by Stephen L. Carter
With Roe v. Wade no longer the law of the land, women seeking abortions will soon start traveling. Could a state punish an employer for covering their costs? The issue is likely to arise: A number of major corporations have come forward with offers to pay the expenses of employees who leave the state to end their pregnancies, and some state legislators are threatening to punish them.
In a recent column, I explained why I’m skeptical about both the wisdom and constitutionality of state laws that would criminalize obtaining an abortion outside the state. (Based on his separate concurrence, Justice Brett Kavanaugh agrees.) But if the travel is paid for by an in-state actor — such as an employer — the case might come out differently.
States obviously have the authority to define and punish crimes that occur within their borders. Once upon a time, the state’s territory largely marked the bounds of its criminal law. A state could often punish an act in another state that resulted in harm within its own borders, but the reverse wasn’t always true. Consider, for example, an 1894 case involving a defendant who, while standing entirely within North Carolina, fired a shot that killed a man who was standing entirely in Tennessee. The court ruled that the defendant could be punished only in Tennessee, because the simple act of firing a gun was not illegal in North Carolina; only the result was, and the result took place on the other side of the border.
Within a year, North Carolina revised its criminal law so that anyone else doing the same thing could be punished. Nowadays, states claim a broad jurisdiction to punish acts within their borders that facilitate crimes outside their borders. Consider a non-custodial parent who legally takes the children out of the state and then doesn’t bring them back. Although the crime is being committed outside the borders, just about every court to consider the matter has agreed that the state where the children live can prosecute.
The issue also arises in other situations where the defendant has crossed the border. Here’s the California Supreme Court, writing in a sexual abuse case from 2005: “California has territorial jurisdiction over an offense if the defendant, with the requisite intent, does a preparatory act in California that is more than a de minimis act toward the eventual completion of the offense.”
The law in most states is similar. Yet although it’s hard to imagine that simply exiting the state could reasonably be deemed a “more than de minimis act,” paying someone’s expenses to cross the border might well be.
If a state can forbid abortions, it can probably forbid significant acts facilitating abortions, just as it can with any other crime. True, as I noted in my previous column, the Supreme Court has been uneasy at the idea of allowing a state to punish a corporation for an act the corporation does elsewhere. Here, however, the act — paying the employee’s expenses, thus facilitating the abortion — would be done, or at least arranged, within the state. Thus the state might well have jurisdiction.
I’m not predicting that the courts would necessarily uphold a law forbidding corporations doing business within its borders to reimburse travel expenses of employees who obtain abortions elsewhere. But one shouldn’t regard the possibility as farfetched.
That’s not to suggest that such a law would be wise. Even the most ardently anti-abortion legislator might think twice about laws that could encourage employers to leave the state. Moreover, even if the legislature welcomes the chance to tangle with Starbucks or Amazon, practical problems of enforcement abound.
Let’s suppose that the state does indeed ban corporations from paying the expenses of employees who travel to end their pregnancies, and the ban is indeed upheld by the courts. How exactly would the state know whether the corporations were breaking the law? One can imagine regulatory agencies or legislative committees demanding financial records to show exactly which employees had left the state at the company’s expense and why, or perhaps a certification of some sort (on pain of perjury) that no corporate funds had been expended for the forbidden purpose. We’d likely see a bizarre tangling of ideological lines, as liberals lined up in defense of corporate autonomy from legal control.
Still, in a post-Roe world, the state might prevail. So perhaps instead the company could find a clever workaround. Rather than pay for trips to secure abortions, the company might instead offer early pregnancy leave that happens to include paid travel. If that device seems too transparent, the company might instead adopt a policy of paying a couple of times a year for any employee to travel to any nearby state for up to, say, two weeks. In an era of remote work, this possibility might be less absurd than it sounds. And if the employee happens to obtain an abortion while traveling, nobody would need to know.
Speaking of the right to privacy.
