The Supreme Court is yet to rule on the Mississippi 15-week abortion ban that many expect could lead to an end to Roe v. Wade. But the arguments in that case, and the court’s actions to allow the enforcement of a six-week ban of abortion under a Texas law, are already causing ripple effects. Conservative lawmakers sense that the court’s new far-right majority might allow laws that past courts would have struck down.
A lawmaker in Missouri has already been working this winter to get her state to pass legislation that purports to make it illegal for people from Missouri to go anywhere — Missouri, Illinois, New York, anywhere — to get an abortion. Legislation across the country restricting people’s ability to obtain abortions and obtain transgender-related healthcare, among many other topics, could be headed through a legal system with an increasingly reactionary Supreme Court setting legal rules for the nation.
Republican Missouri State Rep. Mary Elizabeth Coleman has introduced an amendment into the state’s House bills that would ban abortions in Missouri and bar people from providing abortions to Missouri citizens or residents or even helping them get abortions out of state, as first reported earlier this week by the Washington Post. The enforcement of this proposed ban, like Texas’ S.B. 8, would be through private lawsuits. The amendment serves as perhaps the starkest example yet of the changes the new Supreme Court majority has unleashed.
Although Coleman’s provision would seem to violate a lot of key constitutional principles — including the right to travel, federalism principles and traditional rules that states respect the laws of other states — a trio of law professors examining what the legal landscape would look like should the Supreme Court overturn Roe by June have concluded it’s entirely possible that such restrictions could be upheld by a majority of the current justices.
“We are skeptical, even though we believe these laws are unconstitutional under a number of different constitutional doctrines, that those arguments will win the day,” Rachel Rebouché, a professor at Temple University Beasley School of Law, told Grid in a Zoom conversation this week. Rebouché is one of the co-authors of “The New Abortion Battleground,” a draft article due to be published in the Columbia Law Review, that looks at what disputes are likely to arise should Roe be overturned.
Coleman’s amendment, which has been attached to three pieces of legislation still pending in the state House, prohibits people from performing abortions on Missouri citizens or residents, or helping them to obtain an abortion, “regardless of where the abortion is or will be performed.” The legislation also, as noted, includes a Texas S.B. 8-style provision, asserting that it will be “enforced exclusively through the private civil actions” — in other words, private lawsuits.
An aim of this scheme — as was successful in the case of S.B. 8 — is to prevent what are called “pre-enforcement challenges” to the law. Pre-enforcement challenges allow people to sue before a law takes effect to prevent any harm coming from an unconstitutional law passed by a legislature. In such challenges, a government official is ordered by a court not to enforce the law. With no government officials enforcing the law, the logic goes, there’s no one to order not to enforce it ahead of time. (What’s more, the measure also has made it more difficult to advance any broad legal challenges once the law goes into effect because there is no clear government official charged with enforcing the law to sue. Just this week, with S.B. 8, the Texas Supreme Court ruled that even state medical licensing officials do not enforce the law — one area where the Supreme Court had allowed challengers to move forward with litigation against the law.)
The Missouri amendment lays out a broad array of areas where the restrictions apply, including many kinds of “aid” outside of any actual medical procedure, including “providing transportation,” money or insurance coverage for an abortion; “giving instructions” to help a person with a medication abortion; or even “hosting or maintaining a website” that helps someone obtain an abortion.
Because the Supreme Court allowed S.B. 8 to go into effect last September — when the six-week abortion ban in the law was clearly unconstitutional — and the federal case from abortion providers challenging the law appeared to reach its end this week when the Texas Supreme Court ruled that the licensing officials don’t enforce the law, it should be expected that lawmakers will continue to attempt ever-more-aggressive measures to advance their policy aims.
Mallory Schwarz, the executive director of Pro-Choice Missouri, said that her organization believes that at least one of the underlying bills containing Coleman’s amendment — which relate to use of fetal tissue, payments for prescription drugs and use of state funds regarding abortion — “absolutely will pass the House, and the real fight will be in the Senate.” The legislative session goes until May, she said, although the lawmakers are now on break.
“What Mary Elizabeth Coleman is doing, and what these anti-abortion politicians are doing, is trying to use the power of the state, the power of their office to manipulate, to isolate and coerce people who are seeking abortions to maintain their own power and control,” she said.
The extreme nature of the legislation is underscored by the number of caveats written into the amendment itself. Many laws have what are referred to as “severability” provisions — language that asserts that, should part of a law be struck down as unconstitutional, it can be severed from the rest of the law, which will remain in effect. This amendment has an extensive severability provision, but it also does more.
In attempting to prevent portions of the law from being declared unconstitutional, it asserts that, despite its terms, it does not prohibit “speech or conduct protected by the First Amendment” or other conduct that the Constitution or federal law would bar Missouri from restricting. In other words, if the Supreme Court says that something that would appear to be covered by the language of the amendment is unconstitutional to prohibit, then the law doesn’t prohibit that specific speech or conduct. If the Supreme Court wanted to strongly protect the types of speech and conduct covered by the law, that could result in some big limits being placed on the amendment should it become law. But if the Supreme Court is willing to overturn Roe, and given the way it treated Texas’ S.B. 8, it might very well also allow this amendment, if enacted, to be broadly enforced by simply concluding that many, if not all, of the limits covered by the provision’s terms are constitutional.
All of that sounds — and is — extremely complicated. But that’s just the beginning.
David Cohen, one of the other co-authors of the forthcoming “New Abortion Battleground” article, explained why.
“I think that a lot of people are under the impression that things will be simpler if Roe is overturned because each state will just have their own policy, then you follow the policy of that state,” he said. “But our argument, and Missouri’s amendment introduced … is proof of what is going to happen. States are going to try to start controlling behavior outside of their states, and that’s going to pose really tricky, complicated questions — questions that we think have answers that should make them unconstitutional.”
Cohen, Rebouché and their co-author Greer Donley discuss how states could use existing criminal laws to enforce abortion restrictions after a decision overturning Roe — without even needing to pass new legislation like Coleman’s measure. As Rebouché noted, many states have laws that make clear that abortion will no longer be permitted or will even be criminalized should the Supreme Court overturn Roe.
Cohen, noting that all states already have broadly applicable laws banning aiding or abetting criminal activity, continued: “I think we will see a lot of state variation … but all it takes is an aggressive local prosecutor to try things.”
The underlying issue with what is referred to as “extraterritorial enforcement” of state laws, Rebouché said, is that the case law is “underdeveloped” in this area — particularly when it comes to abortion. There just aren’t a lot of cases addressing this issue, and supporters of legislation like Coleman’s argue that the Supreme Court language most directly addressing it — from a 1975 case — is “dicta,” meaning it’s not precedent because it wasn’t actually necessary to the court decision where the language appeared.
In any event, given the current Supreme Court majority’s willingness to overturn or ignore long-standing precedent, that might not matter.
“We think that things like the right to travel and national citizenship mean you should be able to take advantage of laws in other states,” Cohen said, “but we have no confidence that this Supreme Court would agree with that.” He said that concern is multiplied when it comes to abortion litigation and said his fear is that this could “result in a butchering of what we think are some basic principles of federalism and a unified country.”
It’s not only abortion where these issues could be raised. Legislation that passed the Idaho House earlier this week would criminalize providing gender-affirming care for minors in the state as a felony, with sentences of up to life in prison. The bill amends this new ban into existing law banning female genital mutilation, a law that also criminalizes taking a child out of the state for any such act. Although some advocates and reporting — including local reporting — stated that the travel prohibition would apply to gender-affirming care as well, the language passed by the House does not appear to have expanded that criminality to the gender-affirming care section. (Advocates have suggested this likely was a drafting error and that the aim was to prohibit travel for gender-affirming care.) The possibility and uncertainty nonetheless raised concern from many supporters of gender-affirming care in the wake of the House passage.
Either way, Cohen concluded that in light of these two proposals, “I think what we’re going to see is conservative legislators who are not satisfied with stopping certain actions in their home state.”
These lawmakers, he continued, appear to be willing to take steps outside of the norm to ensure that their conservative policies “have as broad effect as possible. … They can’t stop an abortion provider in New York from providing an abortion to a New Yorker, but maybe they can stop someone from Missouri from going to New York, or someone from Idaho from going to San Francisco, to get gender-affirming care.”
Schwarz also noted the cumulative effects of past laws with these new proposals, saying that it is those already most affected by Missouri’s existing abortion restrictions — only one abortion provider remains in the state — who will find themselves even more disadvantaged should Coleman’s amendment become law.
Highlighting the effects on low-income individuals — as well as young people, rural residents, people of color and LGBTQ people (groups that already face systemic issues of access to and discrimination in care) — Schwarz said, “These are the people already suffering with the existing barriers because they have to travel out of state as it is right now, and what [Coleman]’s trying to do is take away any kind of access to abortion but also any kind of support, any kind of emotional support for folks.” That is, Coleman’s amendment would place restrictions on family, friends and community members attempting to help those seeking abortions with money, travel assistance or even information.
Because the Supreme Court allowed Texas’ S.B. 8 to take effect despite its clear unconstitutionality, lawmakers aligned with those ideologies are going to be emboldened.
“What we have always known in Missouri is what the rest of the nation is starting to see now,” Schwarz said. “It’s that the courts won’t save us. We keep us safe.”
More broadly, regardless of what the courts do, the Supreme Court’s new majority is encouraging this sort of legislation, which Rebouché noted means instability will continue as litigation proceeds.
“Even if something is struck down as unconstitutional, there’s going to be years of confusion, of uncertainty that I think we can expect to see,” she said.
As long as that continues, lawmakers like Coleman will keep proposing new legislation testing the boundaries until they find a limit.