Update: Gov. J.B. Pritzker has signed a wide-ranging abortion rights bill that aims to block people in other states from suing or prosecuting abortion patients and providers in Illinois.
As top Democrats campaigned across Illinois in recent months, they vowed that the state would remain an island of abortion access in a sea of states that restrict the procedure.
But the end of Roe v. Wade and the constitutional right to abortion has raised a question state lawmakers have yet to address: Can abortion’s opponents in other states sue or prosecute people in Illinois?
Legal scholars say that could be the new front in the battle over abortion, and courts ruling over an uncertain legal landscape may let plaintiffs and prosecutors reach across state lines.
It’s a concern for Dr. Colleen McNicholas, who performs abortions at a clinic along the Illinois border with Missouri, where abortion is banned. Physical and legal threats are not new for abortion providers, but McNicholas, chief medical officer of Planned Parenthood of the St. Louis Region and Southwest Missouri, said she is “expecting escalation,” possibly including cross-border legal actions.
“We who are in the field and practicing do see this as a real potential threat,” she said.
Since the conservative majority on the U.S. Supreme Court overturned Roe in June, other states have passed laws aimed at shielding patients and providers from those court actions. Illinois legislators are studying the issue but have not acted, and some legal scholars say that has left people here exposed.
“Illinois is a vitally important state, so the fact that Illinois legislators have done nothing so far is a major problem for abortion providers in this country, and patients,” said David Cohen, a Drexel University law professor and coauthor of a forthcoming Columbia Law Review article on the topic.
Those who oppose abortion in Illinois downplayed the possibility that people out-of-state could successfully use the courts to target patients and providers here.
“There are just a lot of problems constitutionally with prohibiting people from traveling to have an abortion from another state. It is completely within women’s prerogative to do this,” said Amy Gehrke, executive director of Illinois Right to Life.
Legislators in states that allow abortion don’t share that certainty, and they have passed varying laws to block out-of-state legal actions. California has put a law on the books that bars the enforcement of a court judgment coming from a state that allows lawsuits over abortions. This summer, Massachusetts enacted broad protections against lawsuits and prosecutions, including banning the governor from extraditing someone charged with an abortion-related offense in another state that would be legal in Massachusetts.
While interstate legal wars have yet to erupt, they could be on the way to Illinois. Missouri legislators this year considered but did not pass legislation letting private citizens sue out-of-state providers or others who aid a Missourian in getting an abortion. The Republican legislator who pushed the measure, Mary Elizabeth Coleman, has said her legislation was aimed at the Planned Parenthood clinic that operates just across the border in Illinois.
Coleman, who was elected to the Missouri Senate Nov. 8, could not be reached for comment about whether she may resurrect the measure. But she told Politico in March, “If you believe as I do that every person deserves dignity and respect and protection whether they’re born or unborn, then of course you want to protect your citizens, no matter where they are.”
In Texas, meanwhile, Republican state lawmakers have vowed to push legislation that would “allow private citizens to sue anyone who pays for an elective abortion performed on a Texas resident, or who pays for or reimburses the costs associated with these abortions — regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”
Illinois is ringed by states that heavily restrict abortion or all but ban it. Polls here, however, have shown that a majority of residents – like people nationwide – want abortion to be broadly legal. After Roe fell, Gov. J.B. Pritzker said unequivocally that abortion would remain accessible in Illinois, and he joined legislators in promising a special session to bolster that vow.
“Let me make this explicit and clear to women throughout our state, throughout the Midwest and our nation . . . ” Pritzker said at a news conference in June. “Illinois will be a safe haven for the exercise of your reproductive rights.”
The midterm elections appear to have boosted the power of Illinois Democrats to reinforce abortion access, as Pritzker handily won reelection and will continue to work with big majorities in Springfield. And Democrats expanded their state Supreme Court majority to 5-2 after fending off GOP challengers for two seats.
Despite Democratic control of state government, the special session to consider abortion measures didn’t happen. The political math is complicated because legislators have to wait until Jan. 1 to pass bills that go into effect immediately with only a simple majority in favor. Before that, they’d need three-fifths.
Illinois legislators have spent recent months in a working group studying their options for eventual bills. They’ve looked at laws in other states that aim to shield providers and patients from legal jeopardy and considered the way digital data collection could be used to monitor and punish those who seek abortions, Democratic legislators said.
Rep. Kelly Cassidy, D-Chicago, said this study process has been needed because enacting these laws is “not like flipping a switch.” She said the end of Roe showed her that those who favor abortion access have to be ready for new challenges.
“We spent really my entire lifetime being told this is settled law and lots of folks were lulled into a sense of comfort and complacency, maybe even, and didn’t believe it was possible that the right could be taken away,” she said. “Well, I don’t think there is a person with a uterus in this country that would believe for a second that they’re going to be safe.”
Pritzker’s office said in a statement: “We are in dialogue with providers and legal experts nationwide to consider the different ways in which residents of other states might attempt to take legal action involving Illinois-based providers and how we can best address the evolving situation.”
House GOP Leader Jim Durkin of Western Springs declined an interview request through a spokeswoman who noted there is no specific legislation to discuss. A spokesman for Senate Republicans did not make Minority Leader Dan McConchie of Hawthorn Woods available for an interview.
Since the end of Roe, patients have flooded the Planned Parenthood Clinic in Fairview Heights, a suburb of St. Louis on the Illinois side of the border. In October 2021, that clinic and another one in St. Louis, now closed, served 567 abortion patients; in October of this year, the Illinois clinic alone served 813, according to the organization’s figures. Nearly 88% of those patients in October were from outside Illinois.
The influx of patients to Illinois comes with new questions about interstate legal jeopardy that courts have not resolved, law professors said. The law is unsettled enough that courts could rule prosecutors can target out-of-state providers who perform abortions on people from their states if some element of the alleged crime happened in the prosecutor’s jurisdiction, law professors said.
Similarly, it’s unclear how successfully abortion opponents might be able to sue people in other states, legal experts said. Cohen, the Drexel University law professor, said out-of-state residents could sue over abortions performed in Illinois under existing wrongful death laws and potentially prevail.
“I’m not saying I would think that (lawsuit) should win but they could certainly try and a Missouri court could may agree with them,” he said.
The willingness of the Supreme Court to overturn the precedent of Roe means it’s hard to know what courts will allow, legal experts said. June Carbone, a University of Minnesota law professor, noted that even the effectiveness of new laws designed to shield abortion from legal attacks could be in question because those, too, would be subject to court challenges.
Both legal scholars and Illinois legislators said states with abortion access might be able to protect providers and patients from eventual out-of-state legal actions, so as long as those people stay in the state. But that wouldn’t be true if those people set foot in states that allow those measures against abortion.
“If I were an abortion doctor, I would not change planes in Houston,” Carbone said.