"Impossible to enforce": Attempts to ban abortion travel are scare tactics, legal expert says

Last week, a Tennessee Republican lawmaker proposed legislation that could imprison any adult who "recruits, harbors or transports" a pregnant minor to get out-of-state abortion care. Parents and legal guardians would be exempt, but any other adult helping a minor — say an aunt or friend or abortion care provider — despite receiving the minor’s permission, would be subject to the penalty of a Class C felony which is three to 15 years in jail.

In a press statement, Ashley Coffield in the release, CEO of Planned Parenthood of Tennessee and North Mississippi said such a measure would have a “chilling effect” on trusted adults and helpers who assist minors in accessing abortion care. It could be especially harmful to minors living in abusive households.

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"In a way, [these laws are] more symbolic than anything and they're meant to scare people."

This isn’t the first time “abortion trafficking” legislation has been proposed or passed. Most recently, a lawmaker in Oklahoma proposed a similar bill that could send anyone who helps a minor obtain abortion care to prison for up to five years. In Texas, city officials in Lubbock County, near the border of New Mexico, passed a measure that would, through lawsuits filed by private citizens, penalize people who help women obtain abortions in another state. In Idaho, an “abortion trafficking” law passed in April 2023 that would charge people who help a minor arrange an out-of-state-abortion with a felony of up to five years in prison, but a federal judge blocked it in November 2023. In 2021, Missouri lawmakers tried to include in a provision in an abortion bill that would have made it unlawful to assist someone in obtaining an out-of-state abortion.

It’s likely more of these proposed measures will surface as abortion ban states double down on anti-abortion legislation, but one legal expert says these laws are meant to scare people and they are very difficult to enforce if and when passed.

“It’s not like someone's driving through a county in a car with a big sign on the side of their car saying, ‘traveling to New Mexico to get an abortion,’” David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon. “In a way, they're more symbolic than anything and they're meant to scare people.”

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Cohen elaborated that many people travel from one state to another to do something that isn’t legal in their home state. For example, people travel to Las Vegas to gamble in casinos. People travel to states where adult-use cannabis is legal while posessing the same plant matter carries steep criminal penalties in their home state. A law that would criminalize people for traveling to another state to do something that is legal in that state should be unconstitutional, he said. But there currently isn’t the “clearest precedent from the U.S. Supreme Court on this issue,” he added.

“We’ve just never had a case addressing this exact issue before the Supreme Court, a state banning someone from traveling to another state, where the activity in the other state is legal,” he said. “So we don't have an exact precedent to say with certainty that this is unconstitutional or constitutional.”

"We don't have an exact precedent to say with certainty that this is unconstitutional or constitutional."

According to the Guttmacher Institute, there has been a rise in interstate travel for abortion care since Dobbs overturned Roe v. Wade in 2022 which triggered several abortion bans across the United States. The institute estimates one in five abortion patients traveled out of state for abortion care in 2023, compared to one in 10 who did so in 2020. Illinois, which borders Indiana, Kentucky and Missouri, saw the largest increase in the number of patients traveling from out of state for abortion care. New Mexico and Colorado saw the second and third largest spike in interstate travel.

In November 2023, the U.S. Justice Department filed a statement of interest stating that the Constitution protects the right to travel across state lines and engage in conduct that is lawful where it is happening.

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“The Reproductive Rights Task Force has been scrutinizing state laws and enforcement actions that threaten to infringe on federal protections of reproductive rights, including illegal attempts to prevent interstate travel,” said Associate Attorney General Vanita Gupta in a statement. “Today’s filing is just one part of the Justice Department’s ongoing work to use all available tools to safeguard reproductive freedoms protected by the Constitution and federal law.”

While lawmakers and lawyers fight these proposed measures and debate on their constitutionality, Cohen told Salon he fears that media coverage on them instill more fear in people living in abortion ban states.

“People hear about this and they think they're gonna get in trouble, so they don't do it or they just are really concerned about it,” he said. “I wish that all the articles that mention these travel bans mention that they are impossible to enforce, and that there's legal support for people if they get wrapped up in them, but the chances of anyone being wrapped up in them are incredibly low.”

He emphasizes that people are currently allowed to travel freely from state to state in the United States. That doesn’t mean that these laws would never be enforced, but he believes it’s a really low likelihood. If they were, Cohen said there is legal support willing to help these people.

“People should not be scared away from traveling to get the care they need,” he said. “Even in places where there may be some law on the books.”

"Impossible to enforce": Attempts to ban abortion travel are scare tactics, legal expert says

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