Red States Aren't Going To Be Satisfied With Overturning Roe. Next Up: Travel Bans. - Above the Law

The conservative project of the last 50 years is clear — overturn Roe v. Wade. Undoing abortion rights has been a core of the far right, pretty much since the moment those rights were recognized by the Supreme Court. Now that the right-wing goal is about to be realized, you’d think it’d be a moment for celebration for those who want to turn back the clock on fundamental rights — well, once they’re done playing victim over the leaked draft decision.

But when it comes to limiting bodily autonomy, the right works harder than Kris Jenner. David S. Cohen, professor at Drexel University’s Thomas R. Kline School of Law, tells Bloomberg Law overturning Roe is only the tip of the iceberg. He believes “the next frontier in anti-abortion legislation” will be red states trying to limit abortion access outside of their borders: “It’s going to be an invitation to states to innovate in restricting and banning abortion.” He continues, “There are going to be a number of states who are not satisfied with just knowing that there’s no abortion happening in their own state. They’re going to want to do more than that.”

That’s… fairly awful. Now, a travel ban barring individuals from traveling to other states to access abortion care might strike lawyers as pretty unconstitutional. After all, there’s individual liberty and a right to travel impacted there, not to mention the dormant commerce clause.

“Unfortunately, there’s no real clear precedent on this issue,” Cohen said. “A particularly anti-abortion court like we have at the U.S. Supreme Court, I think, might find enough wiggle room in the past cases to say it’s not unconstitutional because states are allowed to have extraterritorial effect of their laws.”

Plus the Texas/S.B. 8 model has already been tried in this context. (Thanks, shadow docket!) Pre-overturning Roe, Missouri state Rep. Mary Elizabeth Coleman tried to pass a law that would allow private citizens to sue over performing an abortion or helping a pregnant person get one — even if the procedure was outside Missouri.

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Though at the time it was unsuccessful, a similar option could be in the works. Sam Lee, director of Campaign Life Missouri, told Bloomberg, “I think it’s something we will look at, but I think it needs some work.”

And an anonymous attorney working on abortion litigation said this may be the way forward for anti-abortion activists:

“That’s the only plausible strategy I can see for anti-abortion lawmakers if they want to stop abortion tourism,” the attorney said. “If they just say it’s illegal to leave the state to get an abortion, someone can sue and challenge the constitutionality of the statute. If they do it the way Mary Elizabeth Coleman drafted it, by this sort of private civil enforcement, it can’t be challenged in court pre-enforcement.”

So, there’s this fresh hell to look forward to.