Biden's Friday executive order can't guarantee courts will side with abortion providers against cross-state prosecution.
so that aggressive DAs can use prosecutorial discretion to read state laws in a way that tries to apply to people in other states, even without the new draft legislation specifically targeting travel.he’s skeptical that courts would uphold a private civil-enforcement mechanism to prevent interstate travel for abortion since the question of the constitutional right itself is separate from its enforcement mechanism.
A law utilizing such a civil enforcement mechanism is more difficult to challenge in court overall because abortion rights groups don’t have a clear target to sue. However, Professor Rhodes explains that if the individual in question has a constitutional right, they will win the case, whomever they do decide to sue, and whether or not the case utilizes private or public enforcement.
proposals now being floated to restrict abortion across state lines. Kavanaugh’s statement also fails to address the novel civil enforcement strategy out of Texas that is gaining traction in Republican legislatures, Donley points out.was settled law, and then sided with the conservative majority into overturn it.
“A lot of the doctrines that both sides are going to rely on are unknown. They just don’t have a lot of precedent in this context at all, so we really have a lot of uncertainty. Truly, it’s a profound amount of uncertainty,” Donley tells. “We’re going to have to see what the courts do, and the courts are going to almost certainly disagree. And then, how [the courts] handle those disagreements is just another level of uncertainty.
Biden’s Justice Department has already warned states restricting abortion that it will fight legal attempts to prohibit interstate travel or prosecute providers in abortion-rights states, saying that such attempts violate the constitutional right to interstate travel and commerce.
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