With SB 8, Texas Republicans showed the world exactly how much the Supreme Court would let them get away with.
Legal experts and court watchers recoiled at the law that deputizes individuals to sue all those who “aid and abet” a woman getting an abortion, many echoing Justice Sonia Sotomayor’s position that the law is “clearly unconstitutional.”
Others focused their attention on what the Court’s letting the law stand would mean for the future, providing other red states with a blueprint to evade judicial review.
“Essentially, we would be like ‘you’re open for business. There’s nothing the Supreme Court can do about it,’” Justice Elena Kagan said during oral arguments over the Texas bill. “Guns, same sex marriage, religious rights — whatever you don’t like, go ahead.”
Republican legislatures are taking heed, with Idaho this week becoming the first state to pass a law mimicking the Texas one.
Missouri state Rep. Mary Elizabeth Coleman (R) has introduced an amendment innovating on the Texas model that would let individuals sue anyone who helps a woman get an abortion — in a different state. Not content to have a future with a bifurcated country of blue states with abortion access and red states without, those who track the issue fear that anti-abortion legislators may follow Coleman’s lead and try to keep their constituents from taking advantage of states that do provide abortion services.
Legal observers told TPM that the Missouri bill is likely unconstitutional. They added that it may not matter.
“The Supreme Court declining to step in on SB 8 gives a green light to all these sorts of measures,” said Jessie Hill, associate dean and professor at Case Western Reserve University School of Law. “It’s a matter of time before we see more states doing the same thing.”
Experts have anticipated this next step, the culmination of anti-abortion crusaders’ decades-long fight.
“It’s always been the end game to make abortion inaccessible everywhere,” Hill said.
In a new draft paper called “The New Abortion Battleground,” a trio of law professors examines the coming jurisdictional disputes in a world without Roe v. Wade — one where the actions of each state, and how they interact with each other, is critical.
“Some states will pass laws banning their citizens from out-of-state abortions while others will pass laws insulating their providers from out-of-state prosecutions,” they write. “State legislatures are already introducing and drafting bills to this effect.”
It’s not the first time lawmakers have tried to punish their constituents for out-of-state conduct, particularly over abortion, but the case law is thin.
“There’s a long history of it,” David Cohen, one of the paper’s authors and a professor at Drexel University’s Thomas R. Kline law school, told TPM. “Virginia tried to do it in the ‘70s over an out-of-state abortion clinic advertisement. Pennsylvania prosecuted the mother of a boyfriend for taking his girlfriend to New York for an abortion in the ‘90s.”
The paper found only two cases dealing with the question of whether states can punish constituents for out-of-state actions since abortion became a constitutionally-protected right.
One that may have direct ramifications for the Missouri bill is Planned Parenthood of Kansas v. Nixon, decided in 2007. Part of the law in question would have made minors abide by Missouri’s parental consent requirements even if they traveled out of state to get an abortion.
“Of course, it is beyond Missouri’s authority to regulate conduct that occurs wholly outside of Missouri,” the Missouri Supreme Court ruled. “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect.”
But things like precedent have less cachet now than they’ve had in the past, and what scant case law exists is murky.
If the Missouri bill or one like it makes its way to the Supreme Court, the conservative justices have already shown their willingness to accept a structure that confounds judicial review, at least while it helps further a cause they endorse.
“All this talk in the Dobbs oral arguments by the conservative justices, especially Kavanaugh, that this should be left to the states — it’s very clear that states like Missouri want to decide for more than just Missouri,” Hill said of a recent major abortion case. “This was never about states rights or about federalism.”