The Great American Political Circus: How Some Counties are Changing Abortion Regulation in a Post-Roe America

Protestors march for abortion rights. Source: ACLU of Texas

The Dobbs v. Jackson Women's Health Organization Supreme Court decision seems to have intensified America’s political dysfunction– distinctly characterized by gridlocked legislatures, rogue courts, and unconventional legal tactics to bypass precedent. Ladies and Gentlemen, I welcome you to the ever-growing flames of our American political circus. 

It has been 50 years since abortion was established as a constitutional right through Roe v. Wade. After the decision was overturned, questions and fears regarding new abortion regulations gripped the country. For women in Lubbock County, this fear has become a reality. Several counties in Texas have issued ordinances banning people from assisting women traveling to receive abortions.  

Home to more than 300,000 residents, Lubbock County is the newest and largest addition to the four Texan counties that have banned travel assistance for abortions. The county, which includes Texas Tech University and the city of Lubbock, is located near the New Mexico border, a prime state thousands of Texan women travel to for abortion access. Similar ordinances passed in Amarillo and the Texas panhandle apply to the networks of roads that lead to New Mexico and Colorado.

But are these ordinances constitutional? In his concurring opinion, Justice Brett Kavanaugh answers this question: No. Justice Kavanaugh affirms states may not bar residents from traveling to another state to obtain an abortion. Several legal scholars have agreed, stating the Privileges and Immunities Clause, Dormant Commerce Clause, and fundamental rights protections of the U.S. Constitution "restricts a state's ability to prescribe legislation extraterritorially and thus could be used to challenge abortion travel bans."

Regardless, states like Idaho in April 2023 began restricting interstate travel for minors seeking an abortion, with other states to follow. In response to these legal challenges, architects of the Texas abortion ban argue that ordinances do not explicitly prohibit women from traveling to receive an abortion, only assisting them. However, whether these ordinances violate the undue burden standard expanded upon in the Whole Woman's Health v. Hellerstedt decision is unclear. Whole Woman's Health v. Hellerstedt heightened scrutiny of the undue burden test and rejected “judicial deference to legislative claims.” Now, all abortion restrictions must actually further a state interest, offer clear benefits that outweigh the burden placed on women, and consider credible evidence in their determination. As the late Justice Ruth Bader Ginsburg penned, "When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety." Only time will tell whether future court decisions will clarify this standard in the context of abortion travel bans. This ambiguity serves as a salient reminder that what is constitutional is what the current Court thinks is constitutional. After the Court's lack of adherence to precedent in Dobbs, it is unknown what they will decide if a challenge of these bans were to ever come before the Justices. 

The use of civil lawsuits to enforce bans is also concerning. Civil lawsuits have become a novel legal strategy to restrict abortion while avoiding constitutional challenges that would arise from enforcement. Texas's highly controversial 2021 law banned abortions after detecting fetal cardiac activity and allowed private citizens to sue anyone who assists with prohibited abortions. This approach deputizes private citizens to avoid traditional means of law enforcement, sidestepping judicial processes and shifting prosecutorial discretion into the subjective hands of citizens. Scholars have noted how this approach is now proliferating across many Republican-led states, and its application to abortion only foreshadows its application to other controversial issues. Laws passed in Tennessee and Florida empower teachers and students to sue schools over LGBTQ+ bathroom access and transgender participation in female sports teams. As Jon Michaels, a professor at UCLA Law, critiques, "It's a way of back-dooring and winking while constitutional violations are occurring...It is compromising democracy." Typically, in tort law, individuals must demonstrate personal harm in a standing to create a civil lawsuit; these ordinances grant citizens the right even without any emotional stakes– a decision we have yet to learn the ramifications of. 

As of November 2023, only 38 lawsuits have been filed across 23 states challenging abortion. While these lawsuits have yet to have sweeping effects on providers, the key to their enforcement lies in the fear of prosecution it instills in would-be providers. The threat of financial penalties and the shutting down of abortion services in local areas severely limit access without an outright ban. It is an entirely different question if laws centered around the fear of prosecution actually deter behavior– take California's disastrous three-strikes law. The 1994 policy, which mandated a minimum sentence of 25 years to life for certain three-time repeat felony offenders, has done nothing to reduce California’s crime rate. In fact, research suggests that in some areas, the three-strikes policy correlated with an increase in homicide rates and the percentage of police victims. Additionally, our history with citizen-enforced laws– such as the fugitive slave law– raises doubts about whether such laws were ever successful. However, it is clear that this type of legal enforcement is a growing trend that threatens to profoundly change America's law enforcement tactics as we know it.

Ultimately, these ordinances disproportionately harm low-income women and women of color by restricting their access to care. Black and Native American women are most likely to live in the 26 states with abortion bans, and Latinas are the most likely restricted due to a lack of economic resources. According to the National Partnership for Women and Families, these bans present "significant negative consequences for their lives, plans, health, and economic security." What is on the line is women's reproductive justice– "the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities." Ordinances like Lubbock County’s directly violate this right. So, while the legal circus continues, women's lives and well-being hang in the balance. Women’s once-guaranteed right takes center stage as the rest of the U.S. watches on, holding their breaths in anticipation of what state governments will do next to try and erode it.