Bans Off Our Borders: Lessons from the Last Interstate Comity Crisis and What It Can Teach Maryland About Defending Abortion Travelers
Becky Burrow
The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization fulfilled a longtime conservative goal of overturning Roe v. Wade and its progeny, to the acclaim of pro-lifers and constitutional originalists alike. The majority characterized the nature of its ruling as restoring a historic right that Roe had repressed, wherein “the people and their elected representatives” may enact their views on abortion—whether that be protection or prohibition—through the political process rather than the courts. Despite the Court’s restorative intentions, the burgeoning post-Dobbs era is much more than a mere reinstatement of the pre-Roe landscape. The world has changed markedly since Roe was decided in 1973: Abortion pills have made self-managed abortion safer and more accessible, telehealth services have allowed prescriptions to be accessed anywhere, and advancements in sonography have improved the detection of fetal abnormalities earlier in pregnancy. Moreover, the digital era has given the state unprecedented surveillance tools, from browsing histories to period tracking mobile applications, which may give prosecutors the ability to monitor pregnancies and miscarriages to enforce abortion laws. Unprecedented legal challenges will define the future landscape of abortion—a landscape that will be further complicated by the fact that Dobbs has reinvigorated advocacy on both sides of the debate, leading to a proliferation of new state abortion laws, which create a complicated state-by-state landscape. A once national constitutional matter has become defined by geographies, lines on a map where fundamental liberties such as the right to life and the right to body autonomy may radically differ depending on what side of a border one finds oneself on; in consequence, this divergent landscape has created border wars.
Some states have taken up this newfound right granted by Dobbs, rushing to implement sometimes near-total abortion bans. For instance, Indiana and North Dakota have outlawed abortion starting at conception, Iowa has banned the procedure starting at fetal heartbeat, South Carolina has enacted a six-week ban, and both North Carolina and Nebraska have enacted twelve-week bans. Other states, such as Alabama in 2019, had passed abortion bans in anticipation of Dobbs that went into effect once the ruling was enacted. Still, states such as West Virginia and Wisconsin had holdover pre-Roe bans, or “trigger laws,” that went into effect immediately post-Dobbs.
Yet despite this legislation, abortion seekers can still, with relative ease, circumvent their home state’s legislation by merely traveling out of state to terminate their pregnancies. In response, post-Dobbs anti-abortion advocates have quickly pivoted their advocacy into two different strategies. The first strategy is exemplified by S. 4840, which was introduced in 2022 by Senator Lindsey Graham and seeks to implement some form of uniform abortion ban nationally. The second strategy, employed by state legislatures, attempts to dissuade citizens from traveling or helping others travel out of state to obtain an abortion, either by using the threat of civil litigation, like Texas’s S.B. 8, or by imposing criminal liability, like Idaho’s H.B. 242.
In his Dobbs concurrence, Justice Kavanaugh stated that he believed the Court’s decision would not grant states the right to enforce abortion bans beyond their borders. However, anti-abortion state legislation has attempted just that: Idaho’s anti-abortion law criminalizes aiding and abetting an abortion, with a provision specifically stating that “[i]t shall not be an affirmative defense . . . that the abortion provider or the abortion-inducing drug provider is located in another state.” While the Idaho law only applies to minors, lawmakers in Missouri have attempted to pass bills such as S.B. 603, which ban adults from getting out-of-state abortions if they are residents of Missouri, received prenatal care in Missouri at any point of the pregnancy, have a significant relationship with Missouri, and even includes those who had “[s]exual intercourse . . . within [Missouri] and [whose] child may have been conceived by that act of intercourse . . . .” The effort has also extended beyond state laws to local ordinances with a growing movement to establish “sanctuary cities for the unborn.” For example, in Texas, the city of Slaton passed an anti-abortion ordinance which bans aiding and abetting a city resident in getting an abortion, including “[a]bortions performed outside city limits.” There are also local efforts to outlaw using highways that pass through municipalities to obtain an abortion out of state. Still further, in Alabama, a state whose anti-abortion statute does not have explicit extraterritorial language, state attorney general Steve Marshall has made statements that he nonetheless believes the “general principles that apply to criminal law” would allow him to bring charges related to accessory liability and conspiracy against someone who “promot[es] themselves out as a funder of abortion out of state . . .”
A consequence of these extraterritorial laws is that they weaken the power of abortion-protecting states to enact their public policy by threatening their residents, visitors, and medical professionals alike. Physicians may be endangered by lawsuits or license discipline, patient confidentiality may be disturbed by subpoenas, and abortion fund donors may face liability for aiding or abetting an interstate abortion. Importantly, by complying with another state’s extraterritorial anti-abortion laws, abortion-protecting states are unable to treat travelers from other states like “welcome visitor[s]” with the same rights as the citizens of the state—a critical component of the federal right to travel.
Thus, in response, Maryland enacted the 2023 Reproductive Health Protection Act, which seeks to keep abortion bans away from the state’s borders by refusing to grant comity to any state laws that attempt to interfere with Maryland’s sovereign right to protect abortion within its territory. This act, along with similar shield laws passed in other states, blocks extradition, bars judges from ordering injunctions, and prevents state resources from being used to cooperate with these out-of-state proceedings.
Such laws and counter-laws have prompted an effort to reckon with this new reality via historical analogy—notably by comparing the current reality with the United States’ pre- and post-Civil War periods. Networks to help abortion seekers cross state lines have been likened to the Underground Railroad, Texas’s S.B. 8 has been described as creating a new class of slavecatchers, and abortion travel bans have been generally compared to the Fugitive Slave Act. Critics have subsequently rejected and derided any comparisons between abortion and slavery as being reductionist and, possibly, in bad taste.
In defense of these analogies, twenty-first-century constitutionalism increasingly demands the use of historical metaphors to apply the solutions of the past to the problems of the present. The Roberts Court’s continuous reliance on “history and tradition” has put many constitutional liberties on the chopping block if advocates cannot find some historical analogy to tie it to. It is, then, perhaps reasonable for abortion rights advocates to seek some form of historical analogy or constitutional anachronism to conceptualize this new reality and to defend this issue in the new post-Dobbs world.The nature of the post-Civil War Amendments means that any application invites, if not mandates, some analogy to slavery.
Comparisons to the pre- and post-Civil War era, are particularly appropriate here. While the issues at hand are very different, this historical period is marked by a similar clash of laws, where disagreements over a highly contentious political debate led to states refusing to recognize the legitimacy of each other’s laws. However, an obstacle to resolving present constitutional questions with the constitutionalism of the Civil War period is that this era resolved its constitutional crises through bloodshed, not jurisprudence. Thus, if one hopes to find jurisprudential answers to the question of extraterritorial abortion bans within American “history and tradition,” it is prudent to understand the Constitution that the framers of the Reconstruction Amendments hoped would resolve these types of comity issues were they to arise again.