Post-roe legal battles on horizon
Possibility of litigation, criminal charges for those who travel out of state for abortions
The repeal of both Roe v. Wade and Planned Parenthood v. Casey could lead to a swath of legal battles between states over whether providers and patients could be held responsible for abortions that, had they occurred in an anti-abortion jurisdiction, would ignite either civil or criminal judicial proceedings.
State Sen. Alessandra Biaggi, D-bronx, and Assemblyman Chris Budrick, D-bedford, have introduced legislation that would create a cause of action, giving individuals coming to the state for reproductive or gender-affirming care civil protections if they were subjected to litigation or criminal charges upon returning to their home state.
In Connecticut, the state Legislature passed a similar bill. Lawmakers elsewhere are considering introducing legislation to protect providers and patients from laws in antiabortion states.
According to some legal experts, there hasn’t been much of a precedent to determine whether these laws would work. Under Article IV of the U.S. Constitution, states are required to assist each other in the enforcement of criminal laws. In addition, one state cannot be sued in another state’s court system because of immunity provisions.
Professor Roderick Hills from the New York University School of Law says that a cause of action in these cases could be best implemented against a private individual that tries to sue someone that had an abortion in a pro-choice state. Although it’s not that simple. For the law to work, New York would need to have “personal jurisdiction,” or some connection over the person that is trying to sue the individual that came to this state for the procedure, which the state Supreme Court could allow since the claim would be in response to an action that occurred here.
Assuming the original claimant didn’t show up to court, the state could issue a default judgment and take it to the antiabortion state, asking the courts to enforce a judgment issued in New York.
That state’s court could then consider the decision void because of the lack of personal jurisdiction over the claimant that initially filed the lawsuit.
However, Hills noted, the anti-abortion state might be required to comply with the court’s decision because of a constitutional rule requiring states to give “full faith and credit” to the judgments of other states.
“The question is whether either law can be enforced because the two states’ courts might not be able to get jurisdiction over the nonresident,” Hills said. “And that’s a federal question. That can go to the U.S. Supreme Court.”
That pertinent post-roe legal issue has only come up twice since the landmark 1973 U.S. Supreme Court decision, according to a forthcoming paper in Columbia Law Review authored by professors David S. Cohen, Greer Donley and Rachel Rebouché from Drexel University, University of Pittsburgh and Temple University, respectively.
In 1975, a case heard by the U.S. Supreme Court, Bigelow v. Commonwealth of Virginia, targeted a Virginia statute that barred publications from advertising abortion. A local weekly printed an ad for a service in New York, shortly after the state legalized the procedure, stating that it could refer people to providers in the northern state.
The case was considered a First Amendment issue, but the court added in its ruling that Virginia could not stop its residents from traveling to New York for the procedure or prosecute them for going there.
A Missouri state senator recently introduced legislation that would give private residents the ability to sue out-ofstate physicians and anyone that helps a pregnant person obtain the procedure in another jurisdiction.
The real fear, experts said, is that states begin passing legislation that would criminalize the actions of receiving or performing an abortion. Alabama has a law in place classifying abortion as murder and the Louisiana statehouse advanced legislation that would consider an abortion homicide.
The lack of state bills introduced that would protect pregnant people is concerning to Donley, the University of Pittsburgh law professor.
“It is a real problem that the patient who travels back home to Missouri afterward, or Texas, or the mother who helps her get there, all of a sudden, could, when they get home, be prosecuted theoretically, or (be) civilly liable,” Donley said.
It’s unclear if local pro-life organizations would consider the repeal of Roe v. Wade a local achievement since it could lead to an influx of individuals coming to the state for the procedure.
In a written statement, Kristen E. Curran, director of government relations at the New York State Catholic Conference, said: “We believe the state should focus on its own residents and making New York a more welcoming culture for women in crisis pregnancies who would choose to keep their babies if only they had the supports and resources they deserve.”