Note: As the aftermath of the Dobbs decision reversing Roe v. Wade (SCOTUS 6/22) continues to reverberate across the country, Legally Speaking™ focuses, as it has since its beginnings, more closely on presenting and reflecting on the impact and the potential implications of legal developments on the assisted reproductive technologies.

To follow fast-breaking legal developments on abortion access and restrictions, excellent on-line resources, updated almost daily, are available that track developing legislation and litigation.

Despite assurances by Supreme Court Justice Kavanaugh in the Dobbs decision that the constitutional right to travel would not be affected by the Court’s decision or by various anti-abortion laws states might chose to enact within its own borders, ant-abortion efforts do not seem to have stopped at state borders.  Recent examples include Idaho, which has passed anti-abortion statutes that implicate the right to travel, including an almost total ban on abortion as well as an anti-abortion “trafficking” statute that would restrict minor residents from traveling out of state for abortion services without parental consent and penalize those who aid them in doing so. The Idaho law directed solely at pregnant minors should obviously have no impact on ART arrangements. On a local level, border-town and so-called “Sanctuary” cities have passed or are considering similar restrictions for adults, a large number of which have been passed in Texas. Both raise constitutional concerns and, as applied to adult residents of these states, carry potential implications for interstate surrogacy arrangements.

Idaho’s most recent law, HB 242, directed at minors (enacted in April 2023) makes it illegal for anyone to either obtain abortion pills for a minor or to help a minor leave the state for an abortion without their parents’ knowledge and consent. Penalties include 2-5 years in prison, and potential liability to the child’s parent or guardian. In an effort to meet constitutional objections, the law was crafted only to criminalize the in-state portion of the travel, although the only purpose of in-state travel is to travel out-of-state to obtain a legal abortion in another jurisdiction. Planned Parenthood has called the law “despicable,” and warned it will isolate and put young people in danger, including those in abusive situations.

Idaho’s already strict abortion ban is also being challenged by the ACLU on behalf of a regional Planned Parenthood affiliate and two Idaho physicians after Idaho’s attorney general issued a legal opinion interpreting it’s strict abortion ban to include a prohibition against Idaho physicians referring patients to out of state providers or issuing prescriptions for anti-abortion medications to be picked up out-of-state.  The ACLU argues the law as interpreted by the state’s attorney general violates constitutionally protected First Amendment rights to free speech and the Commerce Clause.

In Texas, local ordinances that would make it illegal to drive through a city of town for the purpose of obtaining an out-of-state abortion have reportedly passed in a number of Texas cities and counties including two in the past several months and at least one pending as of publication. According to the proponent of these restrictions, Right to Life East Texas Director Mark Dickson, seventy-one “Sanctuary Cities for the Unborn” have passed in the US with fifty-two of them in Texas. According to Dickson, “This really is building a wall to stop abortion trafficking” because “the unborn child is always taken against their will.”

Restrictions on interstate travel for pregnant adults for the purposes of obtaining legally available reproductive care in another jurisdiction, including terminations or selective reductions, could have significant impacts on interstate surrogacy. Most interstate surrogacy contracts include a choice-of-law provision and participants will likely be advised to and choose the more liberal law where available. Such contractual arrangements, however, may be ineffective against a restrictive state’s laws and ordinances that seek to impose their anti-abortion “trafficking” law against a resident gestational surrogate, or those who would aid or advise her, under the argument that the state is seeking solely to protect the “unborn child” who was neither a party to any contract or able to consent to the travel.  Professionals who assist in third-party ART arrangements involving residents of states with strict anti-abortion laws and ordinances should be mindful of these potential vulnerabilities for their clients and themselves.

https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588