Merle Hoffman has been providing abortions to both New Yorkers and out-of-state patients since she launched Choices Women’s Medical Center in Queens in 1971. The opening came in the brief window between when New York legalized abortion and when the Roe v. Wade decision by the Supreme Court established abortion access as a constitutional right in 1973.
In recent years, Hoffman says she has partnered with groups that help people travel from states where it’s harder to get the procedure.
“What has really happened is that there is a kind of overground railroad with safe places that patients can go,” Hoffman said.
Currently, she said, those coming from out of state only make up about 5% of her patient base. Statewide, the portion is closer to 9%, and if Roe v. Wade is overturned, “that will definitely grow”, Hoffman said. Politico published a preliminary draft of a Supreme Court opinion that suggested America’s highest judicial body wants to remove abortion rights — which would likely leave access up to states. New York politicians responded with a deluge of assurances and open invitations to non-residents in need of these health care services.
But merely ensuring a place for out-of-staters may not be enough. In Missouri, where nearly 10,000 residents traveled to neighboring states for an abortion in 2020, lawmakers have proposed a measure that would allow people to sue anyone anywhere who provides an abortion to a Missouri resident, sends abortion pills to Missouri or otherwise “aids or abets” such a pregnancy termination.
Other states that want to ban or severely restrict abortions are also likely to try to extend their reach if Roe v. Wade is overturned, predicts David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law who specializes in the intersection of constitutional law and gender.
“Anti-abortion states are not going to settle with banning abortion within their borders,” Cohen told Gothamist. “They are going to want to stop as many abortions as possible.”
In a March op-ed in the New York Times, Cohen and his co-authors cautioned that the Missouri proposal represents “a new tactic in the coming abortion wars” and laid out the steps that states seeking to act as safe havens should take to protect their abortion providers from legal action.
New York State Assemblymember Charles Lavine, a Democrat from Long Island, told Gothamist it was Cohen’s op-ed that prompted him to introduce a trio of bills in late March that aim to increase legal safeguards for New York abortion providers. Similar bills were introduced by State Sen. Liz Krueger in her chamber.
One bill would prohibit New York courts from issuing subpoenas in connection with out-of-state abortion proceedings.
One of the bills would prevent the governor of New York from recognizing any demand from another state to extradite an abortion provider, as long as they were in New York when they performed the procedure. It would also protect those who prescribe abortion pills to patients in other states via telemedicine.
Another bill would prevent law enforcement agencies in New York from cooperating with any out-of-state agencies or individuals seeking to take legal action against a New York abortion provider.
A third would prohibit New York courts from issuing subpoenas in connection with out-of-state abortion proceedings.
The bills have gained sponsors since they were introduced — albeit more in the Assembly than the Senate — but Lavine said he wasn’t sure they would be able to compete with the many other pieces of legislation vying for lawmakers’ attention before the session ends on June 2nd.
Assemblymember Jessica González-Rojas, who also signed onto the bills, is more optimistic. She also introduced a separate bill last week that would enable the New York State Department of Health to issue grants to abortion providers and nonprofits to help them scale up their operations, which she said would be necessary if Roe v. Wade is overturned.
“We know our governor and our political leadership here in New York wants to ensure that every person can get the reproductive health care they need, no matter what,” González-Rojas said. “So I'm optimistic that we can advance some of these policies.”
Connecticut’s governor signed a law to provide similar legal protections to abortion providers last week. That legislation will also allow anyone who has a judgment entered against them in another state — not just for providing an abortion but also providing material support for getting one — to sue for damages in return.
Odile Schalit, executive director of the New York-based Brigid Alliance, said if Roe v. Wade is overturned, she is particularly concerned about the potential liability for groups like hers whose entire purpose is to help people travel to other states for abortions.
“We’ve got all these different groups of lawyers that we're pulling together to help us understand it,” she said. “And honestly they don't know what our risk is. It's very scary.”
Is there a credible interstate threat?
Missouri Rep. Mary Elizabeth Coleman, who is advocating for the controversial measure in her state, told Gothamist her primary goal was not to target out-of-state providers, but rather those in Missouri who are already helping residents get abortions elsewhere.
“If a Missouri resident calls a Missouri clinic that isn't doing abortions and her abortion is scheduled out of state, well, then that clinic is aiding and abetting violating the laws in Missouri,” Coleman said.
To be clear, abortions are still legal nationally until the Supreme Court decision is finalized, and an actual ruling isn’t expected until June or July. In Missouri, they are currently permitted up to 22 weeks — and in some cases beyond that. But the state is one of 13 with a “trigger” ban that would take effect if Roe v. Wade was overturned. Coleman said in that case, preventing any challenges to that state law would be her first priority.
But the language of the amendment Coleman is currently seeking to pass has the potential to be geographically far-reaching.
It’s still unclear whether there are circumstances when a civil lawsuit filed in Missouri against an abortion provider in New York would hold up in court. Cohen said it remains untested.
But if Roe v. Wade is overturned, it’s possible that states with abortion bans could try to bring criminal charges against abortion providers in other states, rather than relying on civil lawsuits, said Nina Ginsberg, a Virginia lawyer who co-authored a report on the criminalization of abortion by the National Association of Criminal Defense Lawyers (Disclosure: Reporter Caroline Lewis’ relative is one of three lawyers who co-authored this report). Still, Ginsberg said there would have to be some connection to the state where the crime was prosecuted.
She noted that the Missouri proposal seeks to make abortion pills contraband in the state. “If the drug was contraband, that would be enough,” she said. “The person who sent you the drugs could be prosecuted as part of a conspiracy or as an aider and abettor.”
It remains unclear how far people would go to try to target abortion providers in states like New York if Roe v. Wade is overturned, but Cohen said he has already heard concerns from providers about what their liability could be.
“This area of the law is very unclear,” he said. “It should be clear. We should be able to travel around this country and take advantage of the laws in the states where we are.”
Hoffman of Choices Women’s Medical Center acknowledged that lawsuits can be expensive and burdensome, but said she will not be deterred.
“I've been walking around with a target on my back for decades,” Hoffman said. “People are always threatening me. A lawsuit is not going to frighten me away.”