Voiceover: This is The Takeaway with Melissa Harris-Perry.
Melissa Harris-Perry: Under Missouri's 2019 Law, HB 126, if Roe v. Wade is overturned by the Supreme Court, all abortion will be banned in the state. Until that day, Missouri lawmakers continue to chip away at what's left of abortion rights, and now those restrictions could extend to options beyond the borders of the state as well.
Taking a page from the Texas playbook, Missouri State Representative Mary Elizabeth Coleman recently introduced a proposal that would restrict medical abortions in Missouri, and allow residents to sue anyone getting or helping someone to get an abortion in another state. Here's Representative Coleman speaking with NBC affiliate KSDK earlier this month.
Mary Elizabeth Coleman: If you're aiding or abetting a woman who's trying to have an abortion, then you're going to be subject to these private enforcement actions. It means that a person in the state could sue because somebody has helped violate those laws and get around the protections that we have for the unborn.
Melissa Harris-Perry: With me now is Rachel Rebouché, Interim Dean of Temple University Beasley School of Law, and James E. Beasley Professor of Law. Welcome to The Takeaway, Rachel.
Rachel Rebouché: Thank you for having me.
Melissa Harris-Perry: Walk us through this a bit. What does Commons proposal, in fact, say?
Rachel Rebouché: It's an amendment to the amendment and it does two things. First, it tries to penalize out of state abortions, even if those abortions are legal in the place they're performed, so any Missouri resident who goes to Kansas or Illinois to seek an abortion, the provider who provides that abortion, and the person who assists the provider could be subject to this civil liability. It also tries to ban medication abortion in the States. Banning, as the bill describes, abortion-inducing drugs. That's basically the two main things that the amendment does.
Melissa Harris-Perry: Now, I can't even believe I'm about to say this, but doesn't that fly in the face of states' rights? Can one state make a law that follows its own residents to another state for enforcement? I thought only the federal government could make laws across state lines.
Rachel Rebouché: It's really a pioneering law in some ways. States have tried to do this. In fact, Missouri tried to do it in 2007, which is interesting, because the Missouri Supreme Court struck down that law. Was a law that tried to require young people, minors, to have parental permission for an abortion per Missouri's law, even if they went outside the state and sought an abortion in a place that didn't require parental permission.
The Missouri Supreme Court, this is 2007, said, "You can't do that. Missouri's laws don't apply in other states." That was a state case, it wasn't a federal case. Yes, it really does fly in the face of common sense to think that Missouri could impose its law anywhere else in the United States, in contradiction to that other state's law, but that's exactly what Missouri is trying to do. I think legislators know that it's the next frontier of the abortion battle, and are willing to test it out, willing to see if it sticks to the wall.
Melissa Harris-Perry: I'm going to come back to the issue of abortion in a moment, but I want to just stick with this for a moment because it seems to me that there are really broad constitutional legal implications here. With the passage of the 14th Amendment, American citizens became American citizens, not only citizens of our state. I'm not even sure whether or not I would be understood as a citizen of North Carolina, where I live and work, or am I a citizen of New York, because I work for a company that is out of New York, or am I a citizen of the state of Virginia where I spent much of my childhood, or maybe of the state of Louisiana since, after all, that's where my husband and I were married and spent our early-- Wait a minute, I'm an American citizen. How could the state laws follow me around?
Rachel Rebouché: It's such a great point, and it speaks to what we take for granted as Americans. The Constitution has protected the right to travel so that we can move between states without some fear of penalty that impedes that movement. Our Constitution protects interstate commerce. We can seek healthcare in different states. States can't keep other states from offering services that would shield that commerce.
We protect citizenship, we have full faith in credit, privileges, and immunities. There's all these provisions of the Constitution that protect just what you described, that there should be cooperation and [unintelligible 00:05:32] between the states, people should be able to move across and around the country.
I think there are good reasons to think that Missouri's Amendment would be unconstitutional because it offends those basic ideas that if I want to go gamble, and gambling is not legal in my state, I can drive or fly to another state and won't be prosecuted or sued when I get back home.
There's reasons to be skeptical that those constitutional doctrines will apply in the abortion context. Those areas of law haven't been developed in relationship to abortion, there is just one really early case that deals mostly with the First Amendment. Though it seems intuitive that this law must be unconstitutional, even un-American, it's not clear that the Supreme Court or maybe some circuits would agree.
Melissa Harris-Perry: I'm wondering if this is related to the very simple geography of Missouri and Kansas. The fact that Kansas City literally exists on both sides of the state line, if this is actually less about getting on a plane and flying to New York or heading down to Louisiana, and really is about the fact that you don't have to fly or even drive, you can stand with one foot in Kansas and one foot in Missouri.
Rachel Rebouché: I think that's absolutely right. I think this bill is in third, I should say the amendment is in anticipation of what a lot of people think is going to be the future of abortion rights and abortion care. That's, if the Supreme Court overturns Roe v. Wade and Casey or at least guts those cases to the point that they don't really provide meaningful constitutional protection for abortion rights, then states like Missouri, about half the states in this country are going to criminalize, prohibit, ban all or almost all abortion. Lots of folks agree that that's what the country is going to look like.
There's a series of interstate conflicts between states that want to ban abortion and states that don't. I think the Missouri Bill shows us that states that seek to end abortion are not going to stop with banning abortion within their borders, the goal will be to ban abortion everywhere.
Melissa Harris-Perry: Is it possible for the federal government through lawmakers, not in this case through the courts, to intervene to protect access to medical abortion, to protect access to surgical abortion if the Supreme Court rules in such a way that truly guts Roe v Wade?
Rachel Rebouché: Yes. Two fantastic co-authors, both law professors, Greer Donnelly and David Cohen, and we've been writing together about what that future looks like for states and the federal government who seek to protect abortion rights. Just one example on the federal side, the FDA could further lift restrictions on medication abortion. It could remove, for instance, the certification process that applies to providers. Medication abortion will be available through certified pharmacies and it could ensure that that process enables pharmacies to dispense medication abortion broadly.
The FDA could issue clear guidance that its policy preempts state policies on medication abortion, that it basically owns that space, and as the federal drug approval program, that what it says goes. That when it declares a drug safe and effective, states can't try to remove it out of the national stream of commerce, can't ban it on their own.
Then there are other things that the federal government can do that are even bolder, and certainly have not been tested or tried, but federal law applies to federal land and federal government could lease that space for abortion care hasn't been done. [chuckles] Whose know if it's possible, but there's a range. I think there's a spectrum of things that the federal government could do to protect abortion rights.
States, I think this is really the most exciting set of proposals, states that are thinking about this impending future too are writing bills now that seek to protect their providers, protect their patients, protect their residents, protect people who are helping others seek abortion care from being extradited, from being prosecuted, from being sued, in a way that the Missouri bill would allow. Building funds, increasing capacity to serve the people who are going to travel to those states once abortion is illegal in their own state.
Melissa Harris-Perry: Rachel Rebouché is the Interim Dean of Temple University Beasley School of Law. Thank you so much for joining us today.
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