Fox host dismisses concerns that states are restricting interstate travel for abortions. Red states are already drafting legislation.

Kayleigh McEnany dismisses the concern as a “red herring”

Written by Media Matters Staff

Published

From the July 8, 2022, edition of Fox News' Outnumbered

KAYLEIGH MCENANY (HOST): Well, what about to see, Emily, is a giant red herring. I had our “Brain Room" look and here is what they found. Currently, no states ban or have attempted to ban interstate travel to obtain abortions. That is the crux of this EO we're about to find. Not only that, if you read the opinion, Kavanaugh has a concurrence, and his concurrence says this: Some of the other abortion-related legal questions raised by today's decisions are not too especially difficult as a constitutional matter. For example, a state cannot bar a resident of another state from traveling to another state to obtain an abortion. In my view, the answer to that question is no, based on the constitutional right to interstate travel.

Kavanaugh, Roberts, three liberal justices, that equals five. So he's trying to go after something that, quite simply, if you read the opinion, is a red herring.

Contrary to McEnany's assertion, there is already reporting that states are targeting such travel, using not a straight ban but modeling legislation similar to Texas' abortion law that allows private citizens to sue.

The Washington Post reported on June 29:

Several national antiabortion groups and their allies in Republican-led state legislatures are advancing plans to stop people in states where abortion is banned from seeking the procedure elsewhere, according to people involved in the discussions.

The idea has gained momentum in some corners of the antiabortion movement in the days since the Supreme Court struck down its 49-year-old precedent protecting abortion rights nationwide, triggering abortion bans across much of the Southeast and Midwest.

The Thomas More Society, a conservative legal organization, is drafting model legislation for state lawmakers that would allow private citizens to sue anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside of that state. The draft language will borrow from the novel legal strategy behind a Texas abortion ban enacted last year in which private citizens were empowered to enforce the law through civil litigation.

The right-wing Washington Examiner similarly reported on June 30:

Conservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans.

The Thomas More Society, a conservative public interest law firm, has worked with red-state lawmakers to draft model legislation regulating interstate travel for abortions that would employ the civil enforcement mechanism that propped up Texas's six-week abortion ban, the Washington Post reported. The bills would target anyone seen to be aiding and abetting interstate travel for abortion services. Private citizens who suspect someone of assisting in the procurement of an abortion would be authorized to sue that person, and the state would award a $10,000 “bounty” for successful lawsuits.

“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”

The National Association of Christian Lawmakers, an anti-abortion organization led by red-state lawmakers, has also begun working with the authors of Texas’s abortion ban to come up with model legislation aimed at impeding travel for abortion to states without bans.

Montana clinics are reportedly already restricting treatment options for out-of-state residents.