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Opinion Biden’s new move on abortion hints at big red-vs.-blue battles ahead

Los Angeles police officers arrest an abortion rights demonstrator. (Etienne Laurent/Shutterstock)

In the wake of the Supreme Court’s overturning of Roe v. Wade, President Biden has faced intense pressure to use federal power to protect abortion rights. And on Friday, the White House announced an executive order that takes a serious step in that direction.

That’s good news, but buried in the order are provisions that hint at looming troubles in our evolving national battle over abortion. It’s a story in which red states pursue women seeking abortions across state lines, which may become common in our Brave New Post-Roe World.

If states will essentially be at war over abortion rights — with red states not just racing to pass ever-more-punitive bans but also reaching across state lines to target quarry, and blue states mounting defenses against that — then federal power may be applied to mediate. A big question is what that will look like in coming years.

In a sense, Biden’s executive order begins mapping out that unknown territory. It will reportedly safeguard access to various types of reproductive health care, promote safety of patients and providers, and marshal coordination across federal agencies in defense of abortion rights wherever possible.

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But the executive order also contains these moves:

  • It instructs the attorney general and White House counsel to convene private pro-bono lawyers and public interest groups to defend women targeted for traveling out of state for reproductive care, and to defend doctors who provide it.
  • It directs the attorney general to provide technical assistance to states protecting their providers if they administer abortions to patients who cross state lines to get them.
  • It issues guidance on federal standards telling doctors and health-care providers that they are not required — or are sometimes prohibited from — disclosing patients’ private health information, even to law enforcement.

All these could bear directly on coming battles among states. Right now, antiabortion activists and red-state politicians are developing proposals to criminalize when a woman from a state that has banned abortion seeks care in a state where it’s legal.

These state efforts include ideas like authorizing residents of antiabortion states to bring vigilante lawsuits against women seeking treatment elsewhere. These efforts may also target people who help those women, possibly including people in blue states — though how far that’ll get is unclear.

Patients crossing state lines for abortions and facing such prosecutions, then, might benefit from legal assistance marshaled by the feds.

Leah Litman, a professor at the University of Michigan Law School, says such prosecutions might arise in two ways. First, they might proceed from something that’s being discussed on the right: New laws that explicitly criminalize the act of crossing state lines to seek an abortion.

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But a zealous prosecutor could also pursue a case even if such a law isn’t passed. They might argue that a woman who crossed state lines entered into a conspiracy to break her home state’s law against abortion, Litman says.

Either way, federal assistance might benefit women facing such prosecutions. It might also benefit providers who legally administer abortions to those women but then face prosecutorial efforts across state lines.

And the forthcoming federal guidance will tell those providers they’re not obliged to provide information about care they gave to those women — or are barred from providing such information — if a prosecutor from an antiabortion state seeks it. This could also constrain law enforcement in pro-choice states that may want to cooperate with such a prosecutor.

“The executive order seems designed to support people who travel out of state in order to obtain abortion care,” Litman told me. She noted that this includes “guidance or protections to providers offering their services to reproductive refugees.”

There are limits to federal action. As Post reporter Caroline Kitchener points out, Biden lacks the power to protect women in anti-abortion states who seek medication abortion by mail from other states. That could still be criminalized — a big area of bitter contestation going forward.

The possibility that antiabortion states might try to reach across state lines has inspired many comparisons to the situation after passage of the Fugitive Slave Act of 1850, which required enslaved people who escaped to free states to be returned to enslavers.

Others have noted that the antebellum North’s reaction to that law is similar to pro-choice states preparing to defend women who seek abortions in them, as well as providers there, from antiabortion law enforcement efforts. A number of blue states have launched such defenses.

The situations, of course, are not parallel. But the comparisons are not mere provocation, either. As historian Lawrence Glickman told me, both involve an effort to deputize state officials and even private citizens to enforce laws across state lines that are “only technically operable in some states.”

In the coming state vs. state free-for-all over abortion, federal power will, in one way or another, play some role in mediating these conflicts — which of course gives rise to another possibility. If a Republican enters the White House in 2025, many efforts that Biden is putting in place — and others to come — may be rolled back or scrapped entirely.

And what that will look like is anybody’s guess.