Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

Supreme Court briefSep 20, 2021

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No. 19-1392=

IN THE

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THOMAS E. DOBBS, ET AL.,

Petitioners,

JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF CALIFORNIA WOMEN’S LAW

CENTER AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

THEANE D. EVANGELIS

Counsel of Record

LAUREN BLAS

JILLIAN LONDON

EMILY SAUER

ADRIENNE LIU

NICOLE MATTHEWS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...................... 1

SUMMARY OF ARGUMENT .............................. 2

ARGUMENT ......................................................... 5

I. PRE-VIABILITY PROHIBITIONS

ON ABORTION ARE

UNCONSTITUTIONAL WHERE

THEY RESULT IN ONEROUS

OUT-OF-STATE TRAVEL TO

OBTAIN CARE. ........................................ 5

A. The Court has consistently

affirmed that having to travel

long distances to receive

abortions, and the costs

associated with such travel, are

substantial obstacles to abortion

access. .................................................. 5

B. The Court has also long held

that the number of women

burdened by a restriction is

central to assessing its

constitutionality. ................................. 8

II. PRE-VIABILITY PROHIBITIONS

ON ABORTION WILL RESULT IN

SHARP INCREASES IN TRAVEL

DISTANCES FOR A LARGE

FRACTION OF WOMEN. ........................ 9

A. Increased abortion restrictions

do not lower demand but

instead force women to travel

out-of-state to obtain care. .................. 9

B. Abortion limits adopted during

the COVID-19 pandemic

foreshadow the increased

interstate travel that will result

from pre-viability bans. .................... 12

C. Sharp increases in travel

distances will result from

widespread adoption of previability bans. .................................... 13

D. Increased demand in states

with continued abortion access

will require some women to

travel even farther to obtain

timely abortions. ............................... 15

III. TRAVELING OUT OF STATE FOR

ABORTIONS IMPOSES SEVERE

FINANCIAL, PSYCHOLOGICAL,

AND MEDICAL BURDENS,

WHICH DISPROPORTIONATELY

AFFECT WOMEN OF COLOR

AND THOSE LIVING IN

POVERTY. ............................................... 18

A. Many women seeking abortions

outside their home state

experience serious financial

hardship. ............................................ 18

B. Traveling out of state to obtain

abortions has significant

psychological effects that should

not be overlooked............................... 23

C. Forcing women to travel out of

state to obtain abortions can

undermine their medical

decision-making abilities and

subject them to needless

medical risks for otherwise safe

procedures. ........................................ 27

iii

D. Women living in poverty and

women of color

disproportionately shoulder

burdens arising from out-ofstate abortions. .................................. 33

CONCLUSION .................................................... 36

TABLE OF AUTHORITIES

Page(s)

Cases

Gonzales v. Carhart,

550 U.S. 124 (2007) ................................................ 8

June Medical Services LLC v. Russo,

140 S. Ct. 2103 (2020) ................................ 6, 7, 8, 9

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

505 U.S. 833 (1992) ........................................ 5, 8, 9

Roe v. Wade,

410 U.S. 113 (1973) ................................................ 2

United States v. Texas,

No. 1:21-cv-00796-RP

(W.D. Tex. Sept. 15, 2021) ................................... 14

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ............................ 5, 6, 7, 8, 9

Whole Women’s Health v. Jackson,

No. 21A24, 594 U.S. ___,

2021 WL 3910722 (2021) ..................................... 14

Other Authorities

Abortion and Mental Health, Am.

Psych. Assoc.,

https://www.apa.org/pi/women/progr

ams/abortion (last visited

Sept. 6, 2021) ........................................................ 27

Abortion Policy in the Absence of Roe,

Guttmacher Institute,

https://www.guttmacher.org/statepolicy/explore/abortion-policyabsence-roe (last visited

Sept. 19, 2021) .................................................. 3, 14

Abortions in Arizona: 2019 Abortion

Report, Arizona Department of

Health Services (Sept. 21, 2020),

https://www.azdhs.gov/documents/pr

eparedness/public-healthstatistics/abortions/2019-arizonaabortion-report.pdf ............................................... 16

Access to Abortion During the COVID19 Pandemic and Recession,

National Women’s Law Center 2

(Mar. 2021), https://nwlc.org/wpcontent/uploads/2021/04/3.21-Brief1-1.pdf ................................................................... 21

Alexa Garcia-Ditta, With More Texans

Traveling for Abortions, Meet the

Woman Who Gets Them There, Texas

Observer (June 9, 2016),

https://www.texasobserver.org/fundtexas-choice-new-mexico-abortion/ ...................... 11

Alison Kodjak, Landmark Report

Concludes Abortion in U.S. Is Safe,

NPR (Mar. 16, 2018),

https://www.npr.org/sections/healthshots/2018/03/16/593447727/ ............................... 28

Amy G. Bryant & Jonas J. Swartz, Why

Crisis Pregnancy Centers Are Legal

but Unethical, 20 AMA J. of Ethics

269 (Mar. 2018),

https://journalofethics.amaassn.org/sites/journalofethics.amaassn.org/files/2018-04/pfor1-1803.pdf ................. 26

Amy Littlefield, As the Pandemic

Raged, Abortion Access Nearly

Flickered Out, The Nation

(Feb. 23, 2021),

https://www.thenation.com/article/so

ciety/abortion-access-covidpandemic/ ............................................................. 29

Angie Leventis Lourgos, Abortions in

Illinois Increased Almost 10% in One

Year, with More than 7,500 Women

Traveling Here From Out of State,

Chicago Tribune (May 28, 2021) ......................... 11

Ariane de Vogue, Poorest Americans

Could See Biggest Impact of

Reversing Roe v. Wade, CNN

(July 30, 2021),

https://www.cnn.com/2021/07/30/poli

tics/roe-v-wade-abortion-ginsburgbarrett/index.html?utm_source=feed

burner&utm_medium=feed&utm_ca

mpaign=Feed%3A+rss%2Fcnn_topst

ories+%28RSS%3A+CNN++Top+Stories%29 ................................................. 34

vii

Arielle Avila, The State’s Ban Isn’t

Stopping Texans from Getting

Abortions, TexasMonthly

(Apr. 13, 2020),

https://www.texasmonthly.com/news

-politics/texas-abortion-bancoronavirus/ .................................................... 10, 19

Bd. Governors Fed. Reserve Sys., Report

on the Economic Well-Being of U.S.

Households in 2018 (May 2019),

https://www.federalreserve.gov/publi

cations/files/2018-report-economicwell-being-us-households-201905.pdf ................. 19

Caitlin Myers et al., Predicted Changes

in Abortion Access and Incidence in a

Post-Roe World, 100 Contraception

367 (2019) ....................................................... 15, 26

Chloe Atkins, What U.S. Abortion

Access Looks Like, in Graphics, NBC

News (July 25, 2021),

https://www.nbcnews.com/news/usnews/what-u-s-abortion-access-looksgraphics-n1274859 ............................................... 14

Christina A. Cassidy, Women Seek

Abortions Out of State Amid

Restrictions, AP (Sept. 8, 2019),

https://apnews.com/article/in-statewire-abortion-or-state-wire-il-statewire-mo-state-wire4ced42150e3348328296e28559c2143

b ...................................................................... 10, 24

viii

Colleen Heild, New Mexico Becomes

Abortion Magnet, Albuquerque

Journal (Mar. 20, 2016) ....................................... 11

Diana Greene Foster & Katrina

Kimport, Who Seeks Abortions at or

After 20 Weeks?, 45 Persp. on Sexual

& Reprod. Health 210 (2013),

https://onlinelibrary.wiley.com/doi/ep

df/10.1363/4521013 ........................................ 21, 22

Elizabeth Nash, State Abortion Policy

Landscape: From Hostile to

Supportive, Guttmacher Institute

(Dec. 30, 2020),

https://www.guttmacher.org/article/2

019/08/state-abortion-policylandscape-hostile-supportive ................... 33, 34, 35

Ellen Wulfhorst, Up Against Strict

Laws, Texas Women Learn Do-ItYourself Abortions, Reuters

(May 24, 2016),

https://www.reuters.com/article/usabortion-usa-texas-doityourself/upagainst-strict-laws-texas-womenlearn-do-it-yourself-abortionsidUSKCN0YF1BC................................................ 32

Emma Batha, U.S. States Making 2021

Moves on Abortion Rights and

Access, Thomson Reuters

Foundation (Sept. 15, 2021),

https://news.trust.org/item/20201231

112641-qfynt/ ....................................................... 14

Erin Durkin, ‘Women Will Die’: How

New Abortion Bans Will Harm the

Most Vulnerable, The Guardian

(May 19, 2019),

https://www.theguardian.com/usnews/2019/may/19/abortion-banalabama-women-of-color-poor ............................. 33

Genevra Pittman, Abortion Safer than

Giving Birth: Study, Reuters

(Jan. 23, 2012),

https://www.reuters.com/article/usabortion/abortion-safer-than-givingbirth-study-idUSTRE80M2BS20120123 ............ 28

Induced Terminations of Pregnancy,

Texas Health and Human Services

Commission (last visited

Aug. 24, 2021),

https://www.hhs.texas.gov/abouthhs/records-statistics/datastatistics/itop-statistics ........................................ 16

Iris Samuels, New Texas Abortion Law

Pushes Women to Out-of-State

Clinics, U.S. News & World Report

(Sept. 2, 2021),

https://www.usnews.com/news/healt

h-news/articles/2021-09-02/newtexas-abortion-law-pushes-womento-out-of-state-clinics ........................................... 10

Jamila Taylor, Women of Color Will

Lose the Most if Roe v. Wade Is

Overturned, Ctr. for Am. Progress

(Aug. 23, 2018),

https://www.americanprogress.org/is

sues/women/news/2018/08/23/455025

/women-color-will-lose-roe-v-wadeoverturned/ ..................................................... 35, 36

Jerman et al., Barriers to Abortion Care

and Their Consequences for Patients

Traveling for Services: Qualitative

Findings from Two States,

Guttmacher Institute (June 2017),

https://www.guttmacher.org/journals

/psrh/2017/04/barriers-abortion-careand-their-consequences-patientstraveling-services ................................................. 33

Jessica Arons & Medina Agenor,

Separate and Unequal: The Hyde

Amendment and Women of Color,

Ctr. For Am. Progress (Dec. 2010),

https://cdn.americanprogress.org/wpcontent/uploads/issues/2010/12/pdf/h

yde_amendment.pdf ............................................. 35

Jill Bar-Walker et al., Experiences of

Women Who Travel for Abortion,

PLOS ONE 15 (Apr. 19, 2019),

https://doi.org/10.1371/journal.po

ne.0209991 ................................... 18, 20, 23, 24, 32

Joan B. Kelly & Michael P. Johnson,

Differentiation Among Types of

Intimate Partner Violence: Research

Update and Implications for

Interventions, 46 Fam. Ct. Rev. 477

(2008) .................................................................... 22

Joanne D. Rosen, The Public Health

Risks of Crisis Pregnancy Centers,

Guttmacher Institute

(Sept. 10, 2012),

https://www.guttmacher.org/journals

/psrh/2012/09/public-health-riskscrisis-pregnancy-centers ...................................... 25

Kari White et al., Texas Senate Bill 8:

Medical and Legal Implications,

Texas Policy Evaluation Project

(July 2021),

http://sites.utexas.edu/txpep/files/20

21/07/TxPEP-research-brief-senatebill-8.pdf ............................................................... 35

Katherine Kortsmit et al., Abortion

Surveillance — United States, 2018,

Centers for Disease Control and

Prevention (Nov. 27, 2020),

https://www.cdc.gov/mmwr/volumes/

69/ss/ss6907a1.htm .............................................. 17

Kristen M. Shellenberg et al., Social

Stigma and Disclosure About

Induced Abortion: Results from an

Exploratory Study, 6 Global Pub.

Health S111 (2011) .............................................. 23

xii

Kyle Almond & Benazir Wehelie, She

Tried to Get an Abortion During the

Pandemic. Her State Wouldn’t Allow

It, CNN,

https://www.cnn.com/interactive/202

0/06/health/abortion-accesscoronavirus-cnnphotos/ (last visited

July 14, 2021) ....................................................... 13

Laurie Sobel et al., State Action to Limit

Abortion Access During the COVID19 Pandemic, Kaiser Family

Foundation (Aug. 10, 2020),

https://www.kff.org/coronaviruscovid-19/issue-brief/state-action-tolimit-abortion-access-during-thecovid-19-pandemic/ .............................................. 12

Liza Fuentes & Jenna Jerman, Distance

Traveled to Obtain Clinical Abortion

Care in the United States and

Reasons for Clinic Choice, 28 J.

Women’s Health 1623 (2019),

https://www.liebertpub.com/doi/pdfpl

us/10.1089/jwh.2018.7496.................................... 21

LySaundra Campbell, The Hidden Link

Between Domestic Violence and

Abortion, Rewire News Group

(Oct. 24, 2019),

https://rewirenewsgroup.com/article/

2019/10/24/the-hidden-link-betweendomestic-violence-and-abortion/ .......................... 22

xiii

Madeline M. Gomez, More than

Mileage: The Preconditions of Travel

and the Real Burdens of H.B. 2,

33.1 Col. J. of Gender & L., 49 ............................ 31

Marcela Howell & Ann M. Starrs, For

Women of Color, Access to Vital

Health Services Is Threatened,

Guttmacher Institute

(July 27, 2017),

https://www.guttmacher.org/article/2

017/07/women-color-access-vitalhealth-services-threatened .................................. 36

Medical Versus Surgical Abortion,

UCLA Health,

https://www.uclahealth.org/obgyn/m

edical-versus-surgical-abortion (last

visited Sept. 19, 2021) .......................................... 29

Medical vs. Surgical Abortion, Whole

Woman’s Health,

https://www.wholewomanshealth.co

m/medical-vs-surgical-abortion/ (last

visited Sept. 19, 2021) .......................................... 29

Michael Nedelman, Abortion

Restrictions Don’t Lower Rates,

Report Says, CNN (Mar. 21, 2018),

https://www.cnn.com/2018/03/21/heal

th/abortion-restrictionlaws/index.html ...................................................... 9

xiv

Molly Hennessy-Fiske, For Many

Texans, It’s a Long Drive out of State

for Abortion, L.A. Times (Sept. 17,

2021), ................................................................... 17

Nat’l Academies of Sciences,

Engineering, and Medicine, The

Safety and Quality of Abortion Care

in the United States (2018),

https://doi.org/10.17226/24950....................... 28, 29

Pam Belluck, Planned Parenthood

Refuses Federal Funds Over

Abortion Restrictions, N.Y. Times

(Aug. 19, 2019) ..................................................... 16

Percent of Total Population in Poverty,

2019, U.S. Dep’t of Agric.

(Jan. 5, 2021),

https://data.ers.usda.gov/reports.asp

x?ID=17826#P5202283d01e847a194

b2d55ae25e3a99_2_229iT3 .................................. 34

Race and Ethnicity in the United States:

2010 Census and 2020 Census, U.S.

Census Bureau (Aug. 12, 2021),

https://www.census.gov/library/visua

lizations/interactive/race-andethnicity-in-the-united-state-2010and-2020-census.html .......................................... 35

Rebecca Wind, Abortion Is a Common

Experience for U.S. Women, Despite

Dramatic Declines in Rates,

Guttmacher Institute

(Oct. 19, 2017),

https://www.guttmacher.org/newsrelease/2017/abortion-commonexperience-us-women-despitedramatic-declines-rates ....................................... 33

Sandhya Raman, HHS Moves to

Reinstate Aid to Family Planning

Clinics that Perform Abortions, Roll

Call (Apr. 14, 2021),

https://www.rollcall.com/2021/04/14/

hhs-moves-to-reinstate-aid-tofamily-planning-clinics-thatperform-abortions/ ............................................... 16

Sarah C.M. Roberts, COVID-19 and

Independent Abortion Providers:

Findings from a Rapid-Response

Survey, 52 Persp. on Sexual and

Reprod. Health 217 (2020) ................................... 30

Sarah C.M. Roberts et al., Out-of-Pocket

Costs and Insurance Coverage for

Abortion in the United States, 24

Women’s Health Issues e211 (2014).............. 18, 19

xvi

Sarah McCammon, After Texas Abortion

Ban, Clinics in Other Southwest

States See Influx of Patients, NPR

(Apr. 17, 2020),

https://www.npr.org/sections/coronav

irus-live-updates/2020/04/17/

837153529/after-texas-abortion-banclinics-in-neighboring-states-seeinflux-of-patients.................................................. 12

Sarah Varney, Long Drives, Air Travel,

Exhausting Waits: What Abortion

Requires in the South, NPR

(Aug. 3, 2021), https://khn.org/news/

article/abortion-in-south-requirestravel-long-waits/ ............................... 19, 20, 21, 25

State Policy Trends at Midyear 2021:

Already the Worst Legislative Year

Ever for U.S. Abortion Rights,

Guttmacher Institute (July 1, 2021),

https://www.guttmacher.org/article/2

021/07/state-policy-trends-midyear2021-already-worst-legislative-yearever-us-abortion ................................................... 13

Susan A. Cohen, Abortion and Women

of Color: The Bigger Picture,

Guttmacher Institute (Aug. 6, 2008),

https://www.guttmacher.org/gpr/200

8/08/abortion-and-women-colorbigger-picture ....................................................... 35

xvii

Susan Dunlap, With a Health Care

Crisis Under Way, New Mexico

Could Be Critical for Abortion

Access, The NM Political Report

(Feb. 6, 2020),

https://nmpoliticalreport.com/2019/1

1/13/accessto-abortion-limited-in-nm/ ................. 21

Torey Van Oot, I’m an Abortion Travel

Agent, Refinery29 (Jan. 30, 2017),

https://www.refinery29.com/enus/2017/01/138436/texas-abortiontravel-agent-stories ........................................ 24, 25

Unmasking Fake Clinics: The Truth

About Crisis Pregnancy Centers in

California, NARAL Pro-Choice

California Found.,

https://www.sfcityattorney.org/wpcontent/uploads/2015/08/UnmaskingFake-Clinics-The-Truth-AboutCrisis-Pregnancy-Centers-inCalifornia-.pdf (last visited

Sept. 19, 2021) ...................................................... 26

Ushma Upadhyay et al., Distance

Traveled for an Abortion and Source

of Care After Abortion, 130

Obstetrics & Gynecology 616

(Sept. 2017),

https://journals.lww.com/greenjourna

l/Fulltext/2017/09000/Distance_Trav

eled_for_an_Abortion_and_Source_of

.17.aspx ................................................................. 30

INTEREST OF AMICUS CURIAE1

Amicus curiae California Women’s Law Center

(“CWLC”) is a nonprofit law and policy center based

in California whose mission is to create a more just

and equitable society by breaking down barriers and

advancing the potential of women and girls through

transformative litigation, policy advocacy, and

education. A vital part of CWLC’s mission is fighting

for reproductive health rights and justice by ensuring

women have access to the health care opportunities

they need to lead healthy and productive lives. CWLC

believes that women and adolescent girls deserve both

the right to make choices about their bodies and

access to the full range of reproductive health options,

regardless of geography or income level.

CWLC has an interest in opposing Mississippi’s

ban on pre-viability elective abortions to ensure that

women and adolescent girls in California and around

the country continue to have meaningful access to

abortions. If the Court upholds Mississippi’s ban on

pre-viability elective abortions or allows states to

enact more severe restrictions on pre-viability

abortions that would be considered unconstitutional

under the Court’s current undue-burden framework,

women who want abortions but are not able to access

them in their home states will travel to states with

fewer abortion restrictions, such as California, to

All parties to this case have filed blanket consents with

the Court to allow submission of amicus briefs. Pursuant to this

Court’s Rule 37.6, this brief was not authored in whole or in part

by counsel for any party, and no person or entity other than

amicus, its members, or its counsel made a monetary

contribution to fund the preparation or submission of this brief.

obtain abortions. Not only will such long-distance

travel cause these people significant financial,

psychological, and medical hardships, but demand for

abortions at California clinics could exceed capacity if

clinics are flooded with additional out-of-state

patients. If that occurs, California clinics may not be

able to offer timely and safe abortions to all people

who seek their services, preventing both in-state and

out-of-state patients from obtaining necessary care.

SUMMARY OF ARGUMENT

Petitioners ask the Court to declare that a state

may prohibit pre-viability elective abortions subject

only to rational basis review. Doing so would require

the Court to overrule nearly a half-century of abortion

precedents, beginning with Roe v. Wade, 410 U.S. 113

(1973), which have consistently re-affirmed the

constitutionally protected right to a pre-viability

elective abortion, invalidated outright bans on

abortions, and approved restrictions on that right only

if those restrictions do not pose an “undue burden.”

The Court should reject Petitioners’ request and

affirm the Fifth Circuit’s holding that Mississippi’s

ban on pre-viability elective abortions after 15 weeks

is unconstitutional.

If the Court permits states to intrude on a

woman’s right to choose an abortion pre-viability

without this undue-burden analysis,2 many

individuals across the country—not only in

Mississippi, but also in states like Texas, Arkansas,

and Oklahoma that have already or likely will enact

This brief uses the term “women,” but amicus recognizes

that people of all gender identities may become pregnant and

require abortion care.

similar (or harsher) prohibitions on pre-viability

abortions—will effectively be left without a single

option to receive abortions in their state. These

women will likely be forced to travel long distances, at

great personal, financial, medical, and emotional cost,

to obtain abortions—and many may not be able to

make the journey, or may not be able to do so in time.

Even now, while the Court’s longstanding abortion

precedents remain intact, almost half the states have

passed laws that seek to restrict the right to legal

abortion.

Nine of these states have enacted

restrictions which have been determined to be

unconstitutional under Roe but may be reinstated

depending on the result of this case.3 Upholding

Mississippi’s outright ban on abortion after 15 weeks’

gestation will not only embolden states to pass

similarly restrictive laws, but will also have the

appearance of endorsing even more severe

prohibitions—including Texas’s now-effective ban on

abortions after six weeks’ gestation—which often

functionally strip women of their right to an abortion.

Abortion access will be drastically reduced—or

even extinguished—across entire regions of the

country if the Court discards viability as the threshold

for evaluating the constitutionality of abortion

restrictions.

The Court should therefore, at

minimum, continue to reaffirm that restrictions that

have the effect of increasing the need for long-distance

travel for a large fraction of the women affected by

those restrictions are unconstitutional. If, instead,

the Court decides to do away with both its viability

Abortion Policy in the Absence of Roe, Guttmacher

Institute,

https://www.guttmacher.org/statepolicy/explore/abortion-policy-absence-roe (last visited Sept. 19,

2021).

threshold and accompanying undue-burden analysis,

then it should, at the very least, continue to analyze if

and how the restriction would affect the need for

interstate travel. Without this backstop, the Court

would move from permitting only pre-viability

restrictions that satisfy its undue-burden test to

allowing pre-viability restrictions and complete

prohibitions—regardless of their significant travelrelated burdens.

Pre-viability prohibitions on abortion like

Mississippi’s will not decrease demand for abortions,

but will instead necessitate burdensome out-of-state

travel for women who can no longer seek abortions in

their home states, and that increased demand could,

in turn, reduce access to abortions in states that do

allow the procedure. Individuals who have to travel

will be forced to incur significant financial costs

associated with interstate travel (such as childcare,

lost wages, lodging, and transportation, plus the cost

of the procedure itself); bear heavy psychological

burdens from being forced to seek out-of-state

abortions and potentially disclose their situation to

others; and face increased and unnecessary medical

risk from having a delayed procedure. Moreover,

these substantial burdens disproportionately affect

women of color and those living in poverty. If a

woman’s ability to exercise her right to an abortion is

tethered to her geography, travel and its effects must

be central to the Court’s framework. The Court

should thus hold that abortion restrictions and

prohibitions that result in significant increases in outof-state travel—and accompanying heavy burdens—

are unconstitutional.

ARGUMENT

PRE-VIABILITY

PROHIBITIONS

ABORTION ARE UNCONSTITUTIONAL

WHERE THEY RESULT IN ONEROUS OUTOF-STATE TRAVEL TO OBTAIN CARE.

A. The Court has consistently affirmed that

having to travel long distances to receive

abortions, and the costs associated with

such travel, are substantial obstacles to

abortion access.

In Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 877 (1992), the

Court affirmed a woman’s right to an abortion previability, but it permitted states to impose restrictions

on pre-viability abortions so long as those restrictions

did not place an undue burden on one’s ability to

obtain an abortion. Since Casey, the Court has

continued to evaluate abortion restrictions under this

framework and, in so doing, has recognized that

having to travel a significant distance to obtain care,

along with the associated costs, constitute

unconstitutional burdens.

For example, in Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2300 (2016), the Court

confronted a Texas law that required physicians

performing abortions to have admitting privileges at

hospitals near the location of the abortion and

required abortion facilities to meet standards

applicable to ambulatory surgery centers. In ruling

that these requirements posed an undue burden, the

Court relied on record evidence demonstrating that

after the provision went into effect, “the ‘number of

women of reproductive age living in a county … more

than 150 miles from a provider increased from

approximately 86,000 to 400,000 … and the number

of women living in a county more than 200 miles from

a provider from approximately 10,000 to 290,000.’” Id.

at 2313 (ellipses in original). In holding the same as

to the surgical-center requirement, the Court stressed

that the resultant clinic closures would “force women

to travel long distances to get abortions in crammedto-capacity superfacilities.” Id. at 2318.

The Court also emphasized that the sharp

decrease in the number of facilities as a result of the

law (from about 40 to approximately 8), would lead to

“fewer doctors, longer waiting times, and increased

crowding.”

Hellerstedt, 136 S. Ct. at 2313.

Specifically, it observed that where demand exceeds

capacity, patients “are less likely to get the kind of

individualized attention, serious conversation, and

emotional support that doctors at less taxed facilities

may have offered,” as “[h]ealthcare facilities and

medical professionals are not fungible commodities.”

Id. at 2318 (citation omitted).

In June Medical Services LLC v. Russo, 140 S. Ct.

2103, 2130 (2020), the Court struck down a Louisiana

law imposing a nearly identical admitting-privileges

requirement because it impermissibly “place[d]

substantial obstacles in the path of women seeking an

abortion in Louisiana,” including in the form of

increased travel distances of anywhere from one to

five hours of driving. Chief Justice Roberts explained

that increased travel distance would “exacerbate” the

difficulty faced by Louisiana women with “affording or

arranging for transportation and childcare on the

days of their clinic visits.” Id. at 2140 (Roberts, C.J.,

concurring in judgment) (citation omitted). Because

Louisiana also required an ultrasound and mandatory

counseling at least 24 hours before an abortion,

already lengthy travel time would be doubled or

require patients to arrange for overnight lodging. See

id. Worse still, “the burdens of this increased travel

would fall disproportionately on poor women, who are

least able to absorb them.” Id. at 2130 (plurality op.).

As in Hellerstedt, the Court reiterated that a

substantial reduction in facilities “would inevitably

mean ‘longer waiting times, and increased crowding.’”

Id. (quoting Hellerstedt, 136 S. Ct. at 2313).

Even when faced with increases in intrastate

travel caused by restrictions on abortion, the Court

has (correctly) held that having to travel long

distances imposes a “substantial obstacle” on abortion

seekers.

Broad prohibitions like Mississippi’s

outright ban after 15 weeks leave individuals without

any meaningful abortion access in their state. The

resultant interstate travel thus presents an even

greater and more obvious undue burden.

The

magnitude of the associated costs of travel stemming

from statewide prohibitions only reinforces this

conclusion.

If the Court moves away from its undue-burden

framework to some less demanding standard, it

should not abandon its abortion precedent related to

travel burdens entirely. Rather, the Court should

continue to recognize—and disallow—increased

burdens women face when they are forced to travel

long distances to obtain abortions.

B. The Court has also long held that the

number of women burdened by a

restriction is central to assessing its

constitutionality.

Since the undue-burden framework was first

developed in Casey, the Court has reaffirmed that the

number of women affected by an abortion law is

essential to evaluating the law’s constitutionality.

There, in invalidating Pennsylvania’s spousalnotification requirement, the Court emphasized that

the requirement “will operate as a substantial

obstacle to a woman’s choice to undergo an abortion”

“in a large fraction of the cases in which [it] is

relevant.” Casey, 505 U.S. at 895.

The Court adhered to this same “large fraction”

approach in Hellerstedt and June Medical,

determining that the challenged provisions placed

“substantial obstacle[s] in the path of a large fraction

of those women seeking an abortion for whom it is a

relevant restriction,” and were therefore unlawful.

June Medical, 140 S. Ct. at 2133; see also Hellerstedt,

136 S. Ct. at 2320. Even where the Court has

determined that a restriction did not violate the

undue-burden test, it nevertheless affirmed the

significance of this factor. See Gonzales v. Carhart,

550 U.S. 124, 167–68 (2007).

Notably, the restrictions in Casey, Hellerstedt, and

June Medical did not necessarily apply to all women

in the state seeking abortions. The states accordingly

argued that the restrictions did not impose an undue

burden because they did not satisfy Casey’s “large

fraction” test. Hellerstedt, 136 S. Ct. at 2320; see

Casey, 505 U.S. at 894–95; June Medical, 140 S. Ct. at

2132.

The Court rejected these arguments,

reiterating that “[t]he proper focus of constitutional

inquiry is the group for whom the law is a restriction,

not the group for whom the law is irrelevant.” Casey,

505 U.S. at 894 (emphasis added); June Medical, 140

S. Ct. at 2132–33; Hellerstedt, 136 S. Ct. at 2320.

Where, as here, a statewide pre-viability ban will

affect all individuals in the state seeking an abortion,

the analysis is even simpler. If out-of-state travel

caused by a pre-viability prohibition or restriction is

found to be a substantial obstacle to abortion access,

then it is unconstitutional under the Court’s undueburden framework. Even if the Court were to reduce

its level of scrutiny to the likes of rational-basis

review, this longstanding and critical factor should

remain central to the Court’s analysis.

II. PRE-VIABILITY

PROHIBITIONS

ABORTION WILL RESULT IN SHARP

INCREASES IN TRAVEL DISTANCES FOR

A LARGE FRACTION OF WOMEN.

A. Increased abortion restrictions do not

lower demand but instead force women

to travel out-of-state to obtain care.

While anti-abortion lawmakers may think that

greater restrictions will curtail demand for abortions,

this is not true. Studies have shown that demand for

abortions does not decrease just because states

implement harsher restrictions. Instead, the demand

for abortion will likely remain steady while women

simply experience delayed and/or less safe abortions.4

See Michael Nedelman, Abortion Restrictions Don’t

Lower Rates, Report Says, CNN (Mar. 21, 2018),

https://www.cnn.com/2018/03/21/health/abortion-restrictionlaws/index.html (“Laws that seek to limit abortions around the

As Kathy Kleinfeld, the director of a Houston-based

abortion care provider, noted following Governor Greg

Abbott’s executive order restricting abortions in

March 2020, “[n]ot a single woman [calling her clinic]

has said[,] then I’ll just go ahead and continue this

pregnancy.”5 Rather, such restrictions lead those

residents to seek abortions in states with fewer or no

restrictions. Between 2012 and 2017, at least 276,000

people received abortions outside their home states

because their home states had more severe abortion

restrictions than the states they traveled to.6 In 2020

alone, for example, Planned Parenthood clinics across

California saw approximately 7,000 out-of-state

patients.7

In that same period in New Mexico, roughly a

quarter of the state’s abortions were performed on

out-of-state patients.8 In contrast to neighboring

world may not lower the rate of abortions but could make them

less safe.”).

See Arielle Avila, The State’s Ban Isn’t Stopping Texans

from Getting Abortions, TexasMonthly (Apr. 13, 2020),

https://www.texasmonthly.com/news-politics/texas-abortionban-coronavirus/.

Christina A. Cassidy, Women Seek Abortions Out of State

Amid

Restrictions,

(Sept.

2019),

https://apnews.com/article/in-state-wire-abortion-or-state-wireil-state-wire-mo-state-wire4ced42150e3348328296e28559c2143b.

Iris Samuels, New Texas Abortion Law Pushes Women to

Out-of-State Clinics, U.S. News & World Report (Sept. 2, 2021),

https://www.usnews.com/news/health-news/articles/2021-0902/new-texas-abortion-law-pushes-women-to-out-of-stateclinics.

See id.

Texas, Arizona, and Oklahoma, New Mexico does not

have any significant abortion restrictions, and it is

one of only a handful of states to allow late-term

abortions.9 At some New Mexico clinics, as many as

half of the patients might be traveling from Texas.10

As another example, Illinois saw an increase of

2,000 out-of-state abortion patients from 2018 to

2019.11 Commentators have suggested this was likely

the result of legislation enacted in neighboring

Missouri in 2019, which banned abortions after eight

weeks’ gestation and imposed a slew of other

restrictions (although the ban was blocked by court

order).12 By contrast, that same year, Illinois adopted

legislation securing abortion as a “fundamental right”

and preserving the legal status of abortion in the

state, notwithstanding the fate of Roe.13 These

examples illustrate that states’ adoption of severe

abortion restrictions does not dissolve demand;

Colleen Heild, New Mexico Becomes Abortion Magnet,

Albuquerque

Journal

(Mar.

20,

2016),

https://www.abqjournal.com/743253/more-women-coming-tonm-for-abortions.html.

Alexa Garcia-Ditta, With More Texans Traveling for

Abortions, Meet the Woman Who Gets Them There, Texas

Observer (June 9, 2016), https://www.texasobserver.org/fundtexas-choice-new-mexico-abortion/.

Angie Leventis Lourgos, Abortions in Illinois Increased

Almost 10% in One Year, with More than 7,500 Women Traveling

Here From Out of State, Chicago Tribune (May 28, 2021),

https://www.chicagotribune.com/news/breaking/ct-illinoisabortion-numbers-increase-20210528s5ddpbvcw5dk3ckwx5p5xv2d5m-story.html.

See id.

demand merely migrates to locations with fewer

abortion restrictions.

B. Abortion limits adopted during the

COVID-19 pandemic foreshadow the

increased interstate travel that will

result from pre-viability bans.

At the height of the COVID-19 pandemic, 11

states limited abortion access by defining abortion as

a non-essential or elective procedure that could be

suspended for the duration of the public health

emergency.14 Although some orders were successfully

enjoined, and many were in effect only briefly, their

impact was still quickly felt.

The effect of these bans illustrates how more

permanent pre-viability prohibitions on abortion will

precipitate greater increases in out-of-state travel.

According to Planned Parenthood, clinics in Colorado,

New Mexico, and Nevada reported a more than

sevenfold increase in patients traveling from Texas

between March 23 and April 14, 2020, when Texas’s

ban was in place.15 Planned Parenthood Los Angeles

also reported receiving a “huge influx of people from

Laurie Sobel et al., State Action to Limit Abortion Access

During the COVID-19 Pandemic, Kaiser Family Foundation

(Aug. 10 2020), https://www.kff.org/coronavirus-covid-19/issuebrief/state-action-to-limit-abortion-access-during-the-covid-19pandemic/.

Sarah McCammon, After Texas Abortion Ban, Clinics in

Other Southwest States See Influx of Patients, NPR (Apr. 17,

2020),

https://www.npr.org/sections/coronavirus-liveupdates/2020/04/17/837153529/after-texas-abortion-ban-clinicsin-neighboring-states-see-influx-of-patients.

out of state” in spring 2020.16 Even in the Midwest

and South, where bans were adopted widely across

the region, four facilities in Arkansas, Kansas, and

Oklahoma reported collectively serving over 2,500

out-of-state patients between April 2020 and January

2021—a nearly 25% increase in out-of-state patients

compared to the previous year.17

These measures were only temporary. If the

Court allows states to permanently enact equally or

more restrictive measures, the number of those

seeking out-of-state care will only grow.

C. Sharp increases in travel distances will

result from widespread adoption of previability bans.

In 2021, laws restricting abortion have

proliferated nationwide. By midyear, states had

enacted 90 such laws—already surpassing the

previous year-end record from 2011.18 Among these

2021 enactments were numerous pre-viability

prohibitions, including several more severe than the

Kyle Almond & Benazir Wehelie, She Tried to Get an

Abortion During the Pandemic. Her State Wouldn’t Allow It,

CNN, https://www.cnn.com/interactive/2020/06/health/abortionaccess-coronavirus-cnnphotos/ (last visited July 14, 2021).

See id.

State Policy Trends at Midyear 2021: Already the Worst

Legislative Year Ever for U.S. Abortion Rights, Guttmacher

Institute

(July

2021),

https://www.guttmacher.org/article/2021/07/state-policy-trendsmidyear-2021-already-worst-legislative-year-ever-us-abortion.

Mississippi restriction at issue here.19 By contrast,

California is one of only three states (plus the District

of Columbia) that has not restricted abortion in 2021.20

As of the time of this writing, 22 states have

passed laws that could be used to restrict legal

abortions if the Court decides to overturn or roll back

its decision in Roe, including 11 states with so-called

“trigger bans,” designed to ban all or nearly all

elective abortions if Roe is overturned.21

If the Court were to allow pre-viability

prohibitions on abortion, subject to some lesser

standard than the current undue-burden framework,

and all of these states moved to ban abortions entirely,

the affected population (i.e., individuals of

childbearing age for whom the distance to the nearest

abortion facility would increase) would face an

Texas enacted a six-week ban, SB8, which took effect on

September 1, 2021 after this Court denied the applicants’ request

for emergency relief. Whole Women’s Health v. Jackson, No.

21A24, 594 U.S. ___, 2021 WL 3910722 (2021). The Department

of Justice has since moved for an immediate injunction. United

States v. Texas, No. 1:21-cv-00796-RP (W.D. Tex. Sept. 15, 2021),

Dkt. 8. Arkansas and Oklahoma have banned abortion outright

except to save a patient’s life; Arkansas’s ban has been blocked,

though, and Oklahoma’s will not take effect until November.

Emma Batha, U.S. States Making 2021 Moves on Abortion

Rights and Access, Thomson Reuters Foundation (Sept. 15,

2021), https://news.trust.org/item/20201231112641-qfynt/.

Chloe Atkins, What U.S. Abortion Access Looks Like, in

Graphics,

NBC

News

(July

25,

2021),

https://www.nbcnews.com/news/us-news/what-u-s-abortionaccess-looks-graphics-n1274859.

See Abortion Policy in the Absence of Roe, supra note 3.

increased average travel distance of 249 miles—an

approximately eight-hour round-trip drive.22 Where

neighboring states also are predicted to prohibit

abortions, that number is significantly higher. For

Mississippians, for example, that distance is 384

miles; for Texans, 492 miles.23 Even for those living in

states not likely to ban abortions, travel distances

could still increase if their nearest facility is in a

neighboring state that decides to ban the procedure or

if their local facility is overcrowded by out-of-state

travelers.

D. Increased demand in states with

continued abortion access will require

some women to travel even farther to

obtain timely abortions.

As explained above, in states that have adopted or

are slated to adopt severe abortion restrictions, there

still remains a significant demand for abortions. If

the Court holds that states can impose bans on previability abortions, states that continue to offer such

care will have to try and absorb that demand. But the

volume of those who will need to look elsewhere for

care will almost certainly exceed the capacity of

nearby states to provide such care.24

Caitlin Myers et al., Predicted Changes in Abortion

Access and Incidence in a Post-Roe World, 100 Contraception

367, 372 (2019).

See id. at 368.

There may also be clinic closures due to the Trump

administration’s rule forbidding Title X funding recipients from

providing abortions or giving referrals for abortions, further

limiting availability in states with fewer abortion restrictions.

See, e.g., Pam Belluck, Planned Parenthood Refuses Federal

In the West, where CWLC is located, Texas and

Arizona are among those states that have expressed

an interest in or already moved to prohibit access to

some or nearly all elective abortions. Yet demand has

remained inelastic.

In Texas, even during the

COVID-19 pandemic and in the face of the state

effectively banning abortions between March and

April 2020, providers performed nearly 54,000

abortions for Texas residents in 2020—only a slight

decrease from 56,000 in 2019.25 In Arizona in 2019,

over 13,000 abortions were performed.26

If Texas and Arizona were to effectively ban

abortions, these almost 70,000 women would not

simply decide not to have an abortion; they would be

forced to look to nearby states for care. Even if

providers in neighboring New Mexico, Colorado, and

Nevada could slightly increase their capacity, it is

unlikely they would be able to accommodate all those

from Texas and Arizona seeking abortions. These

Funds Over Abortion Restrictions, N.Y. Times (Aug. 19, 2019).

While the Biden administration has proposed a rule to reinstate

Title X eligibility for these providers, the Trump-era rule

remains in place. Sandhya Raman, HHS Moves to Reinstate Aid

to Family Planning Clinics that Perform Abortions, Roll Call

(Apr. 14, 2021), https://www.rollcall.com/2021/04/14/hhs-movesto-reinstate-aid-to-family-planning-clinics-that-performabortions/.

Induced Terminations of Pregnancy, Texas Health and

Human Services Commission (last visited Aug. 24, 2021),

https://www.hhs.texas.gov/about-hhs/records-statistics/datastatistics/itop-statistics.

Abortions in Arizona: 2019 Abortion Report, Arizona

Department

Health

Services

(Sept.

21,

2020),

https://www.azdhs.gov/documents/preparedness/public-healthstatistics/abortions/2019-arizona-abortion-report.pdf.

three states combined typically serve less than onethird of the patients currently obtaining abortions in

Texas and Arizona.27 With Texas otherwise flanked

by states with equally or more restrictive abortion

laws, many of the over 50,000 Texans who require an

abortion each year will have to travel more than 1,000

miles to access care in California. Indeed, since Texas

Senate Bill 8 (“SB8”) went into effect, Planned

Parenthood’s California clinics have already seen an

added two to three patients from Texas a day.28

Should Arizona begin enforcing its pre-Roe

restrictions, providers in neighboring California will

see an influx of Arizonans in need of care, too.

As a result, providers in California, New Mexico,

Colorado, and Nevada would see demand for services

skyrocket, causing some out-of-state travelers to seek

abortions in states even farther from home. Residents

of California and other states that are expected to

preserve abortion access may also face long distances

to obtain timely care, due to overcrowding at their

local clinics.

Katherine Kortsmit et al., Abortion Surveillance —

United States, 2018, Centers for Disease Control and Prevention

(Nov.

27,

2020),

https://www.cdc.gov/mmwr/volumes/69/ss/ss6907a1.htm.

Molly Hennessy-Fiske, For Many Texans, It’s a Long

Drive out of State for Abortion, L.A. Times (Sept. 17, 2021).

III. TRAVELING

OUT

STATE

FOR

ABORTIONS

IMPOSES

SEVERE

FINANCIAL,

PSYCHOLOGICAL,

AND

MEDICAL

BURDENS,

WHICH

DISPROPORTIONATELY AFFECT WOMEN

OF COLOR AND THOSE LIVING IN

POVERTY.

As the Court’s precedent has consistently

reflected, requiring women to travel outside their

home state places a substantial burden on their right

to access abortions. Traveling long distances also has

severe and profound personal and financial impacts

on people seeking abortions. Because “[a] simple

measurement of distance traveled will not suffice to

capture the personal impact that distance has on the

individual seeking an abortion,”29 the Court must

consider these consequences—regardless of what

standard the Court adopts going forward.

A. Many women seeking abortions outside

their home state experience serious

financial hardship.

As of 2014, the average out-of-pocket cost for an

abortion was $474 and could be as high as $3,700.30

Most of this cost is borne directly by the patient,

because many abortion-seekers do not have medical

Jill Bar-Walker et al., Experiences of Women Who Travel

for

Abortion,

PLOS

ONE

(Apr.

19,

2019),

https://doi.org/10.1371/journal.pone.0209991.

See Sarah C.M. Roberts et al., Out-of-Pocket Costs and

Insurance Coverage for Abortion in the United States, 24

Women’s Health Issues e211, e214 (2014).

insurance,31 and most insurance carriers do not cover

the cost of an abortion procedure.32

In addition to paying for the procedure itself,

women who are forced to travel to seek abortions must

incur other related, significant costs, including

transportation, lodging, childcare, and lost wages

from taking time off work. One couple from Houston

who traveled 13 hours to the nearest abortion clinic

with availability in New Mexico during the pandemic

paid $450 for the abortion itself, and more than $2,500

for the trip in full after factoring in gas, lodging, and

meals.33 They explained that this “was definitely an

undue expense,” and it had “been financially stressful

in a time when you’d hope you wouldn’t have to face”

extra expenses.34 Another woman explained that she

traveled four hours to Atlanta to obtain her abortion

because it was the only place with availability.35 Her

insurance would not cover her abortion, and she had

Sarah Varney, Long Drives, Air Travel, Exhausting

Waits: What Abortion Requires in the South, NPR (Aug. 3, 2021),

https://khn.org/news/article/abortion-in-south-requires-travellong-waits/ (77% of 10,000 women seeking assistance from

Atlanta-based abortion fund were uninsured or publicly

insured).

Bd. Governors Fed. Reserve Sys., Report on the Economic

Well-Being of U.S. Households in 2018, at 21 (May 2019),

https://www.federalreserve.gov/publications/files/2018-reporteconomic-well-being-us-households-201905.pdf; Roberts et al.,

supra note 30.

Avila, supra note 5.

Id.

Varney, supra note 31.

to take out a loan to cover the $1,100 in total costs for

the procedure, gas, food, and medications.36

The cost of transportation alone can be

prohibitive. Many women describe having to borrow

money or a car, or rely on a friend or family member

for transportation to their appointments because they

cannot afford round-trip transportation on their

own.37 Workers at Feminist Women’s Health Center

in Atlanta regularly see patients from Alabama,

Tennessee, Kentucky, and the Carolinas, who often

have taken “long drives or flights” to get there.38 The

executive director of that center explained that some

patients may only be able to get a ride to, but not home

from, their center, requiring the center to assist in

finding return transportation.39 Of course, it is “much

simpler to go 3 or 4 miles from your home” to have an

abortion “and sleep in your bed at night,” but that “is

a luxury that so many of [their] patients can’t enjoy.”40

Women seeking abortions who already have

children also have to find childcare before they can

travel long distances to obtain an abortion. A patient

educator and financial assistance coordinator at one

of two abortion clinics in Memphis, Tennessee

explained that, “[e]specially for women coming from

long distances, child care is the biggest thing”

Id.

Bar-Walker, supra note 29, at 13.

Varney, supra note 31.

Id.

impeding an abortion, because the journey is often “a

three-day ordeal.”41

The ongoing COVID-19 pandemic has further

exacerbated these problems, as the obstacles that

people face when required to travel long distances to

obtain abortions “are made worse by COVID-19 due to

unprecedented financial constraints, school and daycare closures, and social distancing guidance.”42

Women who must travel for abortions also often

experience unwanted delays in getting abortions

because they need time to gather funds for travel costs

in addition to their procedure.43 That delay causes

further harm, as the longer an abortion is delayed, the

more expensive the procedure becomes.44 “Abortions

in later stages of pregnancy generally start at $1,000

for the procedure and the cost goes up from there.”45

Id.

Access to Abortion During the COVID-19 Pandemic and

Recession, National Women’s Law Center 2 (Mar. 2021),

https://nwlc.org/wp-content/uploads/2021/04/3.21-Brief-1-1.pdf.

Liza Fuentes & Jenna Jerman, Distance Traveled to

Obtain Clinical Abortion Care in the United States and Reasons

for Clinic Choice, 28 J. Women’s Health 1623, 1629–30 (2019),

https://www.liebertpub.com/doi/pdfplus/10.1089/jwh.2018.7496;

Diana Greene Foster & Katrina Kimport, Who Seeks Abortions

at or After 20 Weeks?, 45 Persp. on Sexual & Reprod. Health 210,

212–15

(2013),

https://onlinelibrary.wiley.com/doi/epdf/10.1363/4521013.

Varney, supra note 31. Delays in abortions also cause

heightened medical risks. See infra, Section III.C.

Susan Dunlap, With a Health Care Crisis Under Way,

New Mexico Could Be Critical for Abortion Access, The NM

Political

Report

(Feb.

2020),

Consider Amber’s story from Alabama. When she

became pregnant, she knew she “couldn’t afford

another child,” and she “called two clinics and visited

another before finding a clinic three hours from her

home that could perform her abortion.”46 She then had

trouble securing transportation to get to her

procedure, and “during this delay, her gestation

advanced such that she required a different and more

costly procedure, which she struggled to afford.”47 By

the time Amber secured the funds to cover her

procedure and travel, she was 20 weeks pregnant.48

Finally, numerous other circumstances in

women’s daily lives can increase the financial burden.

For those who experience domestic abuse, their

abusers may restrict access to money, transportation,

and other resources.49

This may constitute a

significant portion of women who are forced to travel

out of state to obtain an abortion, as anywhere

“[b]etween 6 and 22 percent of women terminate their

pregnancies because they are in an abusive

relationship.”50

https://nmpoliticalreport.com/2019/11/13/accessto-abortionlimited-in-nm/.

Foster & Kimport, supra note 43, at 216.

Id.

Id. at 215–16.

Joan B. Kelly & Michael P. Johnson, Differentiation

Among Types of Intimate Partner Violence: Research Update and

Implications for Interventions, 46 Fam. Ct. Rev. 477, 481 (2008).

LySaundra Campbell, The Hidden Link Between

Domestic Violence and Abortion, Rewire News Group (Oct. 24,

2019),

https://rewirenewsgroup.com/article/2019/10/24/thehidden-link-between-domestic-violence-and-abortion/.

B. Traveling out of state to obtain abortions

has significant psychological effects that

should not be overlooked.

In addition to the financial impacts (which

already cause severe stress on women seeking

abortions),

many

women

also

experience

psychological harm from making the deeply personal

and difficult decision of whether to seek an abortion.

Traveling out of state to obtain the procedure can

significantly compound that harm.

For example, because many women cannot afford

or arrange for travel without assistance, they may be

required to disclose their decision to obtain an

abortion to others.

This can lead to further

stigmatization of that choice,51 particularly in places

where abortion is most frowned-upon for religious or

cultural reasons. In a report that evaluated 12

qualitative studies of abortion seekers, all but two

revealed that “disclosure of having or needing an

abortion, often to individuals that participants did not

want to tell, were a direct result of the burden posed

by needing to travel.”52 Forced disclosure can be

traumatic for people who wanted to keep that

personal decision private.

Further, many women experience heavy

emotional burdens as a direct result of travel,

including “feeling uncomfortable and lonely while

traveling alone for a procedure, feeling stressed from

the need to figure out transportation and other

Kristen M. Shellenberg et al., Social Stigma and

Disclosure About Induced Abortion: Results from an Exploratory

Study, 6 Global Pub. Health S111, S118–19 (2011).

Bar-Walker, supra note 29, at 13.

logistics, as well as feeling stigmatized for the need to

travel for routine medical care.”53 One woman who

traveled from Alabama to Georgia for her abortion

reflected that “[t]he procedure itself was probably the

least traumatic part of it” when compared to the

ordeal she was forced to endure to get it.54 She said

that if the procedure would have been at her hospital,

“there would have been a feeling like what [she] was

doing was OK and a reasonable choice.”55

Stigmatization and emotional trauma can take

other forms, too. For example, because some states

have mandatory waiting periods before or after

women obtain abortions, out-of-state patients who

cannot afford lodging “often … sleep[] in their car”

while they wait for their appointments, which can be

humiliating and demoralizing.56 Others who seek

lodging at nearby hotels may face discrimination

there. An employee at Fund Texas Choice, a nonprofit

that helps arrange and pay for travel for Texas

residents seeking out-of-state abortions, said that

there is “a particular hotel in Albuquerque” that “[i]f

they found out you were going to the [abortion] clinic,

they up-charged [you],” and “[a]t one point, they threw

our client out of the hotel. It was horrifying.”57 And

women traveling out of state for abortions often do not

Id. at 13–14.

Cassidy, supra note 6.

Id.

Torey Van Oot, I’m an Abortion Travel Agent, Refinery29

(Jan.

30,

2017),

https://www.refinery29.com/enus/2017/01/138436/texas-abortion-travel-agent-stories.

Id.

have their friends or family nearby to comfort them

during what can be a very difficult time.58

Additionally, as a result of COVID-19 physical

distancing restrictions, many patients must wait

outside the abortion clinic until their appointment

time, making them more susceptible to harassment

from anti-abortion protesters. According to the Fund

Texas Choice employee, “[p]rotestors can actually be

more of a logistical obstacle than you might think.”59

She told a story about a client who “fl[ew] all the way

out to Albuquerque [from Texas], dr[ove] to the clinic,

and f[ound] herself unable to penetrate the crowd.

She got so panicked and was so upset that

she … missed her appointment.”60

Women traveling out of state to receive abortions

are also often unfamiliar with their surroundings and

therefore may be more likely to be persuaded to go to

a crisis pregnancy center—facilities that purport to

offer comprehensive reproductive health care,

including abortions, but instead actively dissuade

abortion seekers from getting care.61 As of 2010, there

were more than 200 of these centers in California

Varney, supra note 29.

Van Oot, supra note 56.

Id.

Joanne D. Rosen, The Public Health Risks of Crisis

Pregnancy Centers, Guttmacher Institute 201–05 (Sept. 10,

2012),

https://www.guttmacher.org/journals/psrh/2012/09/publichealth-risks-crisis-pregnancy-centers.

alone.62 These centers are often purposely located

next to abortion providers, increasing the odds that

out-of-state patients will be misled and not receive or

delay receiving critical care that they need.63

Finally, because of the substantial burdens

women face when seeking an abortion out of state,

fewer will be able to obtain the abortions they want

and will thus be forced to live with an unwanted

pregnancy as a result.64 Although most demand for

abortions would continue even if the Court were to

allow pre-viability prohibitions on abortion, the

projected increases in travel distances are expected to

deter abortion incidence by nearly 13%.65 In other

words, approximately 120,000 women per year would

be unable to obtain an abortion because they are

unable to travel the necessary distance to receive

one.66 This inflicts psychological hardships on both

these women and the children born as a result of

Unmasking Fake Clinics: The Truth About Crisis

Pregnancy Centers in California, NARAL Pro-Choice California

Found.,

https://www.sfcityattorney.org/wpcontent/uploads/2015/08/Unmasking-Fake-Clinics-The-TruthAbout-Crisis-Pregnancy-Centers-in-California-.pdf (last visited

Sept. 19, 2021).

Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy

Centers Are Legal but Unethical, 20 AMA J. of Ethics 269, 270–

(Mar.

2018),

https://journalofethics.amaassn.org/sites/journalofethics.ama-assn.org/files/2018-04/pfor11803.pdf.

Myers, supra note 22, at 372.

See id.

unwanted pregnancies throughout their lives.67 The

Court should not overlook these real, lasting

psychological effects that women seeking abortions

experience when access to abortions is not readily

available.

C. Forcing women to travel out of state to

obtain abortions can undermine their

medical decision-making abilities and

subject them to needless medical risks

for otherwise safe procedures.

Because women do not give up on seeking an

abortion when providers are unable to offer

appointments, they desperately search for other, often

riskier options. Indeed, many who travel out of state

to obtain abortions will be forced to endure medical

risks that would not exist had they been able to obtain

an abortion locally.68

Specifically, restrictive abortion laws that lead

women to travel for abortions can result in delays in

care that reduce the efficacy and quality of otherwise

Abortion and Mental Health, Am. Psych. Assoc.,

https://www.apa.org/pi/women/programs/abortion (last visited

Sept. 6, 2021) (“Unwanted pregnancy has been associated with

deficits to the subsequent child’s cognitive, emotional and social

processes.”).

As discussed, supra in Section II.D, increased travel to

out-of-state abortion providers will also impact the timing and

quality of abortion care in-state residents will receive if abortioncare resources in their state are constrained by increased

demand from out-of-state patients.

safe legal abortions.69

Studies show that legal

abortions in the United States are “safe and effective,”

with serious complications occurring “far less

frequently than during childbirth.”70

But by

“limit[ing] the number of available providers,

misinform[ing] women of the risks of the

procedures …, overrul[ing] their decision making, or

requir[ing] medically unnecessary services” and

imposing mandatory waiting periods, abortionrestrictive laws “do[] not improve … safety” for women

seeking abortions and can “actually worsen” it.71

Indeed, a 2018 study noted that “delaying” abortion

“increases the risk of harm to the woman” because the

risk of a serious complication, while still rare,

“increases with weeks’ gestation” and “[a]s the

number of weeks increases, the invasiveness of the

required procedure and the need for deeper levels of

sedation also increase.”72 For example, “medical

abortion,” which is only available during the first 10

See Nat’l Academies of Sciences, Engineering, and

Medicine, The Safety and Quality of Abortion Care in the United

States 10–11 (2018), https://doi.org/10.17226/24950.

See id. at 11; see also Genevra Pittman, Abortion Safer

than Giving Birth: Study, Reuters (Jan. 23, 2012),

https://www.reuters.com/article/us-abortion/abortion-saferthan-giving-birth-study-idUSTRE80M2BS20120123.

See Nat’l Academies, supra note 69, at 10–11; see also

Alison Kodjak, Landmark Report Concludes Abortion in U.S. Is

Safe, NPR (Mar. 16, 2018), https://www.npr.org/sections/healthshots/2018/03/16/593447727/.

Nat’l Academies, supra note 69, at 77–78.

weeks of pregnancy and is obtained via pills,73 may be

less risky than abortions performed later in gestation,

which while still safe, are more invasive (like suction

curettage abortions and dilation and evacuation).74

Therefore, a woman who would have, but for abortionrestrictive laws or bans, obtained a less-invasive

medical abortion from a local care provider, may

instead be forced to delay her abortion for out-of-state

travel and obtain a riskier one.

Bans limiting abortion access during the COVID19 pandemic, discussed supra in Section II.B,

illustrate the delays and increased risks that result

when abortion access is restricted but demand

remains the same. For example, in May 2020, Texas

(which limited abortions during the pandemic), saw

an 83% increase in abortions at 12 or more weeks’

gestation, a more costly and potentially more

medically risky procedure.75 A survey of independent

abortion providers further revealed that in states that

declared abortion non-essential, over 70% of clinics

canceled or postponed medication abortions, and over

90%

canceled

postponed

first-trimester

See Medical vs. Surgical Abortion, Whole Woman’s

Health,

https://www.wholewomanshealth.com/medical-vssurgical-abortion/ (last visited July 14, 2021).

See Medical Versus Surgical Abortion, UCLA Health,

https://www.uclahealth.org/obgyn/medical-versus-surgicalabortion (last accessed Sept. 2, 2021); see also Nat’l Academies,

supra note 74, at 79–80.

Amy Littlefield, As the Pandemic Raged, Abortion Access

Nearly Flickered Out, The Nation (Feb. 23, 2021),

https://www.thenation.com/article/society/abortion-access-covidpandemic/.

procedures.76 Thus, women in these states were forced

to delay their care and, as a result, obtain a more

medically risky abortion.

Women traveling out of state to obtain abortions

may also experience a reduced quality of abortion

aftercare. After expending time and resources to

travel out of state, many women cannot afford to

return to that provider for follow-up appointments.

They may instead have to self-treat any after-effects

or seek care at an emergency facility. Studies show a

correlation between greater distances traveled for an

abortion and an increased likelihood of seeking

subsequent care at an emergency facility, as well as a

“reduced likelihood of seeking subsequent care at the

original abortion site.”77 Seeking abortion aftercare

services from an emergency facility may also lead to

reduced quality of care. “Compared with [emergency

facility] staff, abortion providers are typically better

equipped to evaluate abortion patients’ symptoms and

avoid unnecessary use of additional interventions.”78

Women traveling long distances to obtain

abortions may also be stripped of autonomy over their

medical decision-making, as abortion restrictions

effectively force them to choose termination methods

Sarah C.M. Roberts, COVID-19 and Independent

Abortion Providers: Findings from a Rapid-Response Survey, 52

Persp. on Sexual and Reprod. Health 217, 221 (2020).

See Ushma Upadhyay et al., Distance Traveled for an

Abortion and Source of Care After Abortion, 130 Obstetrics &

Gynecology

616,

621

(Sept.

2017),

https://journals.lww.com/greenjournal/Fulltext/2017/09000/Dist

ance_Traveled_for_an_Abortion_and_Source_of.17.aspx.

Id. at 622.

they would not have otherwise chosen. The story of

Ana, a 21-year-old woman from Texas, is instructive.

Ana first called her local clinic to make an

appointment when she was six weeks pregnant but

was told that the wait time would be three weeks—“a

common occurrence in Texas due to capacity issues

created by … clinic shortage.”79 A three-week delay

would have pushed Ana outside the time permitted for

the type of abortion she wanted,80 and increased the

cost of her abortion so as to make it “financially out of

reach.”81 Rather than wait, Ana made an appointment

with a clinic over 300 miles away.82 But, because

Texas law requires follow-up appointments after

medical (i.e., pill-based) abortions—which was the

termination method Ana preferred—and because Ana

could not afford to make the trip again for an

additional visit, she had no choice but to undergo a

surgical abortion that did not require a follow-up

appointment.83 Ana’s story is not unique. Many have

had to forgo their preferred, less invasive abortion

method in favor of surgical abortion to limit the travel

distance, number of visits, and possibility of

See Madeline M. Gomez, More than Mileage: The

Preconditions of Travel and the Real Burdens of H.B. 2, 33.1 Col.

J. of Gender & L., 49, 53–54 (2016).

If Ana sought an abortion in Texas today, under S.B. 8,

a three-week delay would preclude her from seeking an abortion

entirely.

Id.

See id.

experiencing abortion symptoms, like cramping and

bleeding, while traveling.84

Finally, travel-related costs and barriers to

abortion may at times be so severe as to lead women

to self-induce their abortions, rather than see an

abortion provider.85 A review of studies analyzing

women’s experiences traveling for abortion found that

one-third of the qualitative studies analyzed described

travel-related burdens “forc[ing] some participants to

consider or attempt self-inducing to end their

pregnancies.”86 Selena, for example, is a Texas

resident who resorted to self-inducing after her local

clinic shut down, leaving the next closest provider four

hours away.87 If the Court decides that pre-viability

abortion restrictions are subject to something less

than undue-burden review or are otherwise

constitutional, it is not only needless medical risks

and costs for otherwise safe abortion procedures that

will rise. Incidents of women taking matters into

their own hands, as Selena did, will also undoubtedly

increase.

See Bar-Walker, supra note 29, at 14.

See id.

Id.

See Ellen Wulfhorst, Up Against Strict Laws, Texas

Women Learn Do-It-Yourself Abortions, Reuters (May 24, 2016),

https://www.reuters.com/article/us-abortion-usa-texasdoityourself/up-against-strict-laws-texas-women-learn-do-ityourself-abortions-idUSKCN0YF1BC.

D. Women living in poverty and women of

color

disproportionately

shoulder

burdens

arising

from

out-of-state

abortions.

Studies show that women living in poverty are

more likely both to seek an abortion and live in states

with the most restrictive abortion laws.88 In 2014,

75% of abortion patients in the United States were

low-income individuals; nearly 50% lived below the

federal poverty level.89 Of 21 states categorized as

hostile or very hostile to abortion,90 14 have the

highest percentages of total population living in

Erin Durkin, ‘Women Will Die’: How New Abortion Bans

Will Harm the Most Vulnerable, The Guardian (May 19, 2019),

https://www.theguardian.com/us-news/2019/may/19/abortionban-alabama-women-of-color-poor; Jerman et al., Barriers to

Abortion Care and Their Consequences for Patients Traveling for

Services: Qualitative Findings from Two States, Guttmacher

Institute

(June

2017),

https://www.guttmacher.org/journals/psrh/2017/04/barriersabortion-care-and-their-consequences-patients-travelingservices.

Rebecca Wind, Abortion Is a Common Experience for U.S.

Women, Despite Dramatic Declines in Rates, Guttmacher

Institute (Oct. 19, 2017), https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-women-despitedramatic-declines-rates.

See Elizabeth Nash, State Abortion Policy Landscape:

From Hostile to Supportive, Guttmacher Institute (Dec. 30,

2020),

https://www.guttmacher.org/article/2019/08/stateabortion-policy-landscape-hostile-supportive (defining “hostile”

and “very hostile” based on the various categories of abortion

restrictions and protections).

poverty among all states.91

One such state is

Mississippi, which is categorized as “very hostile” to

abortion rights92 and has the highest percentage of

individuals living in poverty among all states—

19.5%.93 For women living in poverty in these

restrictive states, the high costs of travel and

increased medical burdens discussed supra in

Sections III.A & C, may make it all but impossible to

obtain an abortion.94 Low-income women living in

states with better abortion access will also feel the

effects of out-of-state travel, as abortion resources in

their home states are constrained by an influx of outof-state patients seeking an abortion.95

For these same reasons, women of color will

also unfairly shoulder the costs and burdens

associated with out-of-state abortions regardless of

where they live. One analysis of Texas SB8 found that

See Percent of Total Population in Poverty, 2019, U.S.

Dep’t

Agric.

(Jan.

2021),

https://data.ers.usda.gov/reports.aspx?ID=17826#P5202283d01

e847a194b2d55ae25e3a99_2_229iT3.

Nash, supra note 90, at 2.

U.S. Dep’t of Agric., supra note 91.

Shannon Brewer, the director of Respondent, Jackson

Women’s Health Organization, has noted that “women can

barely afford to come [to her facility], much less go out of state.”

Ariane de Vogue, Poorest Americans Could See Biggest Impact of

Reversing

Roe

Wade,

CNN

(July

30,

2021),

https://www.cnn.com/2021/07/30/politics/roe-v-wade-abortionginsburgbarrett/index.html?utm_source=feedburner&utm_medium=feed

&utm_campaign=Feed%3A+rss%2Fcnn_topstories+%28RSS%3

A+CNN+-+Top+Stories%29.

See supra Section II.D.

the law would “particularly affect Black patients and

those living on low incomes or who live far from” an

abortion provider.96 More broadly, women of color

make up the majority of patients who seek abortion

services in the United States.97 Nine states that are

considered “hostile” or “very hostile” to abortion have

at least 40% of their population identifying as

something other than “white alone.”98 And due to

“chronic racism” and “deeply entrenched inequities in

the areas of health insurance coverage[] [and] health

care,”99 women of color are already more likely to

experience “barriers to abortion and other

Kari White et al., Texas Senate Bill 8: Medical and Legal

Implications, Texas Policy Evaluation Project (July 2021),

http://sites.utexas.edu/txpep/files/2021/07/TxPEP-researchbrief-senate-bill-8.pdf.

See Susan A. Cohen, Abortion and Women of Color: The

Bigger

Picture,

Guttmacher

Institute

(Aug.

2008),

https://www.guttmacher.org/gpr/2008/08/abortion-and-womencolor-bigger-picture.

See Nash, supra note 90, at 2; see also Race and Ethnicity

in the United States: 2010 Census and 2020 Census, U.S. Census

Bureau

(Aug.

12,

2021),

https://www.census.gov/library/visualizations/interactive/raceand-ethnicity-in-the-united-state-2010-and-2020-census.html;

Jamila Taylor, Women of Color Will Lose the Most if Roe v. Wade

Is Overturned, Ctr. for Am. Progress (Aug. 23, 2018),

https://www.americanprogress.org/issues/women/news/2018/08/

23/455025/women-color-will-lose-roe-v-wade-overturned/.

Jessica Arons & Medina Agenor, Separate and Unequal:

The Hyde Amendment and Women of Color, Ctr. For Am.

Progress 13–16 (2010), https://cdn.americanprogress.org/wpcontent/uploads/issues/2010/12/pdf/hyde_amendment.pdf.

reproductive and maternal health services.”100

Increased burdens imposed by out-of-state travel for

abortion will only further exacerbate these inequities.

CONCLUSION

The Court should uphold its precedent and affirm

the Fifth Circuit’s holding that Mississippi’s ban on

pre-viability elective abortions is unconstitutional.

But if the Court is inclined to revisit its decades of

abortion jurisprudence affirming the constitutional

right to choose an abortion pre-viability, it should

maintain its undue-burden framework and hold that

any restrictions that impose an undue burden on

women seeking abortions—regardless the stage of

pre-viability pregnancy—are unconstitutional. At the

very least, the Court should continue considering the

significant harm that women forced to travel long

distances to obtain abortions will face as a factor when

evaluating the constitutionality of any abortion

restriction or prohibition. Restrictions that have the

effect of requiring women to travel outside their home

states to obtain abortions cause significant hardships

on both these women and the states that must absorb

out-of-state patients.

The Court cannot simply

overlook these hardships when determining whether

an abortion prohibition or restriction is constitutional.

100

Taylor, supra note 98; see also Marcela Howell & Ann M.

Starrs, For Women of Color, Access to Vital Health Services Is

Threatened,

Guttmacher

Institute

(July

27,

2017),

https://www.guttmacher.org/article/2017/07/women-coloraccess-vital-health-services-threatened.

Respectfully submitted.

THEANE D. EVANGELIS

Counsel of Record

LAUREN BLAS

JILLIAN LONDON

EMILY SAUER

ADRIENNE LIU

NICOLE MATTHEWS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Amicus Curiae

September 20, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.