Sep 22 2022

Freedom to travel to get an abortion

[Arrows indicate populations of states where abortion is, or is likely to become, illegal, and directions and distances to the nearest states where abortion is legal. Note that some of the routes shown are more likely to be followed than others, since abortion is more or less heavily restricted in some states where it is shown on this map as legal. Diagram by Bloomberg News based on data from the Guttmacher Institute.]

Increasing variations between state laws related to abortion are prompting an increase in the already large numbers of women who travel across state lines to obtain abortions.

For women in many states, bans on abortion are making the right to interstate travel an essential prerequisite to the right to obtain an abortion.

Both anti-abortion vigilantes and state laws criminalizing actions related to abortion, including facilitating abortion-related travel, are prompting women seeking abortions as well as those who support abortion rights to think about how to protect abortion travelers and their supporters against identification, surveillance, stalking, harassment, or legal sanctions.

In this context, the right to anonymous travel has acquired new importance and urgency. If you’ve wondered, “Why would anyone want to travel anonymously?” now you know one of the reasons.  But what’s needed is “right to travel” legislation, not just “privacy” legislation. Current Federal “privacy” bills would do little to protect abortion travelers.

What are the patterns of abortion-related travel? How could state authorities or private vigilantes identify or track the travels of these women — whether they drive or take buses, trains, planes, or automobiles? What, if anything, can women traveling across state lines to obtain abortions do to protect themselves against being identified, tracked, and potentially prosecuted or subjected to retaliation, harassment, or other sanctions?  What could the Federal government do to protect these women’s right to travel, and to do so privately and safely?

As discussed in detail below, the possibilities for technical self-defense against threats to the right to travel are limited. Congress needs to act to include protection for the right to travel — regardless of the purpose for which you  travel — in any abortion rights legislation.

Interstate abortion travel

According to research by the Guttmacher Institute, “In 2020, 9% of abortions in the United States (81,120 out of 930,160) were obtained by people traveling out of their state of residence.” That percentage was already increasing before the Supreme Court ruling overturning Roe v. Wade and the changes in state laws that ruling has prompted.

A network of local, regional, and national organizations provides travel assistance — hosting, travel facilitation, escorts to clinics, and in some cases financial support — to women who need to travel to obtain abortions. These groups include the Haven Coalition in New York City (women have been coming to New York from throughout the eastern US for abortions for decades),  the Midwest Access Coalition (by 2015, 3,000 women a year came to Chicago from other states for abortions, and more recently from 20%  to 30% of all women obtaining abortions in Illinois have been from out of state), and the Brigid Alliance nationwide.

Along with Chicago and New York City, cities in California are destinations for growing numbers of interstate abortion travelers, along with Denver, Minneapolis, Seattle, and Washington, DC. For many decades, Nevada was the jurisdiction of convenience and destination of choice for women who traveled from throughout the US to obtain divorces. Today Nevada is becoming a significant destination for women driving to Reno, mainly from Utah, or flying to Las Vegas from more distant states to obtain abortions.

Some women travel to the nearest clinic in a state where abortion is legal, but others go to more distant states and/or larger cities that may be easier and/or cheaper to travel to despite greater distance, where services are more readily available without a long wait, where there is more local support for women seeking abortions, and/or where larger cities provide greater anonymity.

For example, abortion clinics in Las Cruces, New Mexico, just across the state line from Texas, or even in Albuquerque, don’t have the capacity to handle the “influx of patients from Texas.” Clinics in Kansas are similarly unable to handle the increase in patients from out of state, and are referring women who can afford to fly to clinics in Chicago, on the West Coast, or in the Northeast (most often in New York, New Jersey, DC, or Maryland).

It may be easier to come up with a plausible pretext for a junket to New York, Chicago, Los Angeles, or Las Vegas than to explain a sudden overnight trip to New Mexico or Kansas.

A growing number of women from the US travel to Mexico for abortions.  But abortion rules vary by state within Mexico just as they do within the US, and not all of the Mexican states along the US border allow abortions. Abortion is legal in Canada, but costs are high and there are often waiting lists for appointments, making international travel from the US to Canada  a relatively unattractive option, even from US states along the Canadian border, compared to interstate travel to abortion sanctuary cities and states within the US.

The closest other country to the US is Cuba. Abortion is legal and free or inexpensive in Cuba, and some women from Mexico and other countries in Latin America and the Caribbean travel to Cuba for abortions. But the US heavily restricts and scrutinizes travel between the US and Cuba, largely ruling out Cuba as a destination for abortion travel from the US.

International travel, even between the US, Canada, and Mexico, requires a passport and is generally much more closely surveilled and tracked, as is all travel near US borders, than is other travel within the US away from international borders or coastlines.

Other travel restrictions, such as restrictions on interstate travel by people on probation  or parole, could also affect women seeking to travel across state lines to obtain abortions.

The map of abortion laws by state is constantly changing, but increasingly large blocks of contiguous states where abortion is outlawed or highly restricted are forcing women seeking abortions to travel longer distances to a  smaller number of abortion “sanctuary” destinations.

Identification and tracking of abortion travelers

Cellphones are self-deployed surveillance devices that generally enable the most precise and continuous tracking of individuals in real time or after the fact. Police in states where abortion is illegal could use “geofence” warrants or purchases of location data from smartphone app companies and data brokers to obtain lists of phones that have been in or near clinics or locations where abortion referrals, advice, or travel assistance are available.

Once a person comes under suspicion as a possible abortion traveler or travel facilitator, data from their cellphone could be used to confirm that suspicion and provide evidence of premeditation, complicity, conspiracy, or other elements of legal violations.

The Digital Defense Fund’s Guide to Abortion Privacy includes a guide to smartphone settings to partially mitigate the threat of cellphone-based location tracking.

Unfortunately, there are many other ways that abortion travelers can be identified and tracked, sometimes even in advance, regardless of what means of transportation they use.

Buses:

It’s not the fastest or most comfortable way to travel long distances, but Greyhound has become the long-distance common carrier of last resort  for the undocumented and the unbanked as well as the carrier of choice for those who prefer to travel anonymously.

You can buy a Greyhound ticket for cash, without raising any particular suspicion by doing so. Unlike at an airline ticket counter, a cash purchase of a bus ticket is a routine transaction. You can buy a Greyhound ticket in any name, and anyone can use it, without ID. Greyhound doesn’t take reservations, so there is no way for anyone to anticipate who will be on any particular bus.

In addition, in response to public pressure from us and others, Greyhound has explicitly withdrawn its consent for “unwarranted searches [i.e., searches without a warrant] on its buses or in areas of terminals that are not open to the public — such as company offices or any areas a person needs a ticket to access. Greyhound said it would provide its drivers and bus station employees updated training regarding the new policy, and that it would place stickers on all its buses clearly stating that it does not consent to the searches.”

So you should be free from police harassment, interrogation, or pressure to consent to searches on Greyhound buses, although we’re not sure how fully this policy has been implemented by Greyhound drivers or station managers.

The policies of other bus companies vary.  Megabus says, “While photo identification is not required to board the bus, we recommend that travelers be prepared to produce a photo ID with proof of age to avoid being refused from traveling on our buses due to being underage.” Some other long-distance bus companies including Flix Bus require reservations (with names) and government-issued ID.

Trains:

As a Federal government agency, Amtrak could be a Federally-protected lifeline for abortion travelers. Congress could enact legislation guaranteeing the right to anonymous travel on Amtrak trains, establishing exclusive Federal jurisdiction over onboard conduct, and prohibiting disclosure of Amtrak reservations to state or local agencies.

But Congress has not (yet) done any of that. As it now operates, Amtrak is probably not a good choice for interstate abortion travelers who have a choice of how to travel.

Amtrak’s conditions of carriage require all passengers to carry and show ID on demand. Amtrak staff — commendably — rarely seem to enforce this rule. But you can’t count on when they might do so, especially if pressured to do so by local police.

Amtrak trains, especially on long-distance routes,  are systematically targeted for “sweeps” by local police at some intermediate stops, in the hope of scoring assets that can be seized and forfeited from drug suspects. The same tactics could easily be adapted by local police to target passengers who “fit the profile” of interstate abortion travelers.

We’ve been trying to find out more about Amtrak’s information-sharing with law enforcement agencies. But Amtrak has released no information at all in response to any of our pending Freedom Of Information Act requests for more than three years.

Planes:

Some  women will have little alternative to air travel to get to a state where they can get an abortion.  They may not be able to take the time away from their job and/or family for a multi-day road trip, or the same complications of a difficult pregnancy that have led them to seek an abortion may make such a lengthy road trip inadvisable.

Police and prosecutors in anti-abortion jurisdictions could obtain information from airline reservations through search warrants, subpoenas, or other court orders directed to airlines, but will probably find it easier to access reservations through the computerized reservation systems or global distribution systems (CRSs or GDSs) that host most reservations as outsourced cloud services providers.

There are fewer CRS/GDS companies than there are US airlines. One of the dominant three CRS/GDS companies in the US and worldwide, Sabre, is based in Texas, which would make it especially hard for it to resist legal demands from Texas courts.

Court orders to CRS/GDS companies demanding their assistance in enforcing state laws against abortion could, and probably would, contain gag orders prohibiting the CRS/GDS companies from disclosing those orders to their airline customers or to the travelers whose data is handed over to state police. There are change logs in PNRs, but there are no access logs. So airlines are unlikely to know whether Sabre or other CRS/GDS companies have disclosed reservations for passengers on their flights to police or prosecutors in Texas or other states.

So far as we can tell, no airline or CRS/GDS company has ever published a “transparency report” disclosing how many government requests for personal information it received, on what basis, or how it responded.  Nor, so far as we can tell, has an airline or CRS/GDS company ever gone to court to oppose a government request for reservation data.

Law enforcement agencies also have well-established networks of informers in the travel industry, including at airports, train stations, and bus stations. These informers are paid to tip off police (often including both Federal law enforcement agencies and their state and local partners in “fusion centers” and other joint ventures) to suspected drug couriers, and to provide copies of suspects’ reservations to the police. Assets seized from travelers fingered by these informers are a major source of revenue for some police agencies.

The same or similar networks of informers could be used against abortion travelers. And seizure and forfeiture of assets associated with abortion travel, from vehicles to real estate used by abortion counselors or facilitators, could be a major anti-abortion legal tactic. Supporters of abortion rights should join the movement against asset forfeiture.

The lack of even the most rudimentary data security makes it easy for anti-abortion vigilantes, as well as police, to get access to airline reservations.

Spot someone in an airport who looks like they might be an abortion traveler? Take a cellphone photo of her boarding pass or baggage tag, enlarge it to read her last name and “record locator”, and you can retrieve  her reservations — even change or cancel them! — without a password, through an airline or CRS/GDS check-in, PNR viewing, and remote stalking website. Domestic abusers — the most common real-world threat to travelers’ privacy and safety — are already able to exploit this attack methodology, undetected.

This vulnerability has been reported, documented, and publicly demonstrated for 20 years, but CRS/GDS companies and airlines have chosen not to fix it.

No Federal law protects the privacy or security of PNR data. CRS/GDS companies and the PNR data they host have fallen through a (longstanding and well-known) gap of jurisdictional uncertainty between the Department of Transportation and the Federal Trade Commission, neither of which has exercised meaningful oversight over them.

Whether they are obtained from airlines or from CRS/GDS companies, Passenger Name Records (PNRs) for airline flights are likely to be most useful to police and prosecutors in anti-abortion jurisdictions in identifying credit cards used to pay for abortion travel and in linking reservations to organizations, networks, and individuals that facilitate their travel.

You can buy a plane ticket with cash, or someone else can buy a ticket for you with cash. That will help protect whoever else might have helped pay for your ticket. But that will get you and your reservations more scrutiny, not less. Airline passengers using tickets paid for with cash are already subject to heightened suspicion.

Just as young men traveling alone on tickets purchased at the last minute with cash between certain origin and destination airports are automatically suspected of being drug dealers or couriers, young women traveling alone on tickets purchased at the last minute with cash, at least on certain routes, could automatically be suspected of traveling to obtain abortions.

It’s important to keep in mind that there’s an overabundance of bad case law already on the books condoning this sort of demographic and/or behavior profiling — in the name of the “war on drugs” — as the basis for suspicion, detention, interrogation, and probable cause for the issuance of search warrants. In jurisdictions where abortion is illegal, all of this law on people and activities that “fit the profile” of violations of anti-drug laws will be directly applicable to those who “fit the profile” of violators of anti-abortion laws.

Even when an airline ticket is purchased with cash, the ticket and reservation still have to show a name, and the passenger has to provide some evidence matching that name.

In practice, you can fly in someone else’s name, using their ID, as long as your appearance is sufficiently similar. But that could put you both at risk of other charges if detected.

You aren’t required by law to show ID to fly, and in Gilmore v. Gonzales, the TSA claimed to the 9th Circuit Court of Appeals (in secret evidence that Mr. Gilmore had no opportunity  to see, cross-examine, or rebut) that all that is required of passengers without ID is that they submit to a more intrusive search. That should be possible without providing any evidence as to your name or identity.

In practice, however, the TSA illegally demands more from air travelers without ID.

All airline tickets are required to show a name, and all airline reservations are required to include a name, gender, and date of birth, which the airline must send to the TSA before the flight. Air travelers without ID are  required to complete and sign an illegal form attesting to their identity, and successfully complete a bizarre round of “20 questions” based on the information about them in the records of a commercial data broker, the Accurint division of Lexus-Nexus.

You can fly in someone else’s name only if you are willing to sign the TSA Form 415 in their name (potentially risking prosecution for making a false statement to a Federal agent) and can provide answers to the TSA’s questions that match the data in Accurint’s records about that person. That’s not a feasible or attractive option in most cases.

Automobiles:

For financial and other reasons, most abortion travel is likely to be by private car.

Motor vehicles can be tracked most easily and with the fewest  restrictions on access to the data  through automated license plate readers (ALPRs). ALPRs are sufficiently ubiquitous to be effectively unavoidable, and aggregated ALPR data is readily available for purchase, without needing a warrant or court order, from commercial data brokers. Many state and local law enforcement agencies, like their Federal counterparts, already have contracts with these companies, and we can take it for granted that they will use ALPR data to identify and investigate violations of anti-abortion laws. Texas police or prosecutors, for example, could buy logs of all Texas license plates on vehicles spotted in the vicinity of, or entering parking lots or garages near, abortion clinic in neighboring states.

In addition, late-model “connected” motor vehicles contain always-on telemetry systems, often poorly disclosed, that send data, possibly including location information from an embedded GPS receiver and/or cell tower locations, to the manufacturer by means of an embedded wireless data transceiver. Yes, there’s a good chance your new car has its own hidden data-only SIM card and a manufacturer subscription to a cellular data network!

It’s generally unclear to vehicle owners which cellular network the telemetry system in their vehicle connects to, how frequently their vehicle “phones home” to the manufacturer, or what data is sent or retained by the manufacturer and/or the network operator.

Those who want to travel by car without having their car itself report their movements will have to make use of increasingly old vehicles that predate these telemetry systems.

In theory it should be possible for vehicle owners in at least some states to find out what data their car has collected and transmitted and with whom that data has been shared, and to opt out of some of this data collection and/or demand that some data be expunged.

In practice, we don’t know anyone who has gotten a complete dump of their vehicle’s telemetry data, or who has succeeded in opting out of vehicle telemetry or having previously-transmitted vehicle telemetry data expunged. (If you have, please let us know.)

Police or prosecutors in anti-abortion jurisdictions could obtain vehicle telemetry data after the fact through search warrants or subpoenas to vehicle manufacturers and/or wireless network operators. They could also apply for writs directing those companies to provide real-time reporting of vehicle telemetry data matching specified patterns, as has been done with companies that host airline reservations.

It’s hard to assess or mitigate this threat without more information about what data is being collected and about vehicle manufacturers’ practices for making this information available in response to court orders or “voluntarily” under the “third party doctrine”.

If possible, which it may not be, people traveling for abortions should use older vehicles without embedded telemetry systems. Anyone with a newer vehicle who wants to keep their movements private should opt their “connected” vehicle out of manufacturer telemetry, to the maximum extent possible, and disable the telemetry system if that’s possible (removing the SIM card would help, if you can get at it, although newer systems might use an “e-SIM” and telemetry data might still be collected and stored within the vehicle’s “black box”) and if that won’t void your warranty or vehicle insurance.

Surveillance self-defense for abortion travelers?

As the discussion above suggests, there’s a limited amount that abortion travelers or those trying to help them can do to protect themselves against identification and tracking. Protection for abortion travelers will depend more on the law than on self-defense.

There are a few basic things you can do: Wear a mask, a floppy hat or scarf that covers as much of your hair and face as possible,  and clothes that cover any tattoos. Don’t talk to police or strangers. Don’t carry ID if you don’t need it. Exercise your right to remain silent.

But as a counter-surveillance amateur, you shouldn’t expect to outwit professional police spies. State and local police and/or anti-abortion vigilantes might be watching bus or train stations, airports, highway rest areas, or drivers or passengers on certain routes for possible abortion travelers. Station agents might be police informers. Any “security” or surveillance camera could be hooked up to an automated facial recognition system.

Federal legislation to protect the right to travel

Several legal commenters have noted the lack of explicit Constitutional or federal statutory protection for the right to travel, and some have  suggested that, “Congress could enact legislation that protects the right to travel for abortion care.”

Congress could, and Congress should.

Legislation like this would be squarely in the tradition of Federal civil rights legislation to protect the right to interstate travel against state and local interference.

Enforcement of Federal laws and court decisions protecting the right to interstate travel by common carrier against interference by state and local police and transportation companies under color of state and local “Jim Crow” laws and company policies was the goal of the Freedom Rides from the 1940s through the 1960s.

Some people’s first reaction to these scenarios may be to propose legislation to protect the right to interstate travel only when that travel is for the purpose of obtaining an abortion. But enacting new laws that treat travel differently depending on the purposes for which people travel would only make the problem worse. If travel is truly a right, then whether travel is permitted or prohibited shouldn’t depend on its purpose.

Any new Federal abortion rights legislation should incorporate the provisions of the Freedom To Travel Act, which would protect the right to travel by common carrier, regardless of its purpose, against interference by either government or private entities.

Additional provisions that should be considered in Federal legislation include:

  • Prohibiting Amtrak from imposing an ID requirement to travel by train within the US.
  • Explicitly protecting the right to fly within the US anonymously and without ID.
  • Repealing the REAL-ID Act, which the TSA and DHS keep trying to misinterpret as the basis for imposing a new requirement for ID to fly.
  • Requiring passwords and logs for access to airline reservation (PNR) data.
  • Prohibiting the use of automated license plate readers.
  • Prohibiting automobile manufacturers from requiring vehicle telemetry.

None of these issues are new. This legislation was needed long before the recent changes in abortion law.  But the implications for abortion travelers of the general lack of protection for the right to travel have made visible why Congress needs to act on this issue.

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