Abortion Restrictions Aren’t Just a Red-State Issue

Since the Supreme Court’s Dobbs decision overturning Roe v. Wade, every week brings new abortion-related headlines from across the nation. So-called permissive states are taking steps to protect or expand pregnant persons’ access to reproductive health care, while so-called restrictive states are taking steps to limit such access, often with civil, criminal and administrative penalties attached to violations.

Colleges in permissive states might be tempted to write off restrictive states’ regulations as red-state political issues that are hundreds or thousands of miles away and won’t touch their campuses. (These restrictions may even drive enrollment at institutions in permissive states, as some have suggested, with progressive students eschewing institutions in restrictive states.) This is not a prudent approach. Colleges in permissive states should give serious thought to the direct impact that restrictive states’ enforcement may have on their campus communities—including the very real possibility that faculty, staff or students may be criminally indicted or investigated—and should plan accordingly.

The Laws at Play

Before delving into examples showing how restrictive states’ enforcement could reach institutions in permissive states, I offer a brief overview of Texas’s abortion laws. Texas’s laws are some of the most restrictive in the country, and Texas is a bellwether on these issues, with other conservative states often following its lead. And given Texas’s size, it is likely that most institutions in permissive states have some connections to Texas, such as members of the campus community who hail from Texas.

Texas has passed several recent laws criminalizing and regulating abortion. Some of these laws also include provisions stipulating that Texas never repealed its pre–Roe v. Wade laws criminalizing abortion. Texas’s abortion-related laws include the following:

• A civil “bounty” law, SB 8, that creates civil liability for any abortions performed after six weeks of pregnancy. Private parties enforce the law and are entitled to $10,000 if they win a lawsuit. The law extends liability to anyone who aids or abets an abortion that violates SB 8, including paying for or reimbursing abortion costs.
• A trigger law, HB 1280, that imposes civil penalties up to $100,000, criminal penalties up to 99 years in prison and administrative penalties (mandatory revocation of a health-care professional’s licensure) for any abortion performed that doesn’t satisfy the law’s limited medical exceptions. The Texas attorney general enforces the trigger law.
• Pre-Roe criminal laws that impose two to five years of imprisonment for any person who administers any drug or medicine to a pregnant woman and thereby procures an abortion. Any person who “furnishes the means” for procuring an abortion is also liable as an accomplice. Local district attorneys throughout the state of Texas enforce these laws. (Some have publicly stated they will not enforce the laws, and some legislators are discussing introducing legislation that allows other prosecutors to step in in such cases.)
• Sanctuary city laws criminalizing abortion in various local municipalities. Local district attorneys will also enforce these laws.
• Existing homicide statutes that can be applied to “an unborn child”; these statutes require the death of an “individual,” which is defined as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” Local district attorneys will also enforce these laws.
• A law, SB 4, restricting the availability of abortion medication, including by delivery and mail service, and making any violations a felony.

Importantly, several of these laws, including SB 8 and the pre-Roe laws, extend liability to those who aid and abet or “furnish the means” for an abortion. This means that liability may apply not only to the doctor or health-care provider who performs an abortion, but to many others. Precisely how far the liability extends is unclear and will be a topic of much litigation, but it may potentially include individuals who pay for abortions or abortion-related travel, assist with travel (i.e., driving a pregnant person to an appointment), assist with logistics (i.e., booking an abortion appointment with a clinic), provide information to a pregnant person about how or where to obtain an abortion, or take other such steps.

Some Texas legislators are also concerned that out-of-state abortions may not be adequately covered by the existing laws, so they may introduce new legislation in the next term, which begins in January 2023, focused specifically on out-of-state travel and payment for travel.

As a general matter, most of the above laws will not apply to the pregnant persons themselves, just those who perform an abortion or assist in some way. However, prosecutors may apply some of the laws to the pregnant person; for example, earlier this spring, a Texas woman was criminally charged under homicide statutes for obtaining an abortion (the charge was subsequently dropped).

How Restrictive States’ Laws May Apply on Your Campus

This may all still sound far away. But it’s not. Here are several examples of ways that Texas’s restrictive laws could reach college and university campuses in permissive states hundreds or thousands of miles away.

This is just a handful of examples for how abortion restrictions could impact your campus.

In each situation, there may be good arguments for why the conduct doesn’t violate the laws at issue, why Texas courts or prosecutors don’t have jurisdiction over the conduct (including arguments concerning the constitutional right to travel), why aiding and abetting liability doesn’t apply, why an institution’s home state’s protective measures might insulate some of the conduct, or any of a host of other defenses. But these arguments must be heard by a court. In the interim, the implicated individual(s) will need legal representation and may need to post bond/bail. The institution will need to determine if it will pay for the individual’s legal representation, among other important and pressing questions. For example, will the institution fire a staff member who is charged with aiding and abetting an abortion? Will the institution begin tenure-revocation proceedings for a tenured physician who is criminally charged for performing an abortion? Will the institution expel or otherwise discipline a student who is under criminal investigation for conspiracy to violate one or more abortion laws?

The answers to such questions will depend on the unique circumstances of each case. And how to proceed may be a complicated issue implicating the institution’s core values and any religious affiliation. Whichever way a college proceeds may alienate members of the campus community.

Thinking Proactively

Here are some of the steps that institutions can consider to prepare for these issues:

• Gather key stakeholders to discuss how your campus can address these issues if and when they arise. These stakeholders will vary by campus, but might include involvement from: the president’s/provost’s office; general counsel’s office; compliance; student health services, including any campus pharmacy; any affiliated hospital; any medical, nursing or pharmacy school; human resources; the dean of students; campus police; and faculty, staff and student leaders.
• Once the key stakeholders are identified, determine who from this broader group should be the dedicated contacts for these issues.
• Consider performing a risk assessment to determine high-risk areas to proactively address, such as internships or remote workers in restrictive states, policies regarding telehealth visits in restrictive states and policies surrounding shipping abortion medication out of state.
• Consider performing one or more tabletop exercises to gauge and plan your response. Consider how different factual scenarios may impact your response.
• Ensure dedicated individuals are staying on top of relevant developments and informing the broader group as needed.
• Give thought to the circumstances, if any:
  • Under which your institution will pay bail for a faculty member, employee or student who is criminally charged. If appropriate, update your policies and handbooks.
  • Under which your institution will pay for legal representation for a faculty member, employee or student. If appropriate, update your policies and handbooks.
  • Under which there may be employment (faculty, staff) or enrollment (student) ramifications if a member of the campus community is sued or criminally charged. If appropriate, update your policies and handbooks.
• Evaluate your relevant insurance policies and determine if you need to make any modifications.
• If your institution offers a travel benefit that covers or could cover reproductive health care, and your institution has remote workers in restrictive states, consider any risks stemming from this policy. This may require consulting with your medical plan or whoever administers the benefit.
• Evaluate any protective measures your state has taken regarding abortion access and how they might apply.

We all hope that scenarios like those outlined here will not lead to civil lawsuits, criminal investigations or criminal charges in the coming months and years. But institutions should not rely on that hope to ignore the potentially far-reaching impact of restrictive states’ abortion laws.