States Want to Ban Abortions Beyond Their Borders. Here’s What Pro-Choice States Can Do.

A recently introduced Missouri provision would allow private citizens to sue anyone who helps a Missouri resident get an abortion in another state.

The provision is part of a wave of state anti-abortion legislation, some of it quite radical, that’s being considered in the months ahead of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization — the case that’s expected to severely compromise, if not entirely jettison, the nationwide right to abortion under Roe v. Wade. The result of such an outcome would be that about half the states in the country would ban nearly all abortions.

What’s alarming about the Missouri bill, and others like it, is that it suggests a new tactic in the coming abortion wars: Some states will go beyond banning abortion within their borders. They will try to impose their policy preferences on other states, in an attempt to stop their citizens from getting abortions anywhere at all. (A bill proposed last year would have applied Missouri law to many out-of-state abortions — even when the patient’s only connection to the state was having sex that resulted in a pregnancy there.)

Given that the federal government has so far failed to act decisively on this issue, it will be up to abortion-supportive states to determine the future of abortion law and access. Some such states have protected the right to abortion in their statutes or constitutions, and more have announced their intention to do so. But as the Missouri bill shows, abortion-supportive states must go further than keeping abortion legal within their state lines.

A suite of bills introduced in California has begun to chart a path to protect abortion providers and patients. But consider these additional steps that states can take. States can pass laws and regulations that protect abortion providers who offer services to out-of-state patients. All states have statutes that require their civil and criminal courts to assist in another state’s depositions, subpoenas and legal processes. Abortion-supportive states could amend these laws; such states could prohibit their courts from cooperating with out-of-state civil and criminal cases that stem from abortions that took place legally within their borders.

To further protect abortion providers, states could block their law enforcement agencies from cooperating with out-of-state investigations related to the provision of otherwise lawful abortions. And they could change their extradition laws to refuse to extradite abortion providers as long as they are not fleeing justice.

Abortion providers also will need protection from threats to their medical licenses and insurance status. States where abortion remains legal can instruct their medical boards and in-state malpractice insurance companies to abstain from taking any adverse action against providers who give out-of-state patients abortions that are legal in the provider’s state. This should apply to both patients that providers treat remotely with medication abortion and to patients who physically travel to their state.

There is no doubt that these actions could threaten basic principles of cooperation and comity that are required for a country of 50 states to function as a united whole. But these principles already have been frayed by anti-abortion states like Missouri attempting to legislate outside their borders.

States can also take stock of their existing abortion laws and remove any that unnecessarily impede access. For instance, many liberal states require minors to involve their parents in their abortion decision, and a few permit only doctors to provide abortions (even though it is safe for physicians assistants or nurse practitioners to offer such care). Also, most abortion-supportive states have needless reporting requirements that could be removed and gestational limits that could be extended — or at least waived for exceptions, like maternal health or severe fetal anomaly.

Removing unnecessary abortion barriers, a suggestion pushed by abortion rights advocates for years, takes on added importance now. In a post-Roe country, abortion-supportive states will see a dramatic increase in patients from places where abortion is banned. Already, the number of Texans traveling for abortions after S.B. 8, Texas’ ban on abortion after about six weeks of pregnancy, has strained capacity and delayed care from Kansas to Minnesota. Increasing the number of providers, reducing administrative burdens and streamlining care will help clinics serve this influx of patients.

Pooling the services of abortion providers across state lines is another way to help with what will surely become an overburdened abortion ecosystem — especially in abortion-supportive states that neighbor anti-abortion states. During the pandemic, many states enacted temporary measures that allowed out-of-state medical care professionals in good standing to treat patients in their states via telehealth. States could make the same allowancespecifically for medication abortion.

States seeking to protect abortion rights need to think seriously about financing abortion care. The legality of abortion is irrelevant to people who cannot afford it. More state Medicaid plans can cover abortion, and states can improve their reimbursement rate so that abortion clinics are fairly paid for the services they provide, a necessary precondition for remaining open to serve patients from all over the country.

Abortion access is already marked by race and class disparities, which will grow significantly when out-of-state abortion patients must travel hundreds, if not thousands, of miles to find care. State and local governments could help by directly subsidizing abortion clinics or supporting abortion funds that assist with patient costs. After all, for decades, anti-abortion states have financed anti-abortion crisis pregnancies centers.

Finally, states should enact versions of so-called Safe at Home laws, like those in New Jersey and California, which protect abortion providers’ home addresses from public discovery. In a post-Roe future, anti-abortion extremism is likely to rise, putting abortion providers operating in safe states at risk of being personally targeted.

State legislators who support reproductive rights and justice need to take steps to ensure that abortion access is not dependent on ZIP code and financial status and that abortion providers are protected. Without these concerted actions from supportive legislators, the post-Roe reality will be much worse than it has to be.

David S. Cohen is a professor of law at Drexel University’s Kline School of Law and a co-author of “Obstacle Course: The Everyday Struggle to Get an Abortion in America.” Greer Donley is an assistant professor of law at the University of Pittsburgh Law School, where her scholarship focuses on reproductive justice, bioethics and F.D.A. law. Rachel Rebouché is a professor of law and the interim dean of Temple University’s Beasley School of Law, where her scholarship focuses on reproductive health, family law and public health.

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