Chasing Abortion Rights Across the State Line

Linda Greenhouse

Half slave and half free. The last time the United States split into two countries, it didn’t work out at all well.

If that sounds like a hyperbolic reaction to the yawning red state, blue state divide, so be it. It’s prompted by the picture that President-elect Donald J. Trump painted the other day of what would happen if he achieved his goal of appointing enough Supreme Court justices to overturn Roe v. Wade.

The question of abortion “would go back to the states,” Mr. Trump told Lesley Stahl of CBS News during a conversation on “60 Minutes.” Ms. Stahl asked him what would become of women seeking abortions in states that banned the procedure. “They’ll perhaps have to go — they’ll have to go to another state,” the president-elect replied.

And so they would, traveling a new underground railroad from red to blue. The image is not far-fetched. An Indiana legislator the other day announced a plan to introduce a “Protection at Conception” bill, criminalizing all abortions, when the State Legislature convenes in January. It’s wildly unconstitutional today and for the immediate future, of course — but down the road, in a world of Trump-picked Supreme Court nominees confirmed by a Republican Senate presided over by Vice President Mike Pence, who was one of the country’s leading anti-abortion governors, it’s possible to envision such a measure being upheld. (As of today, Justices Clarence Thomas and Samuel A. Alito Jr. would overturn Roe in a heartbeat, as Justice Antonin Scalia would have done if given the chance; Chief Justice John G. Roberts Jr. would probably prefer a more incremental route to cutting off access to abortion, so the question would be whether he would join four solid votes for taking Roe all the way down.)

Mr. Trump spoke accurately: Overturning Roe v. Wade would not criminalize abortion, but would leave the question up to the states. There’s no doubt that some states would avail themselves of the option of banning abortion; Mississippi defended, all the way up to the Supreme Court last year, its right to impose regulations that would have concededly shut the state’s sole remaining abortion clinic. Women can find clinics in Tennessee, Louisiana or Alabama, the state argued.

It’s Mr. Trump’s evident approval of such an outcome that I want to focus on. His comments were reckless or cynical or both. They resonate with a dark period of Supreme Court history, when “separate but equal” was the law of the land. Yet even the Supreme Court of the 1930s, decades from questioning the prevailing racial ideology, was stopped short by a case from Missouri, State of Missouri ex rel. Gaines v. Canada. (The Canada in the case title was not the country, but the name of an official at the University of Missouri.) Lloyd Gaines was a graduate of Lincoln University, Missouri’s state university for black students, who were excluded from the University of Missouri. He wanted to become a lawyer, but Lincoln University had no law school. He applied to the University of Missouri’s law school, for which his academic record qualified him, but his race did not. His application was rejected, and he was advised to apply for the scholarship that a state law made available to black students forced to leave the state in order to pursue their educational goals. In the language of the statute, university officials “shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university, and to pay the reasonable tuition fees for such attendance.”

Mr. Gaines declined the offer. Represented by Charles Hamilton Houston, a pioneering lawyer for the N.A.A.C.P., he went to court. He lost in the Missouri Supreme Court, which noted that he could attend law school with full tuition paid and with only minor inconvenience at the state law schools of Kansas, Nebraska, Iowa or Illinois, all of which accepted black students.

“We think that these matters are beside the point,” Chief Justice Charles Evans Hughes wrote for the United States Supreme Court, overturning the state court’s ruling. “The basic consideration is not as to what sort of opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color.” The chief justice went on to say that each state was “responsible for its own laws establishing the rights and duties of persons within its borders,” and that “it is an obligation the burden of which cannot be cast by one state upon another, and no state can be excused from performance by what another state may do or fail to do.”

Given the option of admitting Mr. Gaines to the University of Missouri or opening a law school for black students, the state chose the latter. The N.A.A.C.P. planned to challenge the new law school as not equal to the University of Missouri’s, but Mr. Gaines, who had grown ambivalent about attending law school, left the state and disappeared. He was never found, and the new lawsuit was dropped.

The Gaines case is not well known today outside of Missouri, where the state university has a scholarship in his name and 10 years ago awarded him a posthumous honorary degree. But it has been rediscovered in the recent litigation over state restrictions on abortion. Two years ago, a federal district judge in Alabama, Myron Thompson, invoked the case in striking down the state’s requirement that doctors who perform abortions have admitting privileges at local hospitals. Because most hospitals in Alabama refused to give admitting privileges to doctors who performed abortions, the requirement would have closed three of the state’s five abortion clinics. The state argued that women could go elsewhere. But “the state could identify no precedent for a court to consider conduct outside the political boundaries of a jurisdiction in order to justify the constitutionality of actions by that jurisdiction,” Judge Thompson wrote, citing the Gaines case.

Last year, the very conservative United States Court of Appeals for the Fifth Circuit struck down Mississippi’s admitting-privileges requirement, which would have closed the Jackson Women’s Health Organization, the state’s only abortion clinic. This was the same Fifth Circuit that upheld a Texas law that would have shut down three-quarters of that state’s abortion clinics, leaving only eight or nine, had the Supreme Court not ruled in June in Whole Woman’s Health v. Hellerstedt that the law was unconstitutional. Even for the Fifth Circuit, the Mississippi situation went too far. “Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights, a principle that obviously has trenchant relevance here,” the court said, adding that Gaines “locks the gate for Mississippi to escape to another state’s protective umbrella.” In June, after issuing its decision in the Texas case, the Supreme Court denied Mississippi’s appeal without comment.

While President-elect Trump’s “let them go somewhere else” was at odds with the country’s deep seated constitutional culture, it also conveyed a “let them eat cake” cynicism. In the old days, women who had connections and could afford to travel could almost always get a safe abortion — if not in this country, through an underground network of liberal clergy who referred women to willing doctors, then in Puerto Rico or England, for women on the East Coast, or in Mexico or Japan, for women in the West. (When Reva B. Siegel and I were compiling documents for our book on the pre-Supreme Court years of the abortion controversy, perhaps the most chilling document we found was a typed two-page instruction sheet labeled “ ‘Rush’ Procedure for Going to Japan.” In its precise detail about flights, Tokyo taxis, how to get a passport, and how to explain the trip’s short duration to United States customs officials on returning, this document, in the Schlesinger Library at the Radcliffe Institute for Advanced Study, brought to life a vanished world — or so we assumed when we did the research back in 2009.)

Getting on a plane for a domestic flight from Jackson, Miss., or Birmingham, Ala., or Indianapolis is easier, of course. All it takes is time and money. Maybe Mr. Trump’s remark was aimed at women who have both: a way of saying, don’t worry, you’ll always be able to get your abortion. In fact, most women who get abortions today are low-income, defined as less than twice the federal poverty level, a trend that is accelerating as middle-class women avoid unplanned pregnancy by availing themselves of reliable, long-lasting (and expensive) birth control methods. If the president-elect’s vision becomes reality, for women, the border — a virtual wall? — will be internal, and those most in need will be most unable to cross it.