Montana “Trafficking” Bill Shows Endgame for Abortion Rights Foes

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The Montana Legislature is set to consider a bill on “abortion trafficking.” That might sound familiar: Idaho and Tennessee have already passed their own trafficking laws, which make it a crime to harbor, transport, or recruit a minor for abortion, even in a place where the procedure is legal. These laws are raising important questions about the criminalization of abortion-related speech. But the Montana bill is different: It defines the fetus as the child being trafficked—and makes it a crime for anyone to transport or aid someone else in transporting “an unborn child” for an abortion that would be illegal in Montana. The bill exposes the endgame of the “abortion trafficking” strategies: laws that would allow conservatives to take shots at states where abortion is legal, all while setting a precedent for fetal personhood.

After the Supreme Court reversed Roe v. Wade in 2022, abortion foes were well aware of the challenges they faced in actually enforcing state bans. At least for people with resources, it wasn’t that hard to travel for abortion or order pills online. Then in 2023, a number of states passed shield laws intended to protect their residents from criminal or civil charges related to aiding out-of-state abortion seekers. Data from the first years without Roe suggest that the total number of abortions in the United States hasn’t declined, no doubt partly due to travel across state lines and access to abortion pills.

Anti-abortion leaders saw that coming. For that reason, the National Right to Life Committee proposed a model law like the one Idaho passed as a first step to addressing the issue of interstate travel. Focusing on minors was designed to make the bill more politically palatable: Even some Americans who support abortion rights accept restrictions mandating parental involvement.

But the architects of the Texas S.B. 8 abortion bounty bill, Jonathan Mitchell, the former Texas solicitor general, and Mark Lee Dickson, had a very different idea of trafficking in mind. Traveling to towns and counties across Texas in 2023, Dickson lobbied for ordinances defining trafficking as “knowingly transporting any individual for the purpose of providing or obtaining an elective abortion, regardless of where the elective abortion will occur.” He had in mind not only those who gave women a ride but also donors and abortion funds that facilitate abortion-related travel for low-income people: The ordinances also applied to anyone who “aided or abetted” abortion-related travel.

Idaho’s law defined any aid to a minor seeking abortion as coercive. Dickson’s Texas ordinances applied to adults. Abortion-related travel was always trafficking, he argued, because “the unborn child is always taken against their will.” The ordinances allowed anyone to sue those who helped people travel for abortion but exempted pregnant women themselves. The goal, Dickson explained, was to create a kind of legal barrier that would make it hard for anyone to travel outside of Texas for abortion unless they did so without any support at all.

Montana’s bill builds on Mitchell and Dickson’s strategy in significant ways. The law appears narrower: It targets only those procedures that are already unlawful in Montana, which is a small subset of procedures late in pregnancy. That’s savvy: While some counties and towns across Texas passed a version of their ordinance, Mitchell and Dickson ran into surprising resistance even in some parts of Texas when they pitched the idea of punishing those who facilitated travel for any abortion. In towns like Amarillo, local lawmakers who generally embraced fetal rights balked at the idea of regulating all abortion-related travel. The next generation of trafficking bill tries to soften opposition by focusing only on some abortions.

In other critically important ways, though, the proposed bill is broader: It applies not just those who aid travelers but to women themselves. And the bill is similar in all the ways that count. It tries to stop interstate abortion travel and reinforces the idea of fetal personhood.

Montana may seem to be a strange place to float such a bill. The state Supreme Court has recognized a right to abortion since 1999, and in 2024, Montana voters enshrined reproductive rights in their state constitution. If passed, the bill might face steep hurdles in state court, and voters in the state are hardly clamoring for sweeping bans. What’s more, even if it stood, the bill wouldn’t stop that much travel since Montana law protects abortion access until viability, and post-viability terminations are exceedingly rare.

But the bill is a sign of where trafficking strategies are likely headed—and why they have captured conservatives’ attention. Since Donald Trump took office, the nation’s most powerful anti-abortion groups have focused on eliminating access to abortion pills. After all, most abortions nationwide take place using pills, and states have struggled to enforce their bans when patients can order pills online. Conservative attorneys general have also taken aim at doctors who mail pills across state lines, with Louisiana pressing criminal charges against a shield provider and Texas bringing a civil suit. But movement leaders understand that undercutting travel is important too: State bans aren’t going to be that effective for those who can easily leave a state.

Trafficking laws can deter travel by isolating an abortion seeker or even threatening punishment—there is precedent for states that don’t punish women for abortion authorizing penalties for related conduct, like obstructing justice, concealing evidence, or substance use during pregnancy. And trafficking laws reinforce the message that the fetus is a person deserving of protection from the moment an egg is fertilized.

There are any number of state laws that recognizing fetal personhood in some capacity. It’s not clear how or even if some of those laws are enforceable. But they’re part of a longer plan to normalize the legal recognition of fetal rights in areas unrelated to abortion or in vitro fertilization. If states recognize fetal rights across a range of contexts, abortion opponents will argue, the federal courts would be remiss not to recognize constitutional fetal rights too.