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Almost half of the states plan to ban or limit abortion if Roe v. Wade is overturned

AYESHA RASCOE, HOST:

If Roe is indeed overturned, it's expected that about a half of states will ban or severely limit abortion. What's less clear is what the next stage of the legal battle might look like as pregnant people in states where abortion is banned across state lines to receive abortions in states where it's still legal. We're joined now by David S. Cohen, a professor at Drexel University's Kline School of Law, who co-authored an upcoming article on cross-state legal issues connected to abortion. Thanks for being with us.

DAVID S COHEN: Thanks so much for having me.

RASCOE: Missouri lawmakers considered legislation earlier this year that would allow private citizens to sue anyone who helped a Missouri resident obtain an abortion out of state. If Roe is overturned, do you expect states where abortion is banned to pass legislation or try to pass legislation meant to limit abortion beyond their borders?

COHEN: Absolutely. This is the next frontier in anti-abortion legislation because states are not going to rest knowing that they've stopped abortion within their borders. An extreme anti-abortion legislature is going to want to stop as much abortion as they possibly can. And short of a national abortion ban, one way they can do that is try to stop their residents from going to other states to get abortions where it is legal.

RASCOE: Louisiana lawmakers are moving forward with a bill this week that classifies abortion as a homicide. And it would mean that a patient or provider who ends a pregnancy could get criminally charged. Would something like that apply to Louisiana residents who get an abortion in another state or to health care professionals who may provide it in another state? Because I think, like, homicide would seemingly, like, cross state lines, right? Like how would something like that work?

COHEN: I think what we're going to see is aggressive local prosecutors who want to make a name for themselves or just are true believers in the anti-abortion cause trying to apply these state laws to crimes that happen in other states. Let me be clear - I don't think that is constitutionally allowed, but I think they're going to say the effect of the crime is in our state, or the crime started in our state because that developing of the criminal mindset happened in our state.

RASCOE: On the other side of that, you have places where the state government is supportive of abortion. And they are passing or considering laws that seem to anticipate this, including this Connecticut law that would prevent abortion providers from being extradited to other states, right?

COHEN: Yeah. My co-authors and I have been encouraging states like Connecticut, California, Illinois, New York to protect their providers and others in the state who help patients from out of state getting abortions there. And there are things they can do. We saw a law passed and signed into law this week in Connecticut where the governor signed a law saying, our courts are not going to cooperate with out-of-state investigations, nor will we, as you said, extradite people for these out-of-state prosecutions. And so that means that people who go to those states to get abortions can feel safe knowing that they can get an abortion safely there. And the abortion clinics and providers can be safe knowing they can care for patients who come from out of state.

RASCOE: And so you've kind of laid it out before, but maybe just lay it out very specifically about the powers that states have to try to get people who do things beyond their borders.

COHEN: So it's not set in stone what powers states have across their borders, but it is a gray area in the law. I mean, look. When we travel around this country, we think as long as we're following the laws of that state where we are, then we are legally okay. But unfortunately, the law isn't clear about that. And there are circumstances where some people believe - and we believe the anti-abortion states are going to try - to apply their laws against the state. So whether it's criminalizing traveling out of the state to get an abortion or criminalizing the acts of someone who murders what the state now thinks is a citizen of that state, we believe they're going to try.

RASCOE: I mean, it just seems like when you talk about, you know, things being tricky or gray areas or things like that, generally, what happens when you have all these gray areas - don't they go to the Supreme Court? Am I thinking of this wrong? Like, does this end up getting litigated again?

COHEN: Yeah. Some of this is going to go back to the Supreme Court. And if the Supreme Court thinks that by overturning Roe, it is getting out of the abortion business, they're sorely mistaken because many of these issues we've been talking about are going to return to the court, plunging it back into the abortion wars. They are not going to escape this.

RASCOE: David S. Cohen, professor of law at Drexel University's Kline School of Law, thank you so much.

COHEN: Thank you. Transcript provided by NPR, Copyright NPR.