A week before the U.S. Supreme Court overturned Roe v. Wade and the nationwide right to abortion, conservative groups were already mapping out their next moves: how to prevent pregnant people from seeking abortion care wherever it would still be legal.
At the “Life After Roe Symposium” on June 16 hosted by conservative think tank the Heritage Foundation, legal juggernauts of the anti-abortion world celebrated the Supreme Court’s plan to end Roe. But the work wasn’t done, they said. Attendees also discussed potential approaches for stopping “abortion tourism”—what they called the process of traveling over state lines for abortion services—as well as criminalizing the distribution of abortion pills. VICE News was given exclusive access to attend the private event in Washington, D.C.
“Overruling Roe certainly isn't the end of the fight for life. It's really the beginning of an important new phase and huge challenges ahead,” said Ed Whelen, senior fellow and Antonin Scalia chair in constitutional studies at conservative think-tank the Ethics and Public Policy Center. “Our ultimate goal is the protection of all unborn lives.”
When the Supreme Court ruled on Dobbs v. Jackson Women’s Health Organization last week and ultimately gutted Roe, abortion didn’t automatically become illegal everywhere in the U.S. It’s still a viable option up until various points in pregnancy in a majority of the country. Thirteen states, however, have so-called “trigger laws” on the books, intended to ban abortion soon after Roe fell. Many of those are currently winding their way through the court system, creating a rapidly changing patchwork of legality for undergoing the procedure.
“Our ultimate goal is the protection of all unborn lives.”
Denise Harle, director of the Center for Life at the Alliance Defending Freedom, said at the conference that the next step in eliminating abortion across the U.S. could be to prosecute those who aid a person crossing state lines for an abortion. The Alliance Defending Freedom is the Christian legal group at the center of the Dobbs case. Attorneys there served on Mississippi’s legal team and wrote the arguments that helped overturn Roe.
“One idea states have had is that it's almost analogous to kidnapping, where if someone took your child out of state, that state would have an interest in that and that would be a federal crime,” Harle said.
The Alliance Defending Freedom said they will not target pregnant people for crossing state lines, only those who help them do so.
As conservatives states, the same ones that have already or plan to outlaw abortion, bolster the legal concept of “fetal personhood” and grant legal rights to fetuses, the idea of charging a pregnant person with kidnapping isn’t so far-fetched. In 2013, Sara McKenna briefly lost custody of her child to Olympic skier Bode Miller after a New York judge ruled that Miller moving out of state while pregnant amounted to “appropriation of the child while in utero.”
In some states, Republicans lawmakers have already started drafting legislation to criminalize people who cross state lines for abortion services, as reported by the Washington Post. The versions in states like Arkansas, South Dakota, and Missouri would seek to use the same mechanism in Texas, where private individuals can report people who illegally access abortion services or even consider traveling outside state lines for an abortion.
In a statement last Friday after the Supreme Court’s ruling, Attorney General Merrick Garland said that states could not restrict an individual’s travel to receive abortion services, nor could states ban federally approved abortion medication.
But for the attendees of the “Life After Roe Symposium,” the most effective way to limit abortion is to unblock laws that have, until recently, been held up in the court system, as opposed to waiting for new legislation to pass.
“I think that although a lot of people are talking about the legislative activity, and there will be a lot of that,” Harle said. “Rather than waiting for a legislative session and trying to hash out all these details, the cleanest way is to get those laws that are already passed and enacted on the books back to being enforceable and enforced.”
Attendees of the Heritage Foundation's "Life After Roe Symposium" applaud at the event on June 16, 2022, in Washington, D.C. (VICE News Tonight)
Another major concern for attendees of the event was mail-order abortion pills, referred to at the event as “chemical abortions.” Multiple states have already banned all forms of abortion, including FDA-approved mifepristone and misoprostol, after the Supreme Court’s decision. But several organizations like Aid Access and Hey Jane have used loosening telehealth restrictions during the pandemic to provide safe, at-home abortions through the mail to people across the country up to their tenth week of pregnancy.
Roger Severino, vice president of Domestic Policy at the Heritage Foundation, as well as audience members at the event, repeatedly asked what can be done to prevent access to those medications.
“I believe states will be working on keeping chemical abortions out,” said Clark Foresight, senior counsel at Americans United for Life, an anti-abortion law firm and advocacy group. “But certainly it's also within Congress' power, expressly in the Constitution, to pass a federal law on that. And at the earliest possible opportunity, Congress should pass a federal law, hopefully with the next president who would sign it.”
Another approach would be to prosecute anyone who aids in distributing abortion medication. That could include doctors, pharmacists, or clinics that advertise that they provide abortion pills to out-of-state residents.
“The requirements are loosening for that, which is making a push more towards a discussion of other ways to criminalize people who are aiding and abetting the process besides just the doctors—so anyone who is engaging in something that might look like criminal solicitation of a woman for advertising, ‘oh, come here to our place and get your your medical abortion,” said Harle of the Alliance Defending Freedom.
“Well, what about a child in the womb who is solicited out of state by someone who is promoting drugs, either illegally administered and prescribed or just that are illegal in that particular state?” she also said, referencing the idea of prosecuting kidnapping once again. “Would the state have an action there?”
When reached for comment, Harle said, “We are working to think about ideal legislation that could pass. If states are protecting all lives, they need to protect surgical and chemical abortion too, within state borders. We will have to see within the states that pass these laws, what counts for soliciting criminal actions in their criminal code.”
“Ultimately, our goal is to make abortion unthinkable and unnecessary,” she added.
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