Divided states: Blue states blitz to offer abortion ‘sanctuary’ to red state residents
Breccan F. Thies
In the wake of the overturn of Roe v. Wade, a divide among the states has created a framework where pro-abortion rights states are providing abortions to citizens of anti-abortion states and anti-abortion states have no legal recourse.
While 26 states pursued abortion restrictions after Dobbs, 19 states responded with measures to not only expand access to abortion, but also ban cooperation with anti-abortion states enforcing their own abortion laws. Some pro-abortion states went further still, encouraging abortion tourism from out-of-state residents.
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In 2022, Colorado, which allows abortion up until the moment of birth, enacted several statutory requirements for abortion, including making it a “fundamental right.” The statute also bars any suggestion of fetal personhood, stating, “a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of the state.”
In addition, Gov. Jared Polis (D-CO) also signed an executive order prohibiting Centennial State agencies from complying with any out-of-state legal challenges if those abortion-related actions are legal in Colorado.
The order made Colorado a sanctuary state for abortionists, ensuring medical licensure protections against out-of-state sanctions, as well as declining to arrest or extradite anyone charged with an abortion-related crime in another state.
“People want politicians out of their bedrooms and out of their doctor’s office. Gov. Polis is pro-freedom, pro-choice and will do everything under the law to prevent doctors in Colorado from being extradited for simply performing their duties as medical professionals,” Polis spokesman Conor Cahill told the Washington Examiner.
Abortion border battles
Places like Colorado, or the West Coast’s “Multi-State Commitment to Reproductive Freedom,” aim to encourage out-of-state abortion-seekers to travel from their restrictive states to obtain an abortion.
In response to bans, abortionists in some pro-abortion states are setting up clinics near the borders of anti-abortion states, encouraging interstate travel to their location for an abortion.
Idaho, which has one of the country’s most restrictive bans, borders Washington and Oregon, which have made a pro-abortion pact with California. While the Gem State cannot constitutionally pass laws banning its citizens from obtaining an abortion out-of-state, Gov. Brad Little (R-ID) is pursuing measures that discourage abortion tourism.
“I think states are going to have to look at things like what Idaho has done and try to think about how to be creative about this problem,” SBA Pro-Life America Director of State Affairs Kelsey Pritchard told the Washington Examiner.
Little recently signed an “abortion trafficking” bill into law making it illegal to help minors obtain abortions without parental consent, which he says is aimed at protecting young girls from being trafficked to other states to terminate their pregnancies.
Violators of the law face two to five years of imprisonment and can be sued by the child’s parent or legal guardian. It also allows the attorney general’s office to pursue charges if the local prosecutor declines.
The bill is the first of its kind in the country and is one way to test certain restrictions on interstate travel for abortion.
Some other options, Pritchard noted, are expanding safety nets within states to make it easier for women to bring their babies to term and care for them or put them up for adoption and streamline foster care systems, such as measures signed by Gov. Tate Reeves (R-MS) aimed at lowering demand for abortion.
Oregon, by contrast, is pursuing a bill that allows doctors to give abortions to anyone, regardless of age, and without parental knowledge or consent. The Beaver State also allocated $15 million for its Reproductive Health Equity Fund, which is aimed at paying for travel expenses and abortions for out-of-state abortion-seekers. A press release touting the bill says the measure is in direct response to Idaho.
Public funds for abortion tourism
States such as California and Oregon enacted similar sanctuary measures as Colorado but went further in creating public funds to pay for out-of-state abortion-seekers.
“Radical Democrat leaders see success as more abortion,” Pritchard told the Washington Examiner. “The abortion clinics that are seeing all this influx of traffic, they don’t see that as a burden. They see the profit and the dollars increasing. This is a business opportunity for them so that they can take more lives and make more money.”
California’s $20 million Abortion Practical Support Fund is expressly aimed at paying for women to come to the Golden State for abortion. That bill was one in a slew of other pro-abortion bills signed by Gov. Gavin Newsom (D-CA), who said in response to other states’ restrictions, “it’s more important than ever to fight like hell” to safeguard abortion, adding, “Our legislature has been on the front lines of this fight, and no other legislative body in the country is doing more” to expand access to abortion.
States in legal limbo
The legal patchwork that came out of the Dobbs decision both polarized states and put some states in legal limbo.
Wisconsin’s executive leadership is pro-abortion, but the Badger State is unique in that after the overturn of Roe, its 1849 total ban on abortion went back into effect. Attorney General Josh Kaul (D-WI) filed a lawsuit seeking a judgment that the pre-Roe law is unenforceable.
This issue also made it to Wisconsin’s ballot box this year, with a highly contentious state Supreme Court race that saw the outspokenly pro-abortion candidate Milwaukee Judge Janet Protasiewicz winning the election.
Montana and South Carolina are in legal limbo as well. Even though both states have either passed abortion restrictions or had trigger laws restricting the procedure go into effect after Dobbs, both state supreme courts have nullified the restrictions by creating the right to abortion in the states’ constitutions.
Several Montana abortion restrictions passed in 2021 have been blocked by courts, and the state maintains a right to “procreative autonomy” created by the Big Sky state Supreme Court in 1999. In addition, a November 2022 referendum aimed at protecting the lives of infants born alive after an attempted abortion failed.
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South Carolina enforced a heartbeat bill immediately after the overturning of Roe, but an early January 2023 state Supreme Court decision blocked the law permanently, with the court using its constitutional right to privacy as its reasoning.
The Palmetto State legislature has since failed three times to pass more restrictions.