If the Supreme Court ends up weakening or outright overturning Roe v. Wade, the decision could result in a patchwork of laws across the country and trigger legal challenges between states that ban abortion and those that allow them, according to legal analysts who have followed the polarizing debate.
The resulting political divide between states and conflicting laws, analysts said, could create an uncertain legal landscape for those looking to cross state lines for abortion services, as well as those who help them — perhaps even the Uber driver who takes a woman to a clinic or the philanthropist who donates to a fund that helps patients afford the travel and expense, analysts warn.
Conservatives in some states have already threatened legal action against abortion supporters. More than two dozen states are poised to ban most abortions if the Supreme Court overturns Roe v. Wade, the 1973 decision that granted women the right to an abortion during the first trimester of a pregnancy, but more limited access after that. A draft opinion that was leaked in April suggests the court may overturn the landmark case.
Some of the new state laws go beyond just restricting abortion within their own borders; they allow for civil penalties for anyone who “aids or abets” an abortion as well. Texas and Oklahoma have already enacted so-called bounty hunter laws that allow any citizen to bring an action against someone who helps a resident get an illegal abortion, defined as after the fetus’s heart beat is detected.
“The bottom line here is there is a lot of uncertainty,” said Sonia M. Suter, director of the Health Law Initiative at George Washington University Law School. “The antiabortion movement is really trying to make this not just the law of their states, but national.”
With laws in place in Texas and Oklahoma, more states could follow a similar path, emboldened by the potential of a Supreme Court decision that bans abortion on the grounds that the fetus is a human being deserving of its own rights.
The legal uncertainty has states such as Massachusetts proposing their own laws aimed at protecting health care workers who provide access to abortions, regardless of where the patient resides. What could follow is a showdown between states that could enter unprecedented legal territory and throw the issue back before the high court.
“There will be this arms race as each of these states tries to protect their vision of what the reproductive landscape should look like,” Suter said. “The question comes down to ... ‘How much can one state try to affect what other states do?’”
She added, “The scary thing here is, I don’t think we can understand how a lot of this will look, legally. The landscape looks real shaky right now.”
The question has haunted legal scholars and liberal policy activists since the leak in May of a draft opinion by Justice Samuel Alito that would strike down Roe v. Wade.
The Supreme Court case at issue centers on a Mississippi law that bans most abortions after 15 weeks of pregnancy, about two months earlier than allowed under current law.
It is not known whether or how much of Alito’s legal reasoning will prevail in the ultimate decision by the court; the final opinion is expected by the end of the month. But the strong language Alito used to justify his decision that there is no constitutional basis for abortion as a right and his suggestion the fetus is an “unborn human being” that may deserve its own legal protections has already galvanized antiabortion activists to seek a national abortion ban and to strengthen restrictions at the state level.
In Missouri earlier this year, a state lawmaker proposed a law that would specifically target health care providers in Illinois, where Planned Parenthood opened a clinic on the states’ border in 2019, though that legislation was not adopted.
Abortion-rights advocates in Texas have already challenged that state’s law, which was passed last year, arguing in lawsuits that it is unconstitutional because it clearly violates the standards set out in Roe. Those cases are pending, so it is not known if the forthcoming Supreme Court ruling will render them moot. Last year, the court rejected a request to stop the law from taking effect until the cases could be resolved, which advocates say has had a chilling effect on abortion providers and supporting organizations.
The new state laws have already emboldened the antiabortion movement, according to legal analysts and abortion-rights advocates, who say the end goal of the movement has been not only to overturn Roe v. Wade, but to see a universal ban on abortions across all states.
“There are states in this country that are going to try and do everything they can to try and limit access to abortion care,” said Jessie Rossman, an attorney with the American Civil Liberties Union of Massachusetts who specializes in laws related to reproductive care. “There’s no indication that they’re going to limit that to prohibiting abortion care to within their own border.”
Legal analysts said conflicting laws among states could spur a flood of court challenges that will require reviews of decades-old federal case law. Those will include court decisions related to the right to cross state lines — a personal right that is not spelled out in the Constitution and has never been fully addressed in court doctrine. And it will also involve reviews of what is known as the Dormant Commerce Clause, which is meant to prohibit states from interfering in interstate commerce.
But the Dormant Commerce Clause — a body of law that is inferred from past court decisions involving the Commerce Clause but is not itself written into the Constitution — has not been fully addressed by the courts, either, analysts said. And it could be tested by a Supreme Court ruling that posits a fetus is a human being entitled to protections, as Alito’s draft seemed to suggest.
“It’s a gray area, that’s the reality of it,” said Mary Ziegler, a visiting professor of constitutional law at Harvard Law School, who specializes in reproductive and health care law.
“Neither of these bodies of law have been fully developed,” she said. “If you’re looking for guidance there, there’s not much.”
She said the outcome of initial court challenges will depend on where a court case is filed and which courts have jurisdiction. But ultimately, she said, the question will likely go before the Supreme Court — an indication that the abortion debate will not end any time soon.
What is clear is that the leaked opinion has already caused abortion providers to examine the legality of what they are doing, and where, and whether they could be vulnerable to prosecution under state laws that criminalize abortions. Meanwhile, from Massachusetts to Oregon, states that support abortion rights have looked to increase resources to ensure that patients receive continuing care, including patients from states where abortions are not allowed.
“People are concerned. These are health care providers spending a lot of time focusing on how they can provide the safest care, and now to add to that a legal threat from another state. It’s just not where we thought we would be,” said Melissa Fowler, chief program officer of the National Abortion Federation, which provides support for abortion providers and organizations across the country.
“It’s just uncharted territory for us; we never had to think about this,” she said.
Some states, including Maryland, have boosted training for health care providers. California and Connecticut have already built in protections for health care workers who provide care for people from out of state.
In Massachusetts, the Senate recently tucked legislation into the state’s budget that would add protections for reproductive health care providers, as well as resources for out-of-state residents who travel here seeking care. State agencies would be prohibited from assisting any outside investigation of a Massachusetts doctor or other health care worker, and the governor would be prohibited from extraditing a person to a different state to face charges for an abortion or a related service.
Senator Cindy Friedman of Arlington, who proposed the measure, told the Globe last month it was written in a way that would respect interstate commerce laws and the ability of plaintiffs to bring legitimate lawsuits. But its goal, she said, is to protect physicians in cases of legally sanctioned abortions and other care.
“We don’t have to make it easy” for other states, she said, adding, “This is a whole world that has yet to be explored. We’re doing the best we can … we believe we’re on solid [legal] ground.
The measure was put into the state budget in part because it expands liability protections. Though the Senate approved the legislation, the budget is now before a conference committee of Senate and the House lawmakers hammering out differences between the two chambers. The House passed its own version of the budget before Alito’s draft opinion was leaked, and that spending plan does not have language on the added liability protection.
House Ways and Means Chairman Aaron Michlewitz of the North End said representatives are committed to protecting reproductive rights, pointing to the recent passage of laws that cemented the same protections provided by Roe: Abortions are allowed through 24 weeks of pregnancy in Massachusetts, and are allowed after that for limited health reasons.
“We are analyzing what the Senate did and taking a look at it, and seeing if that’s something we can work on through the budget process,” he said.
Governor Charlie Baker has similarly said he would be open to discussing added protections for health care workers.
Matt Stout of the Globe Staff contributed to this report.
Milton J. Valencia can be reached at firstname.lastname@example.org. Follow him on Twitter @miltonvalencia and on Instagram @miltonvalencia617.