Abortion travel bans: Coming soon to a red state near you?

Abortion is a losing issue for Republicans.

The evidence is beyond a reasonable doubt. In election after election, they’ve been slapped down.

Kansas voted down an abortion ban. Gov. Glenn Youngkin’s support for a “reasonable” 15-week ban cost him the Virginia legislature. Gov. Andy Beshear won reelection in Kentucky with a devastating ad about how his opponent would have forced a pre-teen girl raped by her stepfather to give birth. The people of Ohio passed a constitutional amendment protecting abortion rights, infuriating the state’s Republican legislators (who’ve already announced they intend to try to nullify the will of their own voters—more on this soon, no doubt).

Are they giving up? No.

Despite these blistering rebukes from voters, Republican politicians refuse to relent. They’re preparing an even more draconian set of laws to strip reproductive freedom away from the American people.

The right to travel

So far, America’s federalist structure has kept the full weight of abortion bans from crashing down on women. While red states seized on their chance to outlaw or heavily restrict abortion, most blue states have protected and expanded abortion rights. People in red states who need an abortion can travel to the nearest safe haven (assuming, of course, that they have the money, the resources and the time). In fact, U.S. abortion rates have increased since the Dobbs decision.

Religious conservatives in red states are disgruntled by this, and they’re trying to stop it. They can’t control what blue states do—but they want to make it illegal to travel out of state to get an abortion, and prosecute those who help women do this.

For example, in Alabama:

Alabama’s Republican attorney general said in a court filing that he has the right to prosecute people who make travel arrangements for pregnant women to have out-of-state abortions.

In a court filing Monday, attorneys for Attorney General Steve Marshall wrote that providing transportation for women in Alabama to leave the state to get an abortion could amount to a “criminal conspiracy.”

“Alabama attorney general says he has right to prosecute people who facilitate travel for out-of-state abortions.” Andy Rose, CNN, 31 August 2023.

And in Texas:

Commissioners in Lubbock County, Texas, on Monday voted to outlaw the act of transporting another person along their roads for an abortion, part of a strategy by conservative activists to further restrict abortion since the U.S. Supreme Court overturned Roe v. Wade.

The move makes Lubbock the biggest jurisdiction yet to pass such a restriction on abortion-related transportation since the June 2022 end of Roe, which had granted a nationwide right to abortion. Six cities and counties in Texas have passed the bans, out of nine that have considered them.

A few hours north, the Amarillo City Council on Tuesday will weigh its own law, which could lead to a future council or city-wide vote.

Lubbock and Amarillo are both traversed by major highways that connect Texas, which has one of the country’s most stringent abortion laws, to neighboring New Mexico, where abortion is legal.

“Fight over Texas anti-abortion transport bans reaches biggest battlegrounds yet.” Julia Harte, Reuters, 24 October 2023.

In Missouri, too, an anti-abortion travel ban has been proposed by state lawmakers. Idaho has made it a crime—”abortion trafficking”—to take a minor out of state for an abortion.

The logic, such as it is, of these religious conservatives is that abortion is illegal in their states, and even if the act itself occurs where it’s legal, traveling out of state constitutes the crime of “conspiracy to obtain an abortion”. Thus, they believe they can criminally prosecute both women who get an abortion and anyone who helps them travel to do so.

States’ rights

If these anti-abortion travel bans are allowed to stand by the courts, the result will be national chaos. It would be a backdoor for each state to enforce its policy preferences on all the others.

What if a red state decided to outlaw gambling, and sought to arrest people who go on a weekend trip to Las Vegas? Could Utah, a famously dry state, ban alcohol and prosecute people who crossed state lines to go to a bar, for “conspiring” to obtain booze? Could enthusiastic book-banning states like Texas make it illegal to read books on their blacklists, even in a library in another state?

It works the other way, too. What about anti-gun blue states? Could California, New York or Illinois outlaw firearms and make it illegal to travel on state roads to go to an out-of-state shooting range?

Historically informed readers will notice a parallel. Southern apologists claim the U.S. Civil War was fought to protect “states’ rights”, but in fact, the opposite is true. The slaveholding states wanted to enforce their beliefs on all states, whatever the people in those other states thought about it.

They tried to achieve this with laws such as the Fugitive Slave Act of 1850, which decreed that an enslaved person who escaped and made it to a free state didn’t become free. On the contrary, it (attempted to) require people in free states to help capture the runaways and return them to slavery.

These laws stirred up massive outrage from people in the North, who resented being told that they had to enforce an oppressive legal regime they didn’t vote for or agree with. It was one of the major sources of enmity that led into the Civil War.

How would you enforce a travel ban?

For all the yelling they do about freedom, anti-abortion conservatives are eagerly starting down a short path to dictatorship. To prevent women from traveling out of state for an abortion would require a truly dystopian apparatus of surveillance and control.

Every red state would have to become a mini-Gilead, with checkpoints at every airport, harbor and interstate road. They’d have to hire an army of brownshirts to detain and interrogate women about where they were going and why (or, in the most nightmarish scenario, forcibly administer pregnancy tests), and force them to go home if their answers weren’t convincing enough.

Anyone who could get pregnant would be under perpetual house arrest. They’d be unable to set foot on any public sidewalk or road without a pass from a husband or an employer. No airline or taxi or bus company would be willing to transport them, for fear of prosecution. It would be a theocratic prison state like Saudi Arabia or the Taliban.

The good news—such as it is—is that it doesn’t seem Republicans have any plans to do this. At least for the time being, that would be too intrusive and extreme even for them to swallow.

Instead, it’s more likely that travel bans will be used as a tool of fear and arbitrary enforcement. They’ll make examples of a few cases that come to their attention, mostly poor and minority women turned in by jealous ex-partners or controlling relatives, while the rich and the well-connected get off lightly.

There’s historical precedent for that. It’s exactly how the nineteenth-century Comstock Act was enforced:

The Comstock Act had sweeping potential when it passed in 1873, able to be interpreted to cover information, drugs, and devices related to abortion or contraception, as well as anything else deemed obscene. But in the 19th and early 20th centuries, law-enforcement officers and postal inspectors didn’t have access to the reams of digital data available today. Catching those who published newsletters or put information on the outside of an envelope was easy; most people sending abortion or contraception materials quickly learned to use sealed envelopes. And to open an envelope, investigators needed a warrant.

But anti-vice crusaders found two ways around this problem. First, they tapped into a network of tipsters and detectives—people who deceived potential abortion providers, pretending to be patients or their loved ones to gather evidence for potential prosecutions. Anthony Comstock, a former dry-goods salesman and anti-vice activist who lobbied for the law named after him (and who became a special agent for the U.S. Postal Service in enforcing the act), perfected the art of decoy letters and disguises, looking for evidence that could be turned over to postal inspectors or police.

Second, they relied on personal vendettas and animosities: angry ex-lovers, controlling husbands, business rivals, and others who used the law for their own ends. Countless people weaponized the law in their own personal conflicts. Victorians who sent “vinegar valentines,” cards that insulted or humiliated their targets, were turned in for Comstock violations. So were men who harassed women, a flirting couple who arranged potential rendezvous, and wives who wrote angry letters to their husbands’ mistresses.

“Harsh Anti-abortion Laws Are Not Empty Threats.” Mary Ziegler, The Atlantic, 10 November 2023.

Of course, this is bad enough. And if Republicans were able to achieve that much, we can be sure it wouldn’t stop there. Contrary to the soothing lies of politicians like Glenn Youngkin about compromise, every victory only emboldens them to demand more. The once-unthinkable has already become routine in America, and their fanaticism for more and harsher restrictions on women has only grown.