Home>Feature>Lowenstein Center guide details potential abortion-related legal risks in post-Roe world 

Grandmothers and great-grandmothers in support of legal abortion at a demonstration in Teaneck organized by former Senate Majority Leader Loretta Weinberg. (Photo: Francine Weinberg Graff via Twitter).

Lowenstein Center guide details potential abortion-related legal risks in post-Roe world 

Set of FAQs lays out possible liabilities for out-of-state abortion patients and those who help them

By Joey Fox, September 19 2022 4:59 pm

Abortion is fully legal in New Jersey, both for those who live in the state and those coming from out of state to receive the procedure. But a new guide released by the Lowenstein Center for the Public Interest, an offshoot of the prominent law firm Lowenstein Sandler, cautions that there still may be dangers involved for out-of-state residents who seek abortions in New Jersey and for those who assist them.

In three separate Frequently Asked Question guides for patients, employers, and “helpers” – those assisting others from out-of-state in getting abortions – the center notes that zealous legislation in states where abortion is restricted or banned could end up targeting abortions performed in New Jersey.

“It is normally safe for a person to travel to a state and engage in conduct that is legal in the state the person is visiting,” the FAQ for helpers says. “There is a risk, however, that the normal rules will not stop prosecutors in other states from trying to apply their existing criminal laws to prevent people from helping residents of ban states get legal abortions in other states. We do not yet know how courts in ban states will react to such law enforcement tactics.”

The U.S. Supreme Court’s decision overturning the constitutional right to abortion left the issue up to individual states, and New Jersey, like most Democratic-controlled states, has maintained full abortion access within its borders.

Gov. Phil Murphy also recently signed legislation prohibiting the state from assisting out-of-state abortion investigations, protecting people from extradition in most cases, and ensuring private health information remains private, laws which could become an important safeguard if other states target abortions performed in New Jersey. (Further legislation creating a public abortion fund, among other things, has so far stalled.)

But as the Lowenstein Center noted, New Jersey’s laws have some exceptions, and it’s not yet clear how other states’ laws – many of which are changing rapidly – will be interpreted and enforced.

“Those who help such out-of-state patients obtain care in New Jersey can become targets of opponents of legal abortion in other states,” the FAQ says. “The risk may be low, and you are lucky to be in New Jersey, where the state has taken meaningful steps to protect you… But the risk still exists.”

Though no state has so far made it directly illegal for its residents to obtain abortions in other states, there are a number of other liabilities that could befall both patients and those assisting them. 

The center cited financially helping minors travel to New Jersey for abortions and receiving abortion medication from New Jersey while living in an abortion ban state, among other activities, as particularly risky. Many states have also made it possible for private citizens to sue individuals for assisting abortion access, which could apply to New Jerseyans under certain circumstances.

Asked whether the governor was considering any further legislation that might address some of these issues, Murphy spokesperson Alyana Alfaro said that he was open to continuing discussions.

“Governor Murphy believes that protecting reproductive freedom is critical,” Alfaro said. “We continue to assess how we can protect access to reproductive rights in New Jersey, and welcome ideas that will further this mission.”

The center noted that, whatever the risks involved, it does not intend to dissuade out-of-staters from coming to New Jersey or New Jerseyans from assisting them – only to make them aware of potential risks, many of which remain highly volatile or unknowable. 

“Our goal is not to deter you, but to inform you and help you identify when an individual risk assessment is especially important,” the FAQ says.

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