There were a couple of stories on that proposed abortion clinic on a ship in the Gulf of Mexico, which will operate in federal waters and thus be outside state jurisdiction. The clinic is intended to serve women in the Gulf Coast states, all of whom are living in states that are hostile to abortion rights (though it is still legal in Florida for now), and as Dr. Meg Autry, the creator of the idea who is now busy fundraising for it, it would be a lot closer geographically for a lot of these women than other states with legal clinics would be.
All of that is in the two stories. I want to focus on what I fixated on in my original post, which is the security and legal threats to this idea. I’m just going to pull from those sections of the stories. We’ll start with NPR:
Autry and her nonprofit are also hesitant to provide too much detail about how people will be able to access the vessel, citing safety concerns. Without elaborating, she says she anticipates that her group will be a part of the many existing networks trying to coordinate abortion care for people who can’t get it in their state.
People seeking or providing an abortion could face prosecution or, Autry fears, violence. She calls security her group’s top concern.
And she says that while their team is secure in their understanding of the law, it’s bracing for potential legal challenges “along the way, all the time.” That’s in part because of ever-changing laws and lawsuits unfolding in restrictive states.
Amanda Allen, senior counsel and director at the Lawyering Project — which represents PRROWESS — tells NPR over email that there’s no doubt about the legality of providing abortions at sea, because states don’t have jurisdiction over the care provided in federal or international waters. She compares it to the way that an abortion provider in New York would care for a patient traveling from a restrictive state.
Still, she says their team is exploring the same questions that they would look at in the case of a provider looking to open a clinic in a state where abortions are not banned.
Those include whether there are rules governing the facility where the care is provided, and what kind of licensure and staffing is required. They’re also looking at the threats that could face abortion providers — floating or otherwise — who treat patients traveling from restrictive states.
“Given the climate of abortion access post-Dobbs, nothing is zero-risk,” Allen writes. “Because of that we are concerned about the same types of extraterritorial questions that are already creating chaos and legal uncertainty onshore. While a state’s criminal laws should not reach a provider at sea, a rogue prosecutor could choose to target PRROWESS, or a hostile state authority could open an investigation.”
And here’s Yahoo News.
So what does maritime law say about abortions at sea? “Maritime law, by its own force, doesn’t speak to abortions provided at sea,” Matthew Steffey, a professor of law at Mississippi College specializing in maritime law, tells Yahoo Life. “In theory, a maritime treaty could cover the subject, but I don’t know of one that would. Assuming the vessel is outside state territorial waters, a state’s laws would not apply. Outside of waters controlled by a state or nation, the ship’s flag determines the source of law. So the ship’s home country’s laws apply.”
That doesn’t mean there aren’t risks. While Steffey adds that it’s “entirely possible” an “aggressive” district attorney could “seek to bring charges to someone who travels from their jurisdiction to an offshore abortion provider,” he points out that “there is a very good chance that those charges would be ultimately dismissed as violating the U.S. Constitution. Otherwise, a local DA could prosecute anyone for conduct legal in the state where the conduct occurred — such as consuming cannabis, gambling, etc. — once they returned home.”
That said, Steffey notes that “someone who operates a tender vessel to take patients from shore to ship would be taking a great legal risk, as they’d be operating inside the state.”
Autry isn’t willing to share the details on how exactly patients would be ferried from shore to ship for security purposes, but she says, “What we’re most worried about are the patients. Our plan is that our vessel and the provider and the crew will never touch a restricted state. But obviously, the patients have to get there.”
It is one of the many logistical issues that abortion providers and abortion rights advocates are facing right now. “Abortion providers, policymakers and so many others across the country are dedicated to finding ways to ensure people can get the care they need,” Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, tells Yahoo Life. “But the court’s decision has unleashed legal chaos, and as more and more states ban abortion, we face a host of unknown questions about criminal liability, surveillance and potential prosecution.”
Borchelt adds: “We are all navigating a dangerous, appalling and rapidly evolving landscape to help people get care that should be legal, affordable and available but instead is criminalized.”
Slate had an interview with Dr. Autry a few days before those stories; it didn’t have anything to say about the security and legal stuff, so I hadn’t linked to it before now. That line about “the patients have to get there” is as I’ve said the single biggest point of vulnerability for this clinic and its patients. We’ve seen what Republican and other forced-birth fanatics in Texas are willing and planning to do. I believe they will push the legal envelope on this as far as they can, secure in the knowledge that even if SCOTUS eventually trims them back a bit, the Fifth Circuit will ensure that there won’t be an injunction against whatever crazy laws they pass while the matter is being litigated. I guarantee that SB8, the bounty hunter law, will be fully utilized. It’s going to be super duper ugly and expensive.
I don’t say any of this to be a bummer, but to be a realist. This is what we’re up against, and it will remain that way until we get 1) a federal law that can block at least some of this bullshit; 2) a different (which in any near-term context means “expanded”) SCOTUS that re-reverses itself; or 3) a Texas government that is able to undo all of this legislative harm. Of those three, that last one is guaranteed to not be in the cards in the near term. We can elect Beto and prevent further damage, but until we can also flip both the House and the Senate, we’re stuck with the laws we have. Maybe flipping the State Supreme Court might help as well, but that’s a minimum of two cycles at least. If we’re very lucky, we can get that federal law in 2023. Until then and otherwise, this is where we are.