Much of the U.S. could criminalize abortion. But how will those laws be enforced?
As the Supreme Court appears poised to overturn Roe v Wade, experts are examining how a wave of anti-abortion trigger laws may work between states and even whether “bounty hunter” models could be seen throughout the country.
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.
Kim Mutcherson is a dean and professor of law at Rutgers University and says criminalizing abortion would impact the most vulnerable people.
“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,” Mutcherson said.
In many states, restrictive abortion laws already exist. Texas, for example, passed SB-8 last year. That law effectively bans abortions after six weeks of pregnancy, which is before most people know they’re pregnant. It also incentivizes bounty hunters to report people seeking abortions or their providers.
Mutcherson said part of the reason why Texas passed the “very odd law” was because legislators “wanted to circumvent the ability of courts to stop the law from going into effect.”
“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,” Mutcherson said.
“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,'” she said.
Mutcherson said she didn’t expect many states to follow the SB-8 model, but what they may do is seek to punish people who have abortions in other states and then return home.
“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,” she said.
Mutcherson spoke with NPR’s All Things Considered about potential privacy issues that some of the trigger laws raise, what happens if abortion becomes a felony, and how some states are working to expand abortion coverage.
This interview has been edited for length and clarity.
On whether abortions could become subject to some kind of public examination and how that aligns with current doctor-patient confidentiality laws
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. 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.
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.
On what abortion providers are considering as some states are poised to make abortion services a felony
One thing to really keep in mind is that a lot of states, even prior to what’s about to happen to Roe and Planned Parenthood v. 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?
On how abortion pills are being thought about in the felony context
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?