Texas’ short-lived prosecution of Lizelle Herrera, who was charged with murder for a self-induced abortion, is a preview of what’s to come if Roe v. Wade is overturned. The far-right bloc of justices has signaled their interest in overturning the precedent, and a decision is expected in June. When Roe is gone, 26 states will ban abortion. Across the country, red states are already building a new regime to mete out punishments for abortion providers, patients, and their families.
Lawmakers in several states have passed ever-more restrictive abortion bans, often using novel enforcement mechanisms that jeopardize the very concept of a federal constitutional right. Last year, Texas pioneered a model that has now been replicated in several other states with S.B. 8, the six-week ban that empowers private citizens to sue abortion providers and their “abettors” for $10,000 (plus attorneys’ fees). Idaho passed similar legislation that allows the family members of a terminated fetus to sue the abortion provider. Permissible plaintiffs include the relatives of a rapist who impregnates his victim, who can each sue the doctor for at least $20,000 (plus attorneys’ fees). Oklahoma is on the verge of passing an S.B. 8 copycat law authorizing strangers to sue providers and their “abettors.” It has already enacted a sweeping criminal ban on abortion with no exception for rape or incest that imposes up to a 10-year sentence and $100,000 fine on providers.
This approach is not entirely new. As Michele Goodwin documents in Policing the Womb, a number of women suspected of terminating their pregnancies—including those who experienced miscarriages and stillbirths—were charged with felonies in the days before Roe. When abortion is criminalized, every uterus is a possible crime scene.
What’s alarming about the rash of recent legislation, though, is how it extends this philosophy to its logical conclusion. The anti-abortion movement has moved beyond the legal regime of the early 1970s, which largely regulated abortion as a medical procedure, with penalties aimed at physicians. Today, the movement promotes fetal personhood, the notion that fetuses (and embryos) are legal persons who deserve equal rights—meaning their termination constitutes homicide. Red states are not just shutting down clinics. They are attempting to create a panopticon that surveils and punishes every individual involved in the termination of a pregnancy.
Conservative lawmakers who view abortion as homicide do not want it to be legal anywhere in America, and they are already trying to stop blue states, as well as the federal government, from facilitating it. Although the FDA has approved medication abortion, some states are seeking to outlaw abortion pills—deeming them a dangerous substance akin to narcotics and imposing yearslong prison sentences on anyone who distributes or possesses them. These drug-trafficking laws are bound to ensnare people who order the pills online, or transport them home from nearby blue states. The growing number of criminal charges against women who obtained an illegal medication abortion demonstrates that it is impossible to criminalize abortion pills without also criminalizing patients themselves. (There were nearly 1,300 criminal investigations of pregnancy outcomes between 2006 and 2020, when Roe was still on the books; that number will spike after it falls.)
Today’s anti-abortion movement has even proposed new laws that prevent people from crossing state lines to terminate a pregnancy. Republicans in Missouri are considering such legislation right now. Under the statute, Missouri’s citizens could sue doctors who perform an abortion on a Missouri resident in a different state—like neighboring Illinois, whose clinics serve countless Missourians. Missouri’s citizens could also sue anyone who facilitated the abortion, including the friend or family member who transported the patient across state lines. Similarly, in 2019, Georgia Republicans passed a sweeping law that appeared to impose criminal penalties on patients who traveled out of state for an abortion. The courts have put that law on hold, but the state may commence enforcement after Roe is overturned.
Is any of this legal? There is no way to say. The Supreme Court has never addressed whether states can bar their residents from traveling to another state to obtain a medical procedure, or punish out-of-state physicians who perform that procedure. When the Supreme Court refused to halt Texas’ S.B. 8 this fall, it signaled to other states that it would not halt creative schemes to nullify Roe. In December, during oral arguments in a case designed to overturn Roe, several justices all but announced that they will let states regulate abortion however they wish.
Jessie Hill, a professor at Case Western Reserve University School of Law, told me that “these sorts of attempts by states to regulate activity beyond their borders seem to directly contradict our most basic understandings about federalism and U.S. citizenship.” But, she added, “states are not always forbidden to regulate in ways that have an extraterritorial effect.” They may “have a strong argument that they are entitled to enforce their laws with respect to their own citizens.”
Here’s where the new goals of the anti-abortion movement matter most. If fetuses are legal “citizens,” then states could argue that they must be protected from out-of-state abortion providers. A red state might order a blue state to extradite an abortion provider (or patient) within its borders, dragging the judiciary into “complex, uncharted territory.” Or a red state could threaten to prosecute any provider who stepped inside its borders. Hill also pointed out that the Constitution also requires states to give “full faith and credit” to the judgments of other states’ courts. So if a Missouri court orders an Illinois doctor to pay damages for terminating a fetus from Missouri, the Illinois courts are, in theory, obligated to make him pay up.
California has taken these threats seriously. Its Legislature is likely to pass a bill prohibiting California courts from hearing or enforcing civil judgments issued in other states against people who perform or “abet” abortions. The measure would shield doctors from vigilante laws like Texas’ S.B. 8. It’s part of a package of legislation that seeks to shield California doctors and patients from anti-abortion crackdowns in other states.
These interstate clashes will inevitably trigger congressional action. Washington University School of Law professor Susan Frelich Appleton sees extraterritorial bans as a recipe for fierce conflict between the states. The bills, she said, “endanger our federal system, inviting chaos.” For decades, the Supreme Court has held that the Constitution protects Americans’ right to travel between states while limiting states’ ability to regulate conduct beyond their borders. Interstate abortion bans threaten these principles, creating “jurisdictional conflict and competition.” Appleton predicted that Congress would eventually have “no choice but to step in with a federal statute, using its authority to implement the Constitution’s Full Faith and Credit Clause.”
With Republicans expected to seize Congress in the midterms, the stage would be set for legislation ordering blue states to submit to red states’ extraterritorial abortion laws.
Republican-controlled state legislatures have shown a willingness to push the Supreme Court as far as they can. All constitutional rights depend on the courts for enforcement. And with its S.B. 8 decision, the Supreme Court announced that it would cease enforcing rights it did not favor. How far, exactly, will this five-justice bloc go in stripping constitutional safeguards from abortion providers and patients? Will it order blue states to extradite providers and their “abettors” to red states? Will it compel liberal state courts to enforce ruinous civil judgments against doctors who perform legal abortions?
These questions have no clear answer because our current moment has no precedent. For the first time in history, the Supreme Court is preparing to abolish a fundamental right that has been enshrined in law for nearly a half-century: the ability to terminate a pregnancy before viability without risking legal penalties. Never before has the court established an individual right, safeguarded it for 50 years, then abruptly cast it aside—greenlighting an overnight overhaul of civil and criminal laws in a majority of the states. It may be tempting to believe that, after Roe, the country will revert to the status quo ante: Many states will outlaw abortion, some states will permit it, and others will restrict it to limited circumstances. But the tidal wave of draconian laws across the country proves that this forecast is a fantasy.