After Roe, many questions: Where the legal fight moves next

As the fallout from the U.S. Supreme Court’s decision to overturn Roe v. Wade continues to reverberate throughout America, a significant number of questions, both legal and logistical, have been thrust upon a nation now divided by the legal status of abortion care.

Half of states are moving rapidly to ban or severely restrict abortion. There are legal questions about the methods they will use to enforce these new laws, and the scope of criminal or civil liabilities for doctors, women, and facilitators. Interstate travel and the status of medications sent via U.S. mail or private courier are also part of the legal uncertainties that have emerged after the Supreme Court eliminated a constitutional right in place for almost half a century.

“There’s going to be a lot of legal questions surrounding these issues for quite a while,” says Jessie Hill, professor of law at Case Western Reserve University in Cleveland. “Right now, I think the big impression is that it’s just utter chaos from a legal perspective.”

Last week, President Joe Biden signed an executive order seeking to protect access to reproductive health services, including abortion pills and contraception, and the free flow of information about reproductive health care. On Monday, the Department of Health and Human Services said federal law requires doctors and hospitals to offer abortion services in the cases of medical emergency. The Biden administration also pledged to convene a network of pro bono attorneys to represent those who offer such services in the face of states seeking criminal or civil charges. 

Over a dozen states – including Arkansas, Idaho, Mississippi, North and South Dakota, and Texas – had “trigger laws” in place in anticipation of the June 24 decision. These banned abortion immediately or within 30 days. New bans in states such as Arizona and Kentucky have been challenged in state courts, while similar challenges have failed in Louisiana and Mississippi. Over all, some 26 states are expected to ban or severely restrict all forms of abortion.    

At the same time, states such as California, Connecticut, New York, Nevada, and Oregon are moving to protect or expand abortion rights – even providing funding to help those who travel from states that ban the procedure. These states also have countered possible legal maneuvers, passing laws that ban any cooperation with criminal or civil investigations against those seeking or performing abortions.

Will residents of states that ban abortion be able to travel to other states for the procedure?

While there are a number of proposals being floated, there are currently no state laws that explicitly prohibit or penalize those who seek abortion services in a different state.

In his concurring opinion overturning Roe, Justice Brett Kavanaugh signaled that such restrictions might be unconstitutional. “[May] a State bar a resident of that State from traveling to another State to obtain an abortion?” he wrote. “In my view, the answer is no based on the constitutional right to interstate travel.”

But the legal questions are not settled, says John Vile, professor of political science at Middle Tennessee State University. “The right to travel is an ‘unenumerated constitutional right,’ which is the major reason the court majority gave for overturning Roe.”

And this is a generally untested area of law, says Professor Hill. “Without a state passing a particular law on this issue of out of state travel, can they still interpret their existing statutes to enforce their laws beyond their borders, basically?” she says. “And then, what if states just go ahead and explicitly pass these travel restriction laws? I think at that point you do have these constitutional questions.”

In Missouri, Republican lawmakers have proposed a travel restriction bill modeled after Texas’ novel abortion law, SB8, which authorizes members of the public to bring a civil suit against people aiding a woman in obtaining an abortion, enabling anyone to collect a $10,000 bounty for each successful civil judgment. Similarly, the Missouri proposal allows members of the public to sue those who travel out of state to get an abortion and then potentially collect civil damages. 

Christian legal groups, too, are formulating model laws that would allow states to use civil courts to enforce abortion bans on citizens crossing state borders. Many Republican lawmakers are seeking legal ways to stop it. “Many of us have supported legislation to stop human trafficking,” Arkansas state Sen. Jason Rapert, president of the National Association of Christian Lawmakers, told The Washington Post. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”

Can states ban abortion medication sent via U.S. mail or private courier?

State laws banning abortion include all forms of the procedure, including the federally approved drugs that can induce an abortion in the first 10 weeks of pregnancy. Known as “medication abortion,” the combination of mifepristone and misoprostol currently makes up more than half of abortions performed annually in the United States, and demand has surged since June 24. Many experts believe medication abortion will become the center of legal battles in the post-Roe landscape.  

Before the Supreme Court ruling, states had different regulations governing the administration of abortion pills. Over 30 states required licensed physicians to administer the drugs, and most of these required a doctor to be present. In the middle of the pandemic, however, the Food and Drug Administration lifted those requirements, saying medications could be prescribed online and sent in the mail.

On Friday, President Biden’s executive order instructed the Department of Health and Human Services to “protect and expand” access to medication abortion, without giving specifics. Last month, U.S. Attorney General Merrick Garland said “states may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” In Mississippi, one manufacturer of abortion pills is suing the state, arguing that Mississippi’s regulations are unduly excessive and unlawfully preempting the FDA’s authority. 

These arguments are limited, however, says Professor Hill. “FDA approval does suggest that states might run afoul of federal law if they try to restrict distribution of the drug, or restrict mailing of the drug for reasons covered by FDA regulations,” says Professor Hill. “But if states are going to say, you can’t use the drug to end a pregnancy because abortion is illegal in this state, then that’s a very different thing. There’s not a strong argument that FDA approval somehow preempts that. In states where abortion is banned, it’s all banned.”

Women in the United States can already be prescribed medication abortion from doctors in Europe, however. Some American providers are already developing plans to provide abortion medication to those in states that ban abortion, and setting up supply chains. Using telehealth services and mail-forwarding services, a person could get a prescription online and then set up a mail forwarding address in a state where abortion is legal. The pills would then be automatically forwarded via mail or courier, masking the origin of the drugs.

How will states enforce bans?

Stopping medication abortion delivered via U.S. mail or private courier will prove an enormous challenge, especially since most states that allow abortion are promising not to cooperate with any investigations or subpoenas from those that don’t, experts say.

“And some women, unable to travel, will likely also seek illegal abortions,” says Dr. Vile. “This could lead, much like prohibition of alcohol in an earlier era, to widespread evasion and help from a criminal underworld. And much could ultimately rest with juries. Would a jury convict a woman for getting an abortion, even in pro-life states, if she had been raped, was the victim of incest, or faced an imminent threat to her health?”

Still, experts foresee a chilling effect on providers, even in states that permit abortions. In Montana, officials from Planned Parenthood preemptively restricted access to medication abortion from out of state travelers. Surrounded by four states that have recently banned or severely restricted abortion, clinics do not want to face the legal uncertainty of being held criminally or civilly liable. 

“There’s also a lot of uncertainty within these states about the health exceptions or the medical necessity exceptions in these bans on abortion,” says Professor Hill. “Providers and others will be extra cautious because you’re going to want to err on the side of not exposing yourself to criminal liability. Which won’t help women who need care, because the reality is that uncertainty often translates into a kind of chilling effect on provision of care.”

At the same time, some Democratic prosecutors in big cities located in states that ban abortion are vowing to refuse to bring charges. District attorneys in a number of states, including Georgia, Louisiana, Michigan, and Wisconsin have said they won’t prosecute cases under their new state bans. City officials in Austin, Texas, too, have proposed resolutions to not enforce the state’s ban. In response, some Republican lawmakers want to allow conservative prosecutors in outlying areas to prosecute crimes outside their jurisdictions.

Ms. Hill says that she has noticed widespread worry about digital surveillance – such as location services and period tracking apps that are not protected by federal health privacy laws; state government intrusions into private mail; and other efforts to prevent access to information about abortion.

But in pre-Roe America and other countries with restrictions, enforcement tended to be scattershot: “Someone shows up in the emergency room after an illegal abortion and they say, what happened?” Professor Hill says. “Or, someone finds out, like a parent or a partner who is not happy about a woman having an abortion, and they go to the police.”