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June 27, 2022

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Could Idaho accuse a Washington abortion clinic of murder? Some are worried

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A woman from Idaho, where abortion has become illegal, travels to Washington to end her pregnancy. A prosecutor in the woman’s home state declares an Idaho citizen has been killed — and tries to prosecute the woman or the abortion provider for murder.

That’s a scenario envisioned by Drexel University law professor David Cohen if the U.S. Supreme Court overturns Roe v. Wade in a decision expected any day now. Cohen, who foresees likely interstate battles if some states continue to allow abortion while others outlaw it, imagines other scenarios too.

“The boyfriend or mother of the patient will say: ‘You have killed my granddaughter or my son. I’m going to sue you for wrongful death,’ ” Cohen said. Or, he said, someone in an anti-abortion state will attempt to go after the person who drove a patient to Washington to seek an abortion.

Some see those scenarios as unlikely — or “ridiculous” scaremongering by abortion-rights activists, in the words of James Bopp Jr., general counsel for the National Right to Life Committee.

“The idea of federalism is that each state gets to adopt its own laws,” Bopp said.

Yet, Bopp this month circulated model legislation for anti-abortion states that seeks to stop some people, namely minors, from traveling to other states without parental consent to end their pregnancies. A person who takes a minor across state lines for an abortion with the intent of keeping parents unaware would be guilty of a felony: trafficking.

While it’s not clear what Washington could do about such prosecutions and lawsuits, Washington Attorney General Bob Ferguson has put together a team of more than 20 staffers to prepare.

“We’re not waiting around to start thinking about what a case might look like. We’re doing it right now,” Ferguson said, promising he’ll do everything he can to uphold a 1991 initiative codifying Roe v. Wade into state law, ensuring abortion protections even if the high court opinion no longer stands.

Local abortion clinics, too, are weighing the possibility they will become targets for anti-abortion forces in other states like Texas and Idaho, which allow lawsuits against abortion providers or those helping someone end their pregnancy.

“We may be buried in legal action,” said Mercedes Sanchez, a spokesperson for Cedar River Clinics, which has several facilities around the state.

“These lawsuits may result in financial burdens that could force clinics to close,” said Sanchez, who is also on the board of the Abortion Care Network of independent providers.

It is not unprecedented to have opposing criminal laws in different states. University of Idaho law professor Shaakirrah Sanders said Idaho outlaws marijuana and prostitution, yet borders states have legalized both (Washington and Oregon in the case of marijuana, Nevada in the case of prostitution).

Sanders said she hasn’t heard of Idaho authorities investigating cross-state traffic for activities that are legal in other states. So she said it’s unknown whether Idaho — where a state law would make abortion illegal if Roe is overturned — would monitor people traveling outside the state to end pregnancies.

But Ferguson, noting the fever-pitched emotions around abortion, said the procedure presents “a very different issue.”

“I just fundamentally believe that elected officials and deep-red states will push this issue as far as they can,” he said. “To think otherwise is being naive.”

A Missouri legislator already has put forward a bill that would penalize various participants in out-of-state abortions. And Texas last year passed a bill that would authorize providers who mail abortion pills into the state to be extradited there to face prosecution.

“That’s not going to happen,” Ferguson said, when asked if Washington providers could be extradited.

State law says the governor may surrender someone accused of a crime in another state even if the accused was never in that state. Undoubtedly, Gov. Jay Inslee, an abortion-rights supporter, would not extradite a Washington resident in abortion cases.

Still, Drexel’s Cohen said uncertainty surrounds looming battles between states. On the central question of jurisdiction, for instance, he said “the law is unsettled.”

Some states, he said, have legislation they may argue gives them jurisdiction over crimes that happen elsewhere but have effects in their states.

Any connection to an anti-abortion state — say a phone call between a resident and an out-of-state abortion clinic — could spark a jurisdictional battle, Cohen said.

Another connection could be the “point of sale” for abortion pills, which Bopp of the National Right to Life Committee said would be the location of the person who buys the pills.

His model legislation proposes that aiding or abetting an illegal abortion should include giving instructions about how to get one, providing referrals to providers or running a website that encourages the procedure.

Abortion-rights supporters say they don’t think many of these legal strategies will ultimately be successful. But some worry about unintended consequences of resisting other states’ laws.

“It’s a two-way street,” said Kim Clark, a senior attorney at Legal Voice, an advocacy nonprofit. Washington may want other states to recognize its laws in other areas, such as around LBGTQ+ marriages and adoptions, she said.

“We’re all furiously trying to think through the policy solutions,” she said.

She and others are analyzing laws recently passed in Connecticut, Massachusetts and New York that attempt to fend off legal action from anti-abortion states, including by preventing residents from having to cooperate with subpoenas and extraditions, and allowing them to countersue.

“You’re going to see multiple proposals in the next legislative session, and I suspect some of those bills will pass,” Ferguson said.

The regional Planned Parenthood affiliate based in Seattle operates in Idaho, as well as the anti-abortion states of Indiana and Kentucky, so it arguably has reason to be especially worried about lawsuits and prosecutions. But spokesperson Katie Rodihan said the nonprofit plans to help Idaho residents get Washington abortions in a variety of ways if Roe is overturned.

“We can refer them directly and schedule appointments in Washington,” Rodihan said. That’s easy to do, as the same team makes appointments for Washington and Idaho.

“Then we can connect them with abortion funds and other organizations that will give them the financial resources they may need to travel out of state and get that care,” Rodihan said, adding that patients will also be able to get follow-up care back in Idaho.

Planned Parenthood’s lawyers don’t think Washington providers or their organization as a whole face a legal risk. Idaho’s law allowing lawsuits is not as broad as Texas’ and targets only providers, rather than anyone who helps someone get an abortion, Rodihan said. And Planned Parenthood does not believe Idaho’s law has any authority over out-of-state providers.

But clearly, the Supreme Court decision, if anything like the leaked draft decision that would eviscerate abortion protections, will usher in a new legal landscape.

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