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Clash Over Texas Abortion Law Tests State’s Post-Roe Legal Reach

Aug. 26, 2022, 5:33 PM

A lawsuit to stop Texas from using its abortion laws to ban support for residents seeking the procedure elsewhere spotlights one of the biggest unsettled legal questions around abortion access.

The complaint, filed Aug. 23 in the US District Court for the Western District of Texas by a group of nonprofit funds, a volunteer support organization, and a Texas physician, alleges that Texas’s threats to enforce its abortion laws against supporters or facilitators of out-of-state abortions violates individuals’ rights to travel across state lines for the procedure, among other allegations.

The claims focus on the constitutional protection for assistance to people seeking to travel out of state to obtain an abortion, and in the physician’s case, to provide abortion services to people receiving them where they are lawful.

The case “has huge stakes,” Douglas Laycock, a University of Virginia law professor, said.

The question of whether a resident of a state in which abortion is outlawed can legally obtain one in another state isn’t settled, despite Justice Brett M. Kavanaugh saying in a concurrence to the US Supreme Court opinion striking down Roe that such interstate travel is permissible. But academic scholars aren’t so sure.

“It’s not 100% clear,” Rachel Rebouché, a law professor at Temple University, said.

“There is no case that clearly delineates when a state that tries to penalize conduct elsewhere violates the right-to-travel under the 14th Amendment,” she said.

Rebouché is one of the authors of a forthcoming paper that the dissenting justices in the high court case, Dobbs v. Jackson Women’s Health Org., cited for the proposition that overturning Roe would introduce “a host of questions about interstate conflicts.”

There are strong arguments that a state’s exercise of extraterritorial jurisdiction in the abortion context would violate the right to travel, but it’s a question courts have yet to answer, Rebouché said.

“I think the claims are zeroing in on the kinds of questions that courts will be asked to consider as people figure out what it means to challenge an abortion ban outside of Roe and Casey,” Rebouché said.

Texas Attorney General Ken Paxton (R) will defend the suit. His office did not immediately respond to a request for comment.

Unknown Territory

Judge Robert Pitman, who has been assigned the case for the Western District of Texas, denied the plaintiffs request for a temporary restraining order Aug. 24.

Denying the plaintiff’s request to supplement their motion for an emergency temporary restraining order Friday, Pitman said that the defendants should, given the significance and complexity of the legal questions presented by the case, be allowed to submit briefing before the court issues a ruling.

“It is settled that we all have a right to travel interstate. And generally, states can prosecute only those crimes that occurred within their territory. But we don’t really know if that rule is absolute,” Laycock said.

According to Laycock, courts haven’t grappled with such issues since just before the Civil War, after Northern states began to say that a slave brought into free territory was automatically freed.

In 1860, in Lemmon v. People, New York’s highest court held that a slave carried from Virginia into New York was free. Virginia couldn’t “project its law into New York, as Texas is trying to do to other states here,” Laycock said.

Judicial policing of states’ territorial authority has gotten “fuzzier, and more deferential,” Laycock said, but he thinks there is still a presumption that each state makes its own laws, and that it is not free to prosecute what happens elsewhere, especially with respect to criminal laws.

While Roe was in effect, there were only two cases dealing with a state’s ability to penalize out-of-state abortion conduct: Bigelow v. Virginia, a US Supreme Court case, and Planned Parenthood of Kansas v. Nixon, a Missouri Supreme Court Case.

The former dealt with an advertisement run in Virginia that advertised abortion services in New York, where it had recently been legalized. The latter dealt with Missouri’s attempt to require minors who traveled out of state to obtain abortions to comply with its parental consent law. In both cases, the courts ruled against the states.

Both cases contain strong language that is potentially useful for abortion rights advocates, particularly Bigelow. There, the Supreme Court said a state doesn’t “acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to the state.”

But it’s not clear how far that language will get the plaintiffs in the case.

In her draft paper, co-authored with Greer Donley, professor of law at the University of Pittsburgh, and David S. Cohen, professor of law at Drexel University, Rebouché notes that Bigelow is dated, relies in part on overruled law, and concentrated on the First Amendment. There’s also scholarly debate over whether the statement was—like Kavanaugh’s statement in Dobbs—not a controlling part of the opinion.

Even if Texas generally shouldn’t be able to punish someone for conduct beyond its boundaries, it will argue that it has a right to prosecute “people who carry Texans across state lines for the purpose of murdering them,” Laycock said.

“Nearly all constitutional rights have their exceptions, generally for state interests that the courts recognize as compelling,” Laycock said.

The case is Fund Texas Choice v. Paxton, W.D. Tex., No. 1:22-cv-00859, complaint 8/23/22.

To contact the reporter on this story: Holly Barker in Washington at hbarker@bloombergindustry.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com