SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
supreme court
Could It Soon Be a Crime to Cross State Lines for an Abortion?
As law professors who teach about reproductive justice, we view attempts to restrict abortion travel as one of the frontiers in the anti-abortion rights movement, raising new legal questions for courts to unravel.
Sep 08, 2024
Almost half of the states in the country have made it harder to get an abortion since the Supreme Court in 2022 overturned the federal right to get an abortion. Fourteen states ban abortions in almost all circumstances, and another eight in almost all cases after 6 to 18 weeks of pregnancy.
Nonetheless, the number of abortions provided in the U.S. has actually grown since the court’s Dobbs v. Jackson Women’s Health Organization decision, rising 11% since 2020, to over 1 million abortions a year.
This increase can partially be explained by the fact that the number of people who crossed state lines to get abortions more than doubled from 81,000 in 2020 to 171,000 in 2023.
Justice Brett Kavanaugh wrote in the 2022 Dobbs decision that states cannot legally prevent their residents from going to another state to get an abortion, because he believes there is a “constitutional right to interstate travel.”
The U.S. Constitution does not, however, explicitly recognize a “right to interstate travel.” But the Supreme Court has issued decisions as far back as 1867 that can be interpreted to protect this right – and some scholars are confident that such a right exists.
But that hasn’t stopped states such as Idaho and Tennessee from enacting laws that make it harder to travel for an abortion – and some people have even attempted to legally punish their own partners for traveling to end a pregnancy.
As law professors who teach about reproductive justice, we view attempts to restrict abortion travel as one of the frontiers in the anti-abortion rights movement, raising new legal questions for courts to unravel.
States push to stop abortion travel
Idaho bans abortion at all stages of pregnancy. In April 2023, it also became the first state to impose travel restrictions with what it called an “abortion trafficking” law.
This law prevents people from helping minors who are not their children get abortions – without parental consent – including in another state.
Idaho’s attorney general has interpreted the law to mean that health care providers cannot refer patients to abortion clinics in other states. And based on this interpretation, the new law also means that a grandparent or teacher, for example, could not provide advice to a pregnant teenager.
An abortion access fund and a few others have challenged this law, saying that it violates the First Amendment and infringes on pregnant patients’ constitutional right to travel.
A federal district court temporarily blocked the law from going into effect in November 2023, but the case is currently being appealed at the 9th U.S. Circuit Court of Appeals.
More recently, in July 2024, Tennessee enacted copycat legislation, which is also being challenged.
Other states – Alabama, Mississippi and Oklahoma – have considered similar abortion trafficking laws but so far have not enacted any.
A spiraling effect
Idaho’s and Tennessee’s laws don’t directly prevent interstate travel, because they focus on people helping minors get an abortion. But some abortion rights activists still say these laws could lead to more explicit bans on interstate travel for abortion.
In the meantime, four Texas counties and a handful of Texas cities are imposing what they call “abortion trafficking laws.”
Under these laws, people can sue anyone who travels through their cities or counties to get an abortion in another state. Supporters of these laws describe “abortion trafficking” in broad terms, because as one anti-abortion activist has said, “the unborn child is always taken against their will” by a pregnant person.
This understanding of “abortion trafficking” effectively treats the fetus as a person, in line with other fetal personhood efforts by anti-abortion rights groups. They are also carefully crafted to avoid constitutional challenges.
In some cases, it is individual people, not states, who are trying to block people from traveling to get an abortion.
In February 2024, for example, a man named Collin Davis tried to prevent his ex-partner from traveling from Texas to Colorado to get an abortion.
While Davis failed to prevent the abortion, he later filed a lawsuit to investigate his ex-partner and people who assisted her in having the procedure. His goal is to “pursue wrongful-death claims against anyone involved in the killing of his unborn child.”
An uncertain future
As the courts consider whether it is legal to ban interstate travel for abortion, it is useful to consider the 1975 Supreme Court case, Bigelow v. Virginia.
This case materialized after a Virginia newspaper published an advertisement for an abortion clinic in New York. The state of Virginia convicted the managing editor for violating a Virginia law that made it a misdemeanor for any person “by publication, lecture, advertisement, or by the sale or circulation of any publication” to encourage getting an abortion.
The Supreme Court struck down the Virginia law as violating the First Amendment, and it also noted that Virginia could not “prevent its residents from traveling to New York to obtain” an abortion or “prosecute them for going there.” This language about the right to travel was not, however, essential to the court’s final decision, so it can’t necessarily be relied upon.
The Bigelow case was also decided just a few years after Roe v. Wade established a constitutional right to abortion. Such a right no longer exists after Dobbs.
This legal situation raises uncertainty about whether and how the Supreme Court would protect the right to travel for abortion.
States trying to protect abortion rights
There are approximately 22 states that have responded to other states’ abortion bans and other restrictive measures on interstate travel by adopting statutes called “shield” laws. These laws seek to prevent states with abortion bans from investigating their residents’ efforts to get an abortion in the shield state.
Along these same lines, the Biden administration issued a rule in 2024 that protects the privacy of people’s personal health information with respect to abortion when such care is legal.
The Dobbs decision returned the question of abortion to the states. But it has not settled many other legal issues related to abortion, such as whether there is a right to travel to get an abortion.
Keep ReadingShow Less
Air Force Dodges PFAS Water Cleanup in Arizona, Citing Supreme Court Chevron Ruling
"The floodgate begins to open," said one observer. "The U.S. Air Force refuses to clean up their toxic chemical contamination citing the termination of the Chevron doctrine by the corrupt Supreme Court."
Aug 12, 2024
The United States Air Force has so far refused to comply with an Environmental Protection Agency order to develop a cleanup plan for drinking water in Tucson, Arizona, citing the U.S. Supreme Court's June ruling that overturned the Chevron doctrine, The Guardianreported Monday.
Air Force bases contributed to the contamination of the drinking water with toxic per- and polyfluoroalkyl substances (PFAS), often known as "forever chemicals" because they accumulate in the body, breaking down only very slowly. The compounds, which were introduced by chemical companies in the mid-20th century, are associated with a wide range of serious health conditions, including cancer.
In late May, the EPA ordered the Air Force and the Arizona Air National Guard to clean up the PFAS contamination of groundwater at a 10-square-mile site in Tucson, giving them 60 days to develop a plan.
In late June, the Supreme Court eliminated the Chevron doctrine, also called Chevron deference, which gave federal agencies latitude to interpret laws and establish regulations, and required judges to generally defer to their expert judgment. The landmark ruling, brought by the court's right-wing majority, cut away at the executive branch's ability to regulate pollution.
Progressive advocates warned that it would lead to corporate-backed legal challenges to environmental and health rules. As it turned out, corporations were not the only organizations ready to take advantage of the ruling. On July 18, the Air Force's lawyers wrote to the EPA arguing that the May order should be withdrawn due to the elimination of the Chevron doctrine; Arizona Public Media service AZPMreported that the Air Force formally requested that the order be dropped.
The Air Force's challenge is a unique one in that it pits one arm of the U.S. executive branch against another, and won't go to the courts, but both scientists and legal experts warned that it could be a sign of the hard-nosed approach that polluters could take following the Chevron ruling that favors them.
"The floodgate begins to open," Chris Nagano, a former scientist at the Center for Biological Diversity and the U.S. Fish and Wildlife Service, wrote on social media in response to The Guardian's article. "The U.S. Air Force refuses to clean up their toxic chemical contamination citing the termination of the Chevron doctrine by the corrupt Supreme Court. I thought the Air Force was supposed to protect the American People?"
Deborah Ann Sivas, an environmental law expert at Stanford Law School, told The Guardian that the new ruling shouldn't affect the EPA's order and the Air Force seemed to be seeking to expand its scope to block regulatory action.
"It's very odd," she said. "It feels almost like an intimidation tactic, but it will be interesting to see if others take this approach and it bleeds over."
Legal experts say that, despite the Air Force's claim, the Supreme Court's recent ruling pertaining to Chevron shouldn't affect the EPA's enforcement actions, such as the May order—it should only affect the agency's rule-making process, The Guardian reported.
The order called for the Air Force and the Arizona Air National Guard to establish a filtration system designed specifically to remove PFAS, the estimated cost of which would be $25 million, or 0.1% of the Air Force's annual budget, the newspaper reported.
The affected 10-square-mile site is beneath Tucson International Airport, Air Force Plant #44, and the Morris Air National Guard base. It's been known to be extraordinarily polluted since long before the presence of PFAS was found—in fact, it was designated a Superfund site in the 1980s due to the presence of contaminants from solvents and degreasers.
Since 2016, samples from the site's groundwater have shown extraordinarily high levels of PFAS—as much as 53,000 parts per trillion, when the allowable legal limit for drinking water is between just 4 and 10 ppt, depending on the type of PFAS. However, a series of measures, including filtration, water diversion, and the closing of wells, have been taken so that such contaminated water is not in the local drinking supply.
There was a close call in 2021 in which contaminated water nearly breached the Tucson water supply, the EPA's order says, and though the city's water is currently safe, the issue remains concerning for locals, USA Todayreported in June. It's also creates added costs.
"When we have an area where the water quality is impacted and we're not able to serve that to customers, that is an added cost. It really diminishes the resource that we have available," Natalie DeRoock, a spokesperson for Tucson Water, the local utility, told USA Today. DeRoock said that while Tucson pumps in some water from the Colorado River, it depends largely on groundwater, a finite resource.
Keep ReadingShow Less
Supreme Court Puts Countless 'Lives at Risk' by Ruling Against Clean Air
"With this decision, the Supreme Court has abandoned any pretense of neutrality in cases involving environmental regulations," an expert said.
Jun 27, 2024
Health and environmental groups decried a U.S. Supreme Court decision on Thursday that suspended an air pollution rule with far-reaching implications set by the Environmental Protection Agency.
The justices ruled 5-4 in Ohio v. EPA to nullify the rule, designed to protect people in states downwind from smog-forming pollution, until the case can be decided on its merits in federal court, siding with the industrial polluters and upwind states who'd petitioned them to do so.
"With this decision, the Supreme Court has abandoned any pretense of neutrality in cases involving environmental regulations," Sam Sankar, a senior vice president at Earthjustice, an environmental law firm, said in a statement.
"The court's order puts thousands of lives at risk, forces downwind states to regulate their industries more tightly, and tells big polluters that it's open season on our environmental laws," he added.
A coalition of health and environmental groups, including Earthjustice, agreed that the ruling would have devastating effects.
"Today's decision is deeply disappointing," the coalition wrote in a joint statement. "It will result almost immediately in pollution that endangers the health of millions of people."
Initial thoughts on Ohio v. EPA - Justice Gorsuch's majority opinion reflects two longstanding trends in his environmental law jurisprudence: deep skepticism of agency experts and emphasis on state authority over environmental protection. You can read my analysis of these trends…
— Rachel Rothschild (@ProfRRothschild) June 27, 2024
The legal dispute stems from the EPA's 2015 ozone pollution regulations. States were required to issue plans showing compliance, and last year the EPA determined that 23 of the plans were insufficient, issuing its own plan for those states. The agency said that in 2026 alone, the multi-state plan would prevent about 1,300 premature deaths.
The EPA plan set off a flurry of legal challenges by fossil fuel companies, power companies, and related trade associations, as well as upwind states. Some challenges were successful in getting federal courts to temporarily suspend the EPA rules in individual states. However, the consolidated case, Ohio v. EPA, hasn't yet been heard by the Court of Appeals for the District of Columbia Circuit, and that court denied a request for a suspension of the rule in the meantime.
The plaintiffs then sought emergency relief from the rule at the Supreme Court, arguing that it could cost "hundreds of millions if not billions of dollars in costs over the next 12 to 18 months." The Supreme Court normally dismisses such relief requests, but in this case not only accepted the case onto its shadow docket, but took the unusual step of hearing oral arguments, which most shadow docket cases don't have, as they tend to deal with stays and injunctions, and not the fully-fledged merits of a case.
At the oral arguments, in February, Justice Ketanji Brown Jackson expressed concern that the case was even before the court, given that it hadn't even been heard on its merits by the D.C. Circuit court.
"What I’m a little concerned about is that really your argument is just boiling down to we think we have a meritorious claim and we don't want to have to follow the law while we’re challenging it," Jackson said to the plaintiffs' legal team. "And I don’t understand why every single person who is challenging a rule doesn’t have the same set of circumstances."
Jackson is one of three liberal justices on the court, but it was in fact conservative Justice Amy Coney Barrett who authored what The New York Times called a "spirited" dissent to Justice Neil Gorsuch's majority opinion.
"The court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits," Barrett wrote. "In so doing, the court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record."
Rachel Rothschild, a law professor at the University of Michigan, wrote on social media that Gorsuch's opinion drew on his "deep skepticism of agency experts and emphasis on state authority over environmental protection."
The conservative justices' aversion to agency expertise was also evident in both its 2022 ruling against the EPA's climate change rules and its 2023 ruling against the EPA's water pollution rules.
The Center for American Progress wrote in February that a loss in Ohio v. EPA would be another "devastating reversal" for the EPA as the agency struggles to assert "the authorities that Congress has explicitly granted it."
Keep ReadingShow Less
Most Popular