At least 26 states will ban most or all abortions if the Supreme Court overturns Roe v. Wade this summer, as it appears poised to do. Many blue states have strengthened abortion rights in the run-up to Roe’s potential demise. But few are planning for red states’ campaign to punish abortion providers and patients in places where it remains legal.
Connecticut, however, will not be caught off guard. On Tuesday, the state’s House of Representatives passed a bill spearheaded by Rep. Matt Blumenthal that would transform Connecticut into a sanctuary for legal abortion. The measure, H.B. 5414, bars state courts from enforcing another state’s penalties against someone who performed or facilitated an abortion that’s legal in Connecticut. It allows people sued under vigilante abortion bans, like Texas’ S.B. 8, to countersue in Connecticut court, collecting both damages and attorneys’ fees if they prevail. And it broadly prohibits state authorities from complying with another state’s request to investigate, penalize, or extradite individuals for providing or facilitating reproductive health services.
In short, H.B. 5414 fights fire with fire. It is the gold standard for pro-choice legislation in the post-Roe era. If it becomes law—and it probably will—H.B. 5414 will be the blueprint for every other state legislature that wants to fortify its own abortion laws against the coming red-state attacks.
In the run-up to the end of Roe, state legislators face a fundamental problem: States, as a general rule, enforce the judgments of other states’ courts. If a Texas court issued a $100,000 judgment against a defendant who flees to Connecticut, it will expect a Connecticut court to carry out that judgment. If the defendant won’t pay up, Texas might even expect Connecticut authorities to take coercive legal action—by, for instance, seizing the defendant’s property in the state. Similarly, if a Texas court convicts a criminal defendant who flees to Connecticut, it will demand that Connecticut extradite him back to Texas.
Some legislators are already plotting to exploit these principles of interstate comity to punish abortion providers (and “abettors”) far beyond their own borders. A Missouri proposal, for instance, would allow private citizens to sue anyone who performed or facilitated an abortion on a Missouri resident, even if they did so in another state. Oklahoma passed a criminal law that subjects physicians to 10 years’ imprisonment and a $100,000 fine for ending a pregnancy—and would undoubtedly direct other states to extradite those accused or charged with violating this prohibition.
By enshrining the principle of “fetal personhood,” states like Oklahoma are treating abortion as the same as the murder of a human being.
H.B. 5414 uses every tool at Connecticut’s disposal to fight back. Its overarching goal is to bar penalties against anyone who performed, facilitated, or obtained an abortion that’s legal under the state’s own (liberal) laws, even if the abortion occurred in another state. Consider, for example, Texas’ S.B. 8, which allows strangers to sue abortion providers and “abettors” for a minimum of $10,000 plus attorneys’ fees. Under H.B. 5414, no arm of the Connecticut government could investigate an individual accused of violating other state’s abortion restrictions, like S.B. 8, as long as they adhere to Connecticut law. If a red state like Missouri tried to punish Connecticut doctors for providing abortions to Missouri residents, they would be foiled. In fact, Connecticut authorities would even be barred from issuing subpoenas that relate to reproductive health care that’s legal in Connecticut.
Targets of anti-abortion lawsuits could also fight back. H.B. 5414 counters bans like S.B. 8 by creating a new cause of action: Anyone sued for providing reproductive services in Connecticut could turn around and file a countersuit. In other words, vigilantes seeking to collect a bounty from someone who performed or facilitated an abortion in Connecticut would open themselves up to legal liability. The target of the suit could collect the same damages that were levied against them by another state’s anti-abortion law. This provision applies with equal force to any individual who “abets” an abortion, like a mother who takes her daughter to Connecticut to terminate a pregnancy. The new crop of vigilante laws would subject that mother to private lawsuits. Under H.B. 5414, she could countersue in Connecticut court. If she prevails, she can collect damages and attorneys’ fees—not only the fees spent defending herself in her home state, but also the fees spent bringing suit in Connecticut.
Then there is the nonextradition clause, a necessary but chilling analog to free-state efforts to shelter fugitive slaves before the Civil War. This provision bars the governor from extraditing an individual to another state for performing or abetting reproductive health services that are lawful in Connecticut. To see why this safeguard is necessary, recall that an increasing number of states are establishing “fetal personhood” and recasting abortion as homicide. If a citizen of Oklahoma were murdered in Connecticut, Oklahoma could prosecute the killer and ask Connecticut to extradite him for trial. But what if the “victim” is a fetus, and the “killer” is an abortion provider? H.B. 5414 bars Connecticut from participating in any aspect of Oklahoma investigation or prosecution, and bars the governor from extraditing the abortion provider, as well as anyone who allegedly abetted them.
The ultimate aim of today’s anti-abortion movement is to outlaw abortion across the country. As a result, the next phase of the abortion wars will test the limits of red states’ ability to stretch their abortion bans into other jurisdictions in a bid to shutter, bankrupt, and imprison providers across the country. Connecticut’s new legislation stops them before they can get the chance. Given the stakes, more blue states will need to copy Connecticut’s playbook or risk opening their residents up to anti-abortion persecution after Roe falls.
