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Highways Are the New Battleground

Alabama AG Steve Marshall has argued in court that he can prosecute anyone who helps a woman travel out of state to get an abortion. This could mean a neighbor who drives her to North Carolina or maybe a gas station attendant who filled up her car just off I-59, even though he had no idea he was abetting an abortion. Or maybe the airline check-in agent at the Birmingham Airport. If Marshall goes after only people who knowingly help facilitate an abortion, every defendant will claim they didn't know the woman's plans ("She told me she always wanted to go to 'Shindig on the Green,' so I thought that was her reason for going to Ashville"). Marshall cited an Alabama law saying that a conspiracy in Alabama to perform an act in another state that would be a crime in Alabama can be prosecuted in Alabama.

Of course, once you go down the road of criminalizing plans to go to another state to do things that are not legal in the home state, that opens to door to all kinds of stuff. Could planning a trip to go to Las Vegas to gamble be prosecuted in a state where gambling was illegal? What about someone planning a trip from California to Texas to buy an AR-15, which is legal in Texas but not legal in California? There would be no end to it. Of course, the Constitution gives Congress the power to regulate interstate commerce, not the states. An attempt to criminalize an attempt to go to a different state to go do something legal there would probably run afoul of this power.

Actually enforcing such a law would require a police state. Would all women of child-bearing age be forced to take pregnancy tests when leaving the state and when reentering it? Would this violate the Fourth Amendment ("no unreasonable search and seizure")? If Alabama really went that route, would businesses want to open facilities in Alabama? Would Alabama become a pariah?

Alabama isn't the only jurisdiction trying to politicize the roads. Several counties and towns in Texas have passed ordinances making it illegal to transport anyone on local roads for the purpose of getting an abortion. In many others, similar ordinances are pending. The laws generally allow any private person to sue any person or organization suspected of violating the ordinance. Since these would technically be civil suits rather than criminal proceedings, the standard of proof would be "preponderance of evidence," not "beyond a reasonable doubt." Neighbors would be suing neighbors. It would be hell and everyone in Texas is armed to the teeth.

Anti-abortion activists are focusing on main roads around airports, roads that connect to the Interstate Highway System, and roads that lead to other states. There has been a huge battle in Llano, TX, a town of 3,200 which is smack in the middle of the state and the junction of several main roads that cross the state east to west and north to south. Many of the counties on the border with New Mexico are working on similar ordinances because although Texas bans nearly all abortions, New Mexico allows them at any point a doctor deems necessary. But as in Alabama, are state troopers going to stop every car traveling in either direction between the states and interrogate all the women at gunpoint? Would the Supreme Court allow that?

In some other places the battle is muted. Door County, WI, is a bellwether county. It has voted with the winner in every presidential election since 2000 and all but two times in the past 50 years. It also voted with the winners in all state and federal races in 2022. Republicans there realize that abortion is a huge problem for them. At the county fair, Republicans had a booth with small cards showing fetuses, but they kept them almost out of sight.

County Republicans understand that abortion galvanizes the other side as much as it galvanizes their side and far more people are on the other side. If abortion is the main issue in 2024, they will lose. The conservative state assemblyman whose district includes Door County, Joel Kitchens, is worried that abortion could box his party in. He saw Tim Michels (R) lose the gubernatorial race last year while opposing abortion against a candidate, Gov. Tony Evers (D-WI), who is pro-choice. He thinks that banning abortions except for rape and incest is a good compromise, but is dimly aware that position is not a winner. On the other hand, the County GOP chairwoman, Stephanie Soucek, disagrees and wants to ban all abortions, period. Kitchens doesn't really want to get into a fight with Soucek and end up somewhere in the middle when he realizes even his position is a loser, let alone hers. But the battle goes on, even in the Upper Midwest. (V)

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