Anti-abortion activists and elected officials hope to keep abortion seekers walled in within the borders of their home states.
In 1991, Kathrin K. and her husband were stopped by German border guards as they crossed back into the country on their way home from neighboring Holland on the suspicion they were carrying illegal drugs. Instead of drugs, however, the guards found “incriminating evidence”—specifically, a plastic bag containing a nightgown, sanitary pad and towels. These items suggested that Kathrin had crossed the border into Holland to obtain an abortion—a crime under German law, even if legal where performed. She was transported to a nearby hospital and subjected to a degrading forced vaginal exam.
It is difficult for me to imagine a day when guards are stationed at the Texas-New Mexico border, or along travel routes leading from an abortion ban state into a protective one, with the power to detain those transporting pregnant persons suspected of seeking cross-border abortion services. And yet, on my more cynical or despairing days, I wonder, given the latest plan by Mark Lee Dickson, a pastor at Sovereign Love Church in East Texas, aimed at halting so-called abortion trafficking, if this dystopic vision of intrastate abortion border guards might someday become a reality.
Before looking at this new initiative currently being seeded in Texas, it is helpful to know a bit about Dickson’s Sanctuary Cities for the Unborn Initiative—his first step towards the realization of a national abortion ban. The building of walls, to use Dickson’s image, aimed at preventing abortion seekers from leaving their home state, is an extension of this earlier initiative.
Dickson launched the Sanctuary Cities Initiative in Texas in 2019 with the goal of “protecting our cities by outlawing abortion, one city at a time.”
Animating his passion, as he explained in an interview with Vice News’ Meena Duerson, “I believe that abortion at its root is the throwing away of a human life. I view the unborn child as just as human as a born child … and the mother’s not more human than the unborn child, they are equally human.”
Today, Texas is home to approximately 50 sanctuary cities, and they have expanded into six other states, including the dreaded border state of New Mexico, which the Guttmacher Institute ranks as “very protective” of abortion rights, as well as the “protective” state of Illinois.
On the advice of attorney Jonathan Mitchell—who once argued that women do not need access to abortion to have control over their bodies, and rather just need to refrain from sexual intercourse—Dickson incorporated a novel private enforcement mechanism into the ordinances. Rather than locating enforcement power in the usual governmental officials, this approach instead vests it in the public at large. This serves to insulate the ordinances from judicial review by way of a challenge to their constitutionality, as it is not at all clear who can be sued.
It also incentivizes private individuals as bounty hunters by holding out the promise of civil damage awards for bringing lawsuits against abortion providers as well as “aiders or abettors.”
After having been tried out at the local level, the private enforcement mechanism was incorporated into Texas’ infamous six-week abortion ban, which the Supreme Court allowed to go into effect even before its decision in Dobbs v. Jackson Women’s Health. This result was condemned by the liberal justices as “flagrantly unconstitutional” and they charged their colleagues with having “opted to bury their heads in the sand.” As we now know only too well, this result was a harbinger of what was yet to come.
It’s the fear that’s the point. It’s the confusion that’s the point.
Neesha Davé, executive director of the Lilith Fund
In the wake of the Dobbs decision, in a seminal article, authors Cohen, Donley and Rebouché, warned that “[o]verturning Roe and Casey will created a complicated world of novel interjurisdictional legal conflicts over abortion.”
Driving this new reality, they predicted that abortion-ban states would seek to extend the reach of their criminal laws beyond their borders while abortion-protective states would seek to shore up or expand access for residents and non-residents alike.
This summer, Dickson jumped into this internecine fray. Holding meetings in mostly rural Texas towns, he warned his audiences of the dangers of groups, such as the Lilith Fund and the Texas Equal Access Fund, whom he claimed “are doing everything they can to help pregnant Texas mothers get into other states for the purpose of an elective abortion.”
To prevent this travesty, he urged towns and counties to promote ordinances “prohibiting abortion trafficking cartels from operating in areas under their jurisdiction.” Ramping up the rhetoric in Llano, which coincidentally happens to be located at the crossroads of highways heading into New Mexico, the only border state without a ban, he warned that a “’baby murdering cartel’” was coming for the pregnant women of Central Texas.
To date, two Texas towns and two counties have made it illegal to transport an individual who is seeking an out-of-state abortion on the roads under their authority. However, if Dickson succeeds in his campaign to persuade enough localities to make it illegal to assist a ”mother of an unborn child … in the killing of her child,” those seeking cross-border abortion services may find their path out from under Texas’ draconian ban an increasingly risky one, especially if trafficking is defined to include the provision of financial assistance.
Like the sanctuary city ordinances, these new measures also locate authority to enforce them in the general public, again incentivizing private parties as bounty hunters who are entitled to a civil damages award for successfully reeling in a trafficker.
Notably, however, the legal understanding of trafficking typically includes some degree of coercion or force—which presents a bit of a quandary for proponents, since pregnant persons are far more likely to be transported by a trusted confidant, rather than by a member of a “baby murdering cartel.” However, this is not a stumbling block for Dickson. As he sees it, the fetus is the trafficked party because “’the unborn child is always taken against their will.’”
As intended, casting the fetus as the trafficking victim serves to advance the view that the unborn child is fully human with an equal claim to life as one who is already born. This, of course, points the needle in the direction of fetal personhood.
In contemplating the trafficking of fetuses, one might logically ask: Why only make it illegal to transport them locally? Why not expressly ban their transport across state lines, as this is the outcome the ordinances seek to prevent? This way, abortion seekers would be more tightly enclosed within their home states.
But, according to Justice Kavanaugh (and many legal scholars), this restriction would contravene the “constitutional right to interstate travel.” Accordingly, keeping the travel restriction within a state—as Idaho has done with its law criminalizing the abortion trafficking of minors—is an attempted workaround of this constitutional concern.
This may prove to be a losing argument, as the ultimate outcome is the same—namely, deterring interstate travel by abortion seekers in restrictive states.
Seeking to protect the right of interstate abortion travel, Rep. Lizzie Fletcher (D-Texas) has introduced the Ensuring Women’s Right to Reproductive Freedom Act, which among other provisions, seeks to safeguard the rights of “patients who must cross state lines to obtain a safe and legal abortion, as well as anyone who helps them travel and their health care providers.”
Expressing his joy over the enactment of Goliad County’s ordinance making it illegal to transport someone on county roads for the purpose of obtaining an out-of-state abortion, Patrick Von Dohlen, who grew up in Goliad, explained:
“Today, five Texas men on the County Commissioners Court exhibited their faith in God and valiant courage … Goliad will be remembered again, but this time not for who was massacred here [in battles to win freedom from Mexico] but who was saved from being massacred. Goliad County and its residents will now officially help protect young girls from being sexually trafficked and many children won’t be murdered through abortion.”
In aiming to keep abortion seekers walled in within the borders of their home states, proponents of these measures ignore the risks of pregnancy and childbirth—which are carried disproportionately by marginalized communities, and celebrate coerced parenthood in the name of the fetus.
Assuming that the dystopic vision of border guards stopping those suspected of interstate abortion travel never becomes a reality, as Neesha Davé, executive director of the Lilith Fund, said, the “purpose of these laws is not to meaningfully enforce them. … It’s the fear that’s the point. It’s the confusion that’s the point.”
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