similar laws from constitutional review, opening a loophole for travel restrictions.

Over the past few months, some Texas counties have likewise sought to keep pregnant women from traveling local highways to states offering abortion, citing a need to enforce the state law.

On Sept. 28, commissioners in Cochran County unanimously approved an ordinance that makes it illegal to knowingly transport women on local roads for abortions, punishable by private civil lawsuits.

Commissioners in Goliad County passed a similar ordinance on Aug. 28, after Mitchell County did the same in July.

In a copy of the Mitchell County ordinance that officials shared with The Times, the commissioners assert that “human life begins at conception” and call abortion “a murderous act of violence that purposefully and knowingly terminates an unborn human life.”

The ordinance threatens anyone who “aids and abets” an abortion, including surgery and pills obtained outside the county, with at least $10,000 in civil penalties.

The Cochran County ordinance encourages private lawsuits against cases of “abortion trafficking” on the Cochran County Airport runway in addition to local roads, said Mark Lee Dickson, the director of Right to Life East Texas.

In Missouri, a bill pending in the state Legislature seeks to imitate Texas by empowering similar lawsuits against those who “aid and abet” out-of-state abortions.

Elsewhere in Texas, however, similar proposals have stalled in the city governments of Llano and Chandler over legal concerns.

Additionally, no court has upheld a private lawsuit against abortion providers based on the 2021 Texas law.

According to legal scholars, abortion travel bans will face steep challenges in the Supreme Court if any lower court or law enforcement agency succeeds at enforcing them through civil or criminal penalties.

In the 2022 decision that returned jurisdiction over abortion to the states, conservative Justice Brett M. Kavanaugh wrote in his concurring opinion that it would not be “especially difficult” for the court to rule against pro-life laws that pushed the high court’s ruling too far.