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Abortion law could soon be in the hands of states — creating new issues

A MARTINEZ, HOST:

Abortion law could soon be in the hands of states. A draft opinion leaked earlier this week suggests the Supreme Court may soon overturn Roe v. Wade, the landmark abortion ruling. If that happens, more than two dozen states are expected to ban abortion. Some lawmakers are also trying to keep people from pursuing options in states where abortion will remain legal. All this is gray legal territory, so let's turn to Melissa Murray, professor of law at New York University. Professor, thanks for joining us.

MELISSA MURRAY: Thanks for having me.

MARTINEZ: All right. Several weeks ago, a Missouri lawmaker introduced a bill that would let private citizens sue someone who helped a patient cross state lines for an abortion. Is that legal?

MURRAY: It is a gray area, as you say. There are a lot of different legal issues that would be raised if a bill like this were actually enacted. Individuals have what is known as the right to travel, which means that they can move freely within the various states. There are some limitations, obviously, on the right to travel, but the idea is that you should be able to move from state to state and be able to access the benefits that the state offers to its citizens, with some limitations. But again, the idea of a state actually precluding someone from accessing benefits in another state, basically imposing their public policy on the other state, is something that I think is a little more far afield. And so I think there would be legal questions about that.

The idea of what it means to assist someone to leave the state is also something that moves us into some gray area. Is it simply driving someone across state lines to seek an abortion in a more hospitable state? Or is it something more anodyne, like donating money to an abortion fund that helps people to leave the state to seek abortion care? I think in a situation like that, where you're donating money but the money provides assistance, you could actually have some First Amendment issues around the whole question of prohibiting that kind of assistance. So the Supreme Court has suggested that returning this to the states will settle this fraught conflict over abortion that has really gripped the nation for almost 40 years now. But it seems like it's really just going to exacerbate already existing conflicts and perhaps provide new conflicts that we haven't yet seen.

MARTINEZ: In general, how far can states go to legislate activity beyond their state lines?

MURRAY: Again, I think we're going to see how far they can go. And I think many of these states are willing to push the envelope and test this. But if you just look to our recent past, 1967, the Supreme Court struck down a ban on interracial marriage in Loving v. Virginia. What people don't realize is that the laws that were struck down in that case - it wasn't simply about banning interracial marriage. One of the Virginia laws that was challenged actually made it a crime for people to leave the state in order to transact interracial marriages elsewhere. This is sort of ripped from the same playbook. If another state offers a benefit that your state doesn't offer, can your state prohibit you from leaving you in order to seek that benefit if you're going to return to your home state?

MARTINEZ: You mentioned helping people go across state lines. I know a lot of companies are offering to pay for travel so their employees can find abortion care - Apple, Amazon, Citi, a growing list. Would that be legal if Roe was overturned?

MURRAY: Well, right now it's legal. But again, if the terms of these laws, like the proposed Missouri law, broadly construe what it means to assist someone, then that, too, could be off the table. And that, too, could be a violation of the corporation's rights to use its money in a manner of its choosing. I mean, think about Citizens United and this whole idea that corporations enjoy speech and are able to donate, and that is an expression of speech. This might be considered an expression of speech, too. So I think there are likely to be First Amendment issues if this notion of assistance goes so far as to prohibit individuals from supporting particular causes or even providing funding for their own employees to do this.

MARTINEZ: What about lawmakers who are trying to minimize access to abortion medication? What's likely to happen with that?

MURRAY: Well, so abortion medication lends us into the whole realm of administrative law. And this has been an area where conservatives - the Trump administration, for example - was very exercised during the pandemic to limit access to medication abortion. The Biden administration changed its policies, so it sort of, you know, rolled things back from what the Trump administration had done. But individual states can do this through their own administrative agencies that regulate the distribution of pharmaceuticals and other drugs in their borders. And they can perhaps limit the distribution of those kinds of pharmaceuticals from other states from coming in. You could also have a conservative Congress, for example, passing laws that prohibit the use of the mails to distribute medication abortion. We had this back in the 1870s with the Comstock Act, which prohibited the transmission of articles intended for, quote-unquote, "immoral purposes" across state lines using the Postal Service. So there's a wide range of things that can be done to limit the distribution of the medication abortion protocols through the mails and other means of transmission.

MARTINEZ: I know Texas provided an enforcement model for some states when it gave private citizens the authority to sue someone who sought an abortion. Could there be lawsuits over those kinds of lawsuits?

MURRAY: Well, I think we can have lawsuits over lawsuits. Certainly it's likely if, for example, someone filed suit under that Texas law but did so maliciously, knowing that the individual they had named had not actually provided an abortion or assisted someone in providing an abortion. So you could imagine lots of lawsuits brought by people who were sort of hemmed up in litigation because of a falsely brought lawsuit or maliciously brought lawsuit, so we could have things like that. There could also be challenges to, you know, what it means to actually provide assistance. And so, again, these laws are written really broadly. They're untested as of yet. And I think they are going to be fertile ground for new lawsuits pushing and trying to understand what the scope of everyone's rights is at this point.

MARTINEZ: Melissa Murray is the Frederick and Grace Stokes Professor of Law at NYU. Professor, thanks.

MURRAY: Thank you. Transcript provided by NPR, Copyright NPR.