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New York Bills Respond to Potential Overturn of Roe

DAVID MARQUES, HOST: Last week, the draft of a decision in the Supreme Court case Dobbs v. Jackson Women’s Health was leaked. If it’s correct, Roe v. Wade will be overturned, and so will the nationwide right to terminate a pregnancy. But three new New York state bills to protect those who come here to evade abortion bans back home have been proposed. If passed, they’ll prevent residents of states where abortion is illegal from prosecution and extradition for getting an abortion in New York. I spoke with Carol Sanger, a professor at Columbia Law School whose work focuses on reproductive rights. And I asked her about what these bills might look like in practice.

CAROL SANGER: Criminal law has almost always been a matter of state law. So that’s why we have different speeding limits in different states and different things are crimes. And so now abortion is one of those things, that is up to the legislature of a state to choose.

MARQUES: Under these laws, people who send abortion pills, say from a state like New York, under these bills, if they become law, they cannot be prosecuted?

SANGER: You’d have to ask where the crime is occurring If we have Texas and they say you can’t receive abortion pills through the mail. That’s one crime and [the] other would be for the sender. I suppose you could receive it and not use it and therefore not do an abortion unless they pass special legislation saying there can be no transportation of any means of abortion through the mail. And I’m sure states will do that. And that will have to go to a court to decide is that constitutional. Right now, the FDA has made the transportation of the mailing of abortion pills legal until the end of the pandemic. So for right now, the matter is settled, but it will likely become unsettled.

MARQUES: So, say a state like Mississippi or Texas wanted to challenge the law in New York. Is that even possible? And if it is, how might they try to do it?

SANGER: My initial thought is no. A person from Texas can’t come into New York and say, "We don’t like your speed limits, we’re going to argue that they’re what, unconstitutional?" Well, that won’t work. Because first of all, it’s up to the state of New York to regulate criminal conduct. Although Texas did do that, in saying its rather bizarre piece of legislation saying that anyone anywhere in the country could bring an action against anyone in Texas who performs or assists in performing an abortion after six weeks. They’re opening up their state law, specifically to out of staters, but that’s not the general rule.

MARQUES: Even though abortion is codified could this decision in Dobbs v. Jackson Women’s Health have any sort of impact on New Yorkers who seek to get an abortion?

SANGER: No. Not if they seek to get it in New York. If for example, Alito’s opinion had said, “We’ve been reading over Roe v. Wade, and we see that Roe says, the fetus is not a person for the purposes of the decision. And we think that’s wrong. We think the fetus is a person." If that was what the opinion had said, we know as a matter of every state law, killing a person is a form of murder. So that in that case, that would have gone over the whole United States. But that’s not what they did. They were content to leave it to each individual state. So no, New Yorkers have well protected the reproductive rights of girls and women in the state.

MARQUES: That was Carol Sanger, professor at Columbia Law School and author of the book About Abortion: Terminating Pregnancy in Twenty-First Century America.

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