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Much of the U.S. could criminalize abortion. But how will those laws be enforced?


We know now that the Supreme Court may soon severely weaken or completely overturn abortion protections under Roe v. Wade. So what would that look like on the ground?

KIM MUTCHERSON: Abortion bans tend to impact the people who are already the most vulnerable.

FENG: That's Kim Mutcherson, a dean and professor of law at Rutgers University, where she specializes in reproductive justice. She says the people who will feel the impact of such abortion bans are...

MUTCHERSON: People who are low income, women of color, younger women, who tend to find out about their pregnancies later into their pregnancy, women who live in rural areas, undocumented immigrants.

FENG: More than a dozen states already have trigger laws banning abortion on the books that would immediately go into effect if the Supreme Court decision lifts or weakens Roe. And about a dozen more states will likely follow suit. I asked Mutcherson about the future of enforcing such laws.

How would any of these trigger laws actually enforce abortion providers or those seeking an abortion to stop doing that. For example, SB 8 in Texas, a law banning abortion providers - that incentivizes bounty hunters to report people seeking abortions or their providers. Is that model going to be replicated in other places?

MUTCHERSON: So one of the reasons why Texas passed that very odd law is they wanted to circumvent the ability of courts to stop the law from going into effect. And so what Texas did is it said nobody in Texas state government is allowed to enforce this statute. It is only going to be enforced by random people out in the world who identify that somebody is either providing abortions or that somebody has received an abortion, or someone has aided and abetted another person in having an abortion. But now they don't have to worry about that anymore. So once Roe is overruled, there's no longer a concern of, well, we don't want this to get in front of a court that's going to say that we can't keep the statute anymore. So I don't think we'll see a lot of those. And if we do see them, I think the way that we will see them is states that are trying to punish people for behavior that is happening out of state. And that's going to be a lot harder for them to track. And so they might want to incentivize people, you know, to turn in their neighbors and friends or whomever for going over state lines to get an abortion and then coming back home.

FENG: That sounds like that might require someone to prove they know someone who has gotten an abortion or is seeking one out, which raises a whole host of questions about privacy and confidentiality of medical records. I mean, have states said anything about that, whether they could - whether abortions would be subject to some kind of public examination?

MUTCHERSON: So it would be very hard for states to say that they're just going to open up everybody's medical records, right? This is actually a moment where HIPAA does apply.

FENG: The doctor-patient confidentiality laws.

MUTCHERSON: Exactly. And one way in which HIPAA is not relevant is if the person who has your private medical information is not a health care provider, right? So you were talking to somebody at a grocery store, or someone overheard you. They're not bound by HIPAA. So they could, you know, walk to the local police station and say, I was just in this grocery store. And here was this person who said X. That's a pretty scary world to live in. And so if we do get those kinds of bounty hunter laws that follow, that's one of the models that we might see there.

FENG: Many states are likely to make providing an abortion a felony. So what kinds of reproductive services might be deemed a felony? Who gets to decide to what level you have to do something for it to become a felony?

MUTCHERSON: Yeah. I mean, so one thing to really keep in mind is that a lot of states, even prior to what's about to happen to Roe and Casey, have gone sort of as close to the line as possible in terms of making it difficult for people to provide abortions or to get abortions. So a lot of abortion providers are already deeply accustomed to working within a whole host of restraints. And many states already have laws that ban abortion after viability, but they have to have exceptions for the life and the health of the pregnant person. And those typically will say that it's criminal, that you are subject to prison time and that you are subject to losing your medical license. So for those folks, the question will be, you know, do I continue to try to provide health care in this particular state when I know that I am at risk for getting arrested, or I'm at risk for losing my medical license?

FENG: And what about abortion medication, Kim?

MUTCHERSON: So medication abortion is useful up to about 10 weeks. It is easy to self-manage at home, but you have to get the pills. So a question for providers is going to be, what happens when states, for instance, start making it criminal to provide pills over state lines? You know, are you willing to ship them? Are you willing to drive them to somebody else and still really put yourself at risk by doing that?

FENG: Can you paint us a picture of a world in which that might be considered a felony? Would the provider of those pills or the provider of an abortion be subject to a felony only or also the person seeking an abortion?

MUTCHERSON: So it has very long been a tenet of the anti-choice movement that women should not be punished for having abortions. And part of that is this sort of myth-making that, you know, women only have abortions because the abortion industry is targeting them. Or their husbands or boyfriends are forcing them to have an abortion that they otherwise wouldn't have. So typically, any kind of abortion ban carve out the person who's actually pregnant. What I think that we are going to see is a lot of states saying, we don't need that carve out anymore - right? - because there are going to be so many people who are self-managing their abortions that if you really want to stop abortions happening in your jurisdiction, you're going to have to go after medication abortions, and you're most likely going to have to go after the people who are actually having the abortions. But I think that sort of, you know, protective cocoon that has been around women who actually are the people who are terminating their pregnancies - I think that's going to start to dissipate pretty quickly.

FENG: We've been talking a lot about restrictions to abortion, but there are other states, like Vermont, for example, which say they might embed abortion rights directly into their state constitution if Roe is overturned. Where do you see abortion rights potentially getting strengthened?

MUTCHERSON: Every state has a state constitution, and many of those constitutions already provide broader rights than the federal constitution. And so, you know, some of those constitutions, for instance, very specifically have an equal rights amendment, which we don't have in our federal Constitution. Some of those constitutions have specific provisions protecting a right to privacy, which is not specifically enumerated in the U.S. Constitution. So in those states, appealing to your state constitution might get you to a place where you still have a right to have an abortion in those particular states.

The other thing that states are doing - and I'm recording this from New Jersey, which is where I live. New Jersey not so long ago passed the Reproductive Freedom Act, and the goal of that was to codify the right to terminate a pregnancy into New Jersey law. So we're going to see some states taking that sort of position. And then the other interesting thing that some states are already talking about is making themselves, you know, safe havens for people who want to terminate their pregnancies. So saying things like, we're not going to give names to anybody, right? So if you show up with a warrant and say, you know, I think somebody from my state committed a crime by coming here and having an abortion. Some states are saying, you're not going to get that information from us. So there's going to be a lot of interesting and difficult tangling and wrangling between states to figure out who has the power to do what.

FENG: That was Kim Mutcherson. She's a dean and professor of law at Rutgers University. Thanks for being here with us, Kim.

MUTCHERSON: Thanks so much.

(SOUNDBITE OF CITY OF THE SUN'S "VENTURA") Transcript provided by NPR, Copyright NPR.

Emily Feng is NPR's Beijing correspondent.
Jonaki Mehta is a producer for All Things Considered. Before ATC, she worked at Neon Hum Media where she produced a documentary series and talk show. Prior to that, Mehta was a producer at Member station KPCC and director/associate producer at Marketplace Morning Report, where she helped shape the morning's business news.
Justine Kenin
Justine Kenin is an editor on All Things Considered. She joined NPR in 1999 as an intern. Nothing makes her happier than getting a book in the right reader's hands – most especially her own.