As the debate over abortion access plays out across the country, Senate Republicans appear divided over the issue of protecting travel across state lines to seek reproductive care – and whether individuals or health care providers should be held criminally liable if they do so.
A heated back-and-forth between Sen. Catherine Cortez Masto, D-Nev., and Sen. James Lankford, R-Okla., on Thursday highlighted ongoing tensions in Congress over the issue, when the GOP lawmaker blocked unanimous consent on legislation introduced by Cortez Masto to protect the rights of Americans traveling between states to seek abortion care.
“The conversation today is not just about women. There are two people in this conversation,” Lankford said on the Senate floor Thursday. “This is a child in this conversation, as well.”
“No state has banned interstate travel for adult women seeking to obtain an abortion. This seems to be just trying to inflame, to raise what-ifs,” he added.
The Oklahoma Republican’s comments – particularly, his use of the word “adult” – appeared targeted at a highly-publicized case in which a 10-year-old girl from Ohio was forced to travel to Indiana to get an abortion after being raped.
While it’s true that no state has yet to introduce a ban on traveling for abortions, some questions are already popping up. Indiana’s attorney general Todd Rokita on Thursday threatened to pursue action against Dr. Caitlin Bernard, the doctor who provided the abortion to the child. Rokita said his office was probing whether Bernard complied with state law that required her to report both the allegations of abuse and the termination of the pregnancy.
“The failure to do so constitutes a crime in Indiana, and her behavior could also affect her licensure,” Rokita wrote. “Additionally, if a HIPAA violation did occur, that may affect next steps as well. I will not relent in the pursuit of the truth.”
Hours later, the Indianapolis Star reported it had obtained documents proving Bernard had, in fact, notified the Indiana Department of Health and the Department of Child Services of the procedure and rape allegation before terminating the pregnancy.
And the issue of traveling for abortion-related care is playing out in other ways across state lines, with some institutions – including Planned Parenthood of Montana – saying they will not provide abortifacient drugs to out-of-state patients for fear of future litigation.
Still, Lankford’s objection means the Freedom to Travel for Health Care Act of 2022 will have to go through a longer process before reaching a vote, though it is unlikely that Democrats will be able to gain the necessary Republican votes to pass the filibuster.
A number of GOP lawmakers agreed with Lankford’s stance – including Louisiana’s Sen. Bill Cassidy, who told Politico the travel bill was just for show.
“How are you going to keep somebody from traveling (for an abortion)?” he said. “That’s silly. And they know it’s silly, but they’re just trying to fool the American people into thinking they’re doing something significant.”
Sen. Mike Rounds, R-S.D., a lawmaker who is staunchly anti-abortion and whose state has one of the most restrictive laws about the procedure on the books, said he does not think the Senate will ultimately pass legislation to protect interstate travel for those seeking abortions, nor does he believe state legislatures would be able to enforce such travel restrictions anyway.
“In this particular case, I think once the states have made their decisions, I think you’ll find that most of them will recognize that they can’t stop an individual from freely traveling from one state to another,” he told NBC News.
But other Republicans took a different approach, with at least two Senators saying limiting travel would unconstitutionally restrict Americans’ freedoms – though they did not expressly say they supported the Cortez Masto bill.
On Wednesday, Sen. Chuck Grassley, R-Iowa, told reporters he would not support travel bans for those seeking abortion care, as unrestricted movement is “one of the principles of freedom in America.”
“We cannot stop people from traveling anyplace they want to […] It’s a constitutional issue and a freedom,” he said, as was first reported by the Des Moines Register.
Grassley had a measured response to the Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization, where he commended the move to return “abortion policy decisions to the people and their elected representatives,” noting that the late Justice Ruth Bader Ginsburg had herself had taken issue with the fact that federal protections for abortion offered in Roe v. Wade focused on the right to privacy, not necessarily on a woman’s right to choose.
“For many Americans, including myself, this decision is about far more than correcting a flawed legal analysis in Roe; it means that the rights of the unborn are no longer in jeopardy by our federal government,” Grassley wrote in late June, adding: “This ruling does not ban the practice of abortion but instead empowers the people, through their accountable elected representatives to make commonsense policy decisions. It takes policymaking out of the hands of unelected judges.”
Grassley has also declined to support a nationwide ban on abortions, telling The Gazette his reasoning is “pretty simple.”
“I’ve been fighting for 50 years for this to be returned to the states,” he recently told the outlet.
Fellow Republican Sen. Rand Paul, R-Ky., told reporters earlier this week: “No state has the right to prohibit travel,” as was reported by NBC News, adding that interstate travel is a Constitutional right guaranteed and recognized by the Supreme Court.
And Sen. Rick Scott, R-Fla., told NBC News on Wednesday that while he had not read the bill, he generally believed Americans should not be restricted from interstate travel – even in cases where they must travel for abortion care.
Sen. Susan Collins, R-Maine, a Republican who supports abortion rights, did not comment about the specific bill introduced by Sen. Cortez Masto, but told reporters that she supports the rights of Americans to travel for medical procedures.
“I certainly do want people to be able to travel freely, just as they can for any medical procedure,” Collins said Thursday to HuffPost. “So I don’t think abortion should be treated differently.”
Worth noting is also Supreme Court Justice Brett Kavanaugh’s concurring opinion in the Dobbs ruling, in which he plainly wrote that travel bans for individuals seeking abortion care would be unconstitutional.
“May a state bar a resident of that state from traveling to another state to obtain an abortion?” Kavanaugh wrote in part, answering: “In my view, the answer is no based on the constitutional right to interstate travel.”
That view was supported by Attorney General Merrick Garland, who wrote that “women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal,” meaning the Department of Justice would likely act quickly against a state that tried to impose such restrictions.
But it hasn’t stopped some lawmakers from proposing such laws.
South Dakota Gov. Kristi Noem said there will likely “be a debate about” whether or not her state will implement a travel ban for those seeking abortion care. And even before the Supreme Court’s ruling, a Missouri state lawmaker proposed allowing private citizens to sue anyone who helps a resident have an abortion, including those who transport the patient across states lines and the out-of-state doctor. And the Thomas More Society, a conservative legal organization, is drafting similar model legislation for state legislatures, The Washington Post reported.
Spectrum News’ Ryan Chatelain contributed reporting to this article.