Shortly after the United States Supreme Court issued its ruling in Dobbs v. Jackson Women's Health Organization, pro-life Republicans, joyful at an outcome they had spent nearly 50 years and billions of dollars to achieve, proposed something extraordinary and profound.
Public officials--all Republicans--in Arkansas, Missouri, South Carolina, and Texas, to name a few, stated they hoped to enact a law that would make it a crime for a citizen of that state to travel elsewhere to receive an abortion. It is the next step in a rapid and sinister decline of human rights, bodily autonomy, and constitutionalism in America.
In the immediate aftermath of Dobbs, many corporations stepped forward to ensure compensation for their employees who may need to travel out of state to seek an abortion. There is nothing novel about the declaration; corporations have been supporting employees across the spectrum of reproductive health from family planning, counseling, prenatal health, birth planning, maternity and paternity leave, and even adoption.
Be that as it may, the pro-life movement saw it as a political and legal opportunity.
In Arkansas, state Sen. Jason Rapert stated he wants to punish corporations who support women that need to travel to receive an abortion. In a statement to 40/29 News, Rapert said, "We are interested in stopping abortion trafficking. And that is where they're trying to traffic individuals and put money in the coffers of the abortion industry and circumventing these abortion bans."
Without seeing precise language of a bill, it is difficult to understand what he means by "trafficking." I presume it is an attempt to liken the issue to human sex trafficking, which the federal Trafficking Victims Protection Act defines as "Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age."
Senator Rapert also said, "So for instance, Dick's Sporting Goods, Bank of America and some other companies have said they're gonna pay people to travel and get abortions. Well, what about the shareholders. We believe this is an illegal use of shareholders' money."
There is a lot happening in his statement, to be sure, and it is very easy to be confused by the admixture of legal mumbo-jumbo. Be that as it may, Senator Rapert, despite nearing the end of his service in the Arkansas Senate, hardly seems interested in fading away. And as preposterous as this rhetoric is, the Arkansas General Assembly is at times a haven for bad ideas.
In one breath, Senator Rapert suggests that corporations are inducing women and girls to engage in criminal activity, which is of course not true. In another, he claims a civil right of action, akin, I think, to a shareholder derivative lawsuit.
Senator Rapert appears to believe that the state can assume the position of shareholder and declare such corporate policies illegal sua sponte. That is not right. States do not become shareholders or members of a corporation by legislative decree. As such, it is practically impossible to overcome the standing requirements in Rule 32.1(b)(1) of the Federal Rules of Civil Procedure. While that may seem arcane, it is important. Standing to state a legal claim matters a great deal in adjudication.
Also percolating in the public domain is the larger question of whether a state can criminalize women and girls who cross state lines to receive an abortion.
State sovereignty is a hallmark of the American experiment. It is right that in some instances America behaves as one nation. But it is also right that in other instances America behaves as 50 states. It is antithetical to the American experiment that one state can tell another state how to behave, and comity has fortunately prevented such confrontations. Thus, the short answer is no.
In the days following the Dobbs ruling, a child-abuse doctor in Ohio discovered that a 10-year-old girl was pregnant. At that time, Ohio had already outlawed abortion. The doctor, abiding appropriately by her Hippocratic Oath, contacted a colleague in Indiana, where abortion was still legal, to treat the victim. The child was forced to travel several hours across state lines to receive care. Should Ohio be permitted to criminalize that young girl for seeking this form of legal medical care in Indiana? Absolutely not.
After all, is it not horrific enough that in Arkansas and elsewhere, a victim of child rape is legally required to carry the baby to term?
As a result of Dobbs, state-sanctioned victimization of women and girls has begun. It is similar human tragedy to that taking place under harsh rule of the Taliban and ignoble governments in Chile, El Salvador, Honduras, Nicaragua, and Poland. It is also the philosophy and social structure of the Sons of Jacob in that imagined dystopia called Gilead.
Blake Rutherford, an attorney, is a Little Rock native. He can be reached at [email protected].