The many unknowns now that Roe is overturned

Posted on June 29, 2022

The Supreme Court’s reversal of Roe v. Wade created numerous grave legal issues. Here are some of them:

Can individuals be prosecuted for having an abortion? It depends. Whether or not to prosecute will be decided state by state. Some states have pre-Roe or “trigger” bans that purport to punish those who obtain abortions, while other state anti-abortion laws assert they cannot be used against the person seeking care. See Center for American Progress. Notwithstanding those laws that claim they protect the person seeking care, most states have so-called “fetal homicide” laws, and in some states, they’ve been used to prosecute people who’ve had miscarriages. See Pew Stateline.

Can states prosecute people who cross state lines to seek an abortion? We don’t really know, but some states are going to try. Brett Kavanaugh suggested the constitutional “right to travel” would protect people crossing state lines, but that’s another right (like the right to privacy) that is not explicit in the Constitution. Do we trust the Supreme Court to uphold it? See New York Times.

Can states prosecute out-of-state abortion providers for murder? Probably not, but we can’t be sure. How would the ultraconservatives on the Supreme Court rule? See The Seattle Times. It does seem that a Texas SB 8-style vigilante civil lawsuit provision could be crafted to apply to out-of-state providers. And so far, the Supreme Court has allowed this unprecedented and legally absurd mechanism to stand.

Can states prosecute organizations and individuals who help people travel out-of-state for an abortion? Probably not under current law but, as the dissenting Justices in Dobbs warned, in the near future states may attempt to “criminalize efforts, including the provision of information or funding, to help women gain access to other states’ abortion services.” Also, the Texas SB 8-style vigilante statue (also adopted in Idaho and Oklahoma) allows private citizens to sue and recover $10,000 from anyone who helps someone get an in-state abortion and might be altered to apply to out-of-state abortions as well. See Brookings.

Can prosecutors subpoena private health records when they suspect an abortion? Probably yes. The federal Health Insurance Portability and Accountability Act, known as HIPAA, protects personal medical information but has exceptions for law enforcement. See CNN. In addition to medical records, prosecutors would likely subpoena email and text messages, Internet search history, cellphone location data, and even period tracking apps. See NBC News.

Can someone legally obtain abortion pills through the mail? No. Doctors in other states can’t mail medication abortion into a state where it’s illegal. Women might get the pills mailed from other countries. It won’t be legal, but states have no practical way to stop it. See Reuters.

Can progressive prosecutors in anti-abortion states stop prosecutions? In the very short term, yes, but in the long term, no. Dozens of district attorneys say they will refuse to prosecute for abortion as an exercise of prosecutorial discretion. However, in many states, the attorney general can prosecute if the district attorney won’t, and state law could, and likely will, be changed to make it easier to get around a refusal to prosecute. See Politico.

Can anyone use insurance coverage for out-of-state abortions? Probably not. Where abortion is banned, but someone currently has health insurance coverage for abortion, they will probably lose their insurance coverage even if they go to a different state for the procedure. See CNBC.

Will abortion be available where the law permits it in cases of rape or incest? Probably not. In states that ban abortion except in cases of rape or incest, it is unlikely any doctor will perform an abortion unless the rape or incest is conclusively proven. How is a doctor supposed to determine legality? See Politico.

Will the SCOTUS decision to overturn Roe v. Wade affect fertility clinics? It may. The ruling may allow states to ban or control the fertility process known as in vitro fertilization. And fertility clinics might be sued for wrongful death when they discard embryos. See CNN.