Abortion ‘Trafficking’ and the Constitution (Updated)

Photo by jcutrer, CC BY-SA 4.0 , via Wikimedia Commons

After the Dobbs decision, the obvious question for anti-abortion activists was where to go from there. Roe v. Wade had been overturned. It was the culmination of nearly half a century of political and legal campaigning.

Several pro-life states had statutes that were already passed and just needed the judicial go-ahead for them to take force. Several more states passed new laws and, in some states, restrictive new abortion laws failed.

Now, anti-abortion strategists are faced with a new dilemma. The low-hanging fruit has been picked. What strategy should be adopted for their next move?

On one hand, they could simply declare victory and scale back their operations to protect their gains. Alternatively, they could shift their focus to a new goal, such as providing support and care for the new babies that will be born rather than aborted. Political movements seldom close up shop, although they sometimes do change their focus.

A different tack would be to carry the battle to states with permissive abortion laws or pass a national abortion ban. This would involve opening new fronts in the battle for hearts and minds in areas where the message would not be easily received. This is a difficult strategy.

Finally, there is the option that involves passing ever more restrictive laws in states where abortion is already illegal and rare. It is this route that some people are choosing in Texas.

Back in June 2022, I wrote about the nascent idea of targeting interstate travel to facilitate abortions. It was a bad idea, I wrote then, but nevertheless, some in Texas are giving the plan a try.

The Washington Post reports that the city of Llano in central Texas is considering an ordinance that would make it illegal to transport a woman to get an abortion on roads in the city or county of Llano. Like SB 8, a controversial state abortion law passed in 2021, the ordinance would punt enforcement to civil courts where private citizens could sue people or organizations that they believed were violating the law.

As I said at the time, I believe this sort of law is a bad idea that is subject to abuse on both sides, but it did serve the purpose that Texas had intended by making it difficult for pro-abortion activists to sue to stop the law from taking effect. The law is still on the books, thanks in large part to the 2022 Dobbs decision, but it did survive several lower court challenges before the Supreme Court struck down Roe. (In August, a Texas judge ruled that the law was too restrictive. That case is pending before the Texas Supreme Court, but the US Supreme Court declined to intervene in an earlier case involving the law in January 2022.)

Per the Post, two Texas counties have passed the ordinances against “abortion trafficking,” which Mark Lee Dickson of Right Texas Right to Life of East Texas, defines as “the act of helping any pregnant woman cross state lines to end her pregnancy, lending her a ride, funding, or another form of support.”

The core problem is that the ordinance language is a blatant overstep into federal authority. The Constitution gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” For a state or city government to usurp this federal role is almost unquestionably unconstitutional.

Again, however, the problem is who to sue. So far, no cases have been filed under the ordinances and precedent from the SB 8 fight left opponents unable to target state officials since there was no state (or municipal in this case) enforcement.

I’ll point out that not all pro-life conservatives favor this sort of trailblazing legislation. Council member Laura Almond helped to defeat the ordinance in Llano, even as she noted “I hate abortion” and “I’m a Jesus lover like all of you in here.” Quoted in the Post, Almond said that the law might have been used to prosecute her for picking up a friend from an abortion clinic when she was in college if it had been on the books then.

“It’s overreaching,” Almond said. “We’re talking about people here.”

Another prominent opponent is Brett Kavanaugh. The Supreme Court justice wrote in his Dobbs concurrence, “May a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

You don’t have to be pro-abortion to oppose the restrictive intrusion that anti-”trafficking” laws impose on individuals and their right to travel. There are myriad possibilities of reasons to travel that the state might find objectionable. I can think of several including marijuana tourism in recreational use states, sex tourism at Nevada’s brothels, or even a firearms-related vacation in a pro-gun state. But the state has a very limited ability to control the behavior of its citizens outside its borders. It’s a longstanding legal concept called “jurisdiction,” or in this case, the lack thereof.

In my view, the Supreme Court needs to take a case that considers the question of whether states can pass enforcement of controversial laws to citizens through civil lawsuits. And before conservative readers are too quick to defend the concept, consider that California has already passed a bill modeled on the Texas law that allows individuals to sue gun manufacturers and distributors.

The whole idea of passing enforcement of controversial laws to individuals is a gimmick to elude injunctions that would otherwise block these laws so fast that it would make your head spin. Like many ideas coming out of the new Republican Party, this expansion of Big Government is neither traditional nor conservative.

We need a test case for the Supreme Court to clarify whether this practice is constitutional. We didn’t get it last year for SB 8, but with the expansion of the strategy to other states and local governments, it is time for the Court to act to protect federal authority from unconstitutional overreach by states and cities.

CORRECTION: Mark Lee Dickson has notified me that he is a director with Right Texas Right to Life of East Texas, not Texas Right to Life as I originally reported. I regret the error.