This document is for informational purposes only, is not intended as legal advice, and does not substitute for consulting with a lawyer about your particular facts and circumstances. This document does not constitute a solicitation, and your use of this document does not create any attorney-client relationship between you and Lowenstein Sandler. We do not represent that the content of this document is correct, complete, or up-to-date, or that it reflects current legal developments.
INDIVIDUAL RISK ASSESSMENTS
Many of the responses below are intended to identify circumstances in which you should consider seeking legal advice relating to assistance you may be providing to out-of-state patients obtaining legal abortions in New Jersey. In the aftermath of the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, a significant number of states have enacted, or will soon enact, laws that severely restrict or ban abortion, which will lead people in those states to travel to states like New Jersey where they can get a legal abortion. Those who help such out-of-state patients obtain care in New Jersey can become targets of opponents of legal abortion in other states. This means that there is some risk involved. The risk may be low, and you are lucky to be in New Jersey, where the state has taken meaningful steps to protect you, as you’ll see below. But the risk still exists. Part of the reason to contact a lawyer is for advice on how to mitigate the risk. The extent of the risk will depend on a number of factors, and these FAQs do not attempt to assess the risk based on your individual circumstances. Our goal is not to deter you, but to inform you and help you identify when an individual risk assessment is especially important.
SAFE INTERNET SEARCHES AND PHONE CALLS
- If I’m researching abortion online, are there ways to keep my searches private?
Before you read these FAQs, you might want to educate yourself on how to keep your data more private.
Good resources for understanding steps you can take to minimize your digital footprint and improve your privacy and security are available at the Digital Defense Fund Guide to Abortion Privacy and the Electronic Frontier Foundation Security and Privacy Tips for People Seeking an Abortion. The Repro Legal Helpline also provides information on digital safety.
The safest course is not to communicate online, by messaging app, or by text about anything you want to keep private.
- Are there ways to keep my phone calls private?
Phone calls can be made more secure by using “burner” phones, calling from phones that are not tied to your identity, using *67 to block your caller ID, or using services like Google Voice or other apps that permit anonymous phone calls.
BASIC RIGHTS TO ABORTION IN NEW JERSEY
- Is abortion still legal in New Jersey?
Yes, abortion is still legal in New Jersey. Abortion is an independent and fundamental right protected by both the New Jersey Constitution and state legislation. The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization does not diminish the right to abortion in New Jersey.
- Does New Jersey have abortion restrictions (waiting period, gestational limit, parental involvement, etc.)?
New Jersey places very few legal restrictions on abortion. There are no waiting period or parental involvement laws. Providers offer care based on each patient’s specific circumstances, and if they are unable to provide care, they will usually refer the patient for other assistance.
OTHER STATE LAWS
- How can I find out about the law in the state where the person I am helping lives?
If you want to learn what the law is in a particular state, you can check these resources:
State laws are changing rapidly. If you want to know more about the legal risks in a particular state, you can also contact the Repro Legal Helpline.
LIABILITY IN GENERAL
- What threats are arising against those who help someone from a state that bans or restricts abortion (a “ban state”) obtain an abortion by providing them with financial assistance, housing, transportation, or other resources (i.e., being a “helper”)? Can I be prosecuted or sued under the laws of a ban state?
You’re okay under the laws of New Jersey.
Abortions are legal in New Jersey, and you cannot be prosecuted or sued under the laws of New Jersey for helping someone from a ban state obtain a legal abortion in New Jersey. However, New Jersey law cannot protect you from being sued or prosecuted under the laws of another state.
You face potential risks under the criminal abortion laws of ban states.
You may face legal risks if you help someone from a state where abortion is illegal travel to New Jersey to obtain abortion care.
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. For example, people can travel to Las Vegas to gamble even if gambling is illegal in their home state, and their home state should not be able to punish them or anyone who facilitated their gambling.
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.
As of the date of these FAQs, no state has passed a law that explicitly makes it a crime to help an abortion patient from a ban state obtain an abortion in a state where it is legal (an “access state”).
You face potential risks from private people who might sue you.
Some states have already passed laws that enable private citizens to sue people who help others obtain abortions, and other states may follow. Such laws should not apply to conduct that occurs entirely outside the ban state, but we cannot be certain how courts will interpret them.
You might want to talk to a lawyer.
You can call the number below to get advice from a lawyer about the risk of assisting individuals from ban states obtain an abortion in New Jersey. You can also try the Repro Legal Helpline.
If the out-of-state abortion patient you are helping is a minor, additional considerations arise. See Q.7.
New Jersey has passed some laws intended to protect people who facilitate access to abortion care in New Jersey from out-of-state consequences, but these laws cannot eliminate all risk. See Qs.10, 12.
- Is there additional legal risk associated with helping a minor from a ban state travel to New Jersey for an abortion?
Yes. Under New Jersey law, minors have access to legal and confidential abortion so long as they are able to provide informed consent, meaning they can understand the risks and benefits of the abortion and its alternatives. New Jersey law does not require minors to notify or seek consent from a parent or guardian.
Assistance may include contributing to the cost of the abortion or related expenses, transporting the minor, providing housing during the trip, or otherwise helping the minor travel out of state for an abortion.
Because minors may, as a legal matter, need their parent’s or guardian’s permission to travel, a person (even possibly a parent or guardian) could face serious risks for helping a minor travel for an abortion in another state. It is critical to consult with a lawyer, especially if you are helping a minor who is traveling from a ban state to New Jersey for an abortion without parental knowledge or permission.
You can call the number below or try the Repro Legal Helpline to get advice from a lawyer about the risk of assisting individuals from ban states obtain an abortion in New Jersey.
- Can I be criminally liable or sued under the laws of another state if I donate to an abortion fund or other organization that is helping people travel to access states?
Maybe. New Jersey law does not prohibit donations to an abortion fund or to organizations assisting individuals with traveling to access states for an abortion. As of the date of these FAQs, we are not aware of any law that makes it a crime to provide financial or other support to someone seeking a lawful abortion in an access state. There is also significant constitutional protection for expressing your support through donations to abortion funds and other organizations that offer assistance.
Prosecutors in ban states might nevertheless try charging donors, depending on the laws of the particular state where the donor sends the money and how the money is used. Similarly, private citizens might sue donors for helping fund or support abortions for patients from ban states.
While the full extent of the risks is unknown, making donations to and working with established and trusted organizations that are assisting people in finding legal reproductive health care services probably poses less risk than contributing to a public GoFundMe page. For a non-exhaustive list of trusted organizations, see Q.16.
- Can I get in trouble if I post on social media about helping people in ban states get abortions?
Yes. As explained above, prosecutors or others in ban states could try to take action against those who help someone from a ban state obtain an abortion. See Q.6. Any information you provide on social media or in any other public forum is not subject to any privacy protections and may be used against you or others in criminal or civil investigations or proceedings.
- Will out-of-state prosecutors or individuals who sue me be able to get my phone records, emails, bank statements, or other information about me?
Maybe. A recently enacted state law prohibits New Jersey courts and law enforcement officers from cooperating with investigations by out-of-state actors into reproductive health services that are legal in New Jersey. New Jersey courts have not yet assessed this new law, and courts and prosecutors may not always be able to tell when an out-of-state investigation relates to a legal abortion or other reproductive health care. Still, the law prohibits public employees and entities from assisting in cross-state investigations of reproductive health services (including abortions) that are legal in New Jersey. While this law provides protection, it cannot guarantee the confidentiality of information.
Out-of-state prosecutors and private litigants often use subpoenas or court orders to get information that is not publicly available on social media or elsewhere. Such demands may seek emails, bank information, and phone records regarding any assistance (financial or otherwise) provided to an out-of-state individual who obtained an abortion in New Jersey. The subpoenas may go, for example, to individuals, health providers or insurers, financial institutions, a search engine, an app, or email/phone service providers that store such records in New Jersey.
If the recipient of the subpoena is a health provider, health insurer/plan, or processor of health information for a provider or insurer/plan, another new law prohibits it from disclosing information about reproductive health services unless it has the patient’s written consent. All other individuals or entities who receive a subpoena are permitted to disclose such information, but those located in New Jersey cannot be forced to do so.
Only a New Jersey court can force a person or entity in New Jersey to respond to a subpoena. Because the law now prohibits New Jersey courts from assisting in any out-of-state investigation into an abortion that is legal in New Jersey, the subpoena probably cannot be enforced in New Jersey.
If your financial or location information is stored outside New Jersey, such as in credit card records or E-ZPass records associated with driving out of state, those records may be subject to disclosure in other states based on those states’ laws.
- What happens if a ban state issues a warrant for my arrest? What happens if a ban state files criminal charges against me? Can I travel to that state?
If a ban state issues a warrant for your arrest or files criminal charges against you, and you are physically in that state, there is a significant risk that you will be arrested and detained. Even a short trip (e.g., a layover at an airport) can give the ban state an opportunity to enforce its criminal laws against you.
If you are planning to travel to a ban state that is investigating you or has initiated criminal proceedings against you, it is very important that you consult with a lawyer before entering the state. You can call the number below. The Repro Legal Helpline may also be able to connect you with a lawyer who has knowledge of the criminal law in the state you plan to visit.
- Am I safe from extradition from NJ to the state that issued an arrest warrant or filed criminal charges against me?
It depends. New Jersey law protects individuals who face out-of-state consequences for engaging in activity that is lawful in New Jersey, but New Jersey law cannot eliminate all risk.
The police in a ban state cannot cross state lines to arrest you in a different state. Instead, the ban state must use a process called extradition to have you taken into custody in a different state and then transferred to their state to face the charges against you.
New Jersey recently enacted a law that protects people from extradition in some circumstances. Under the law, New Jersey will not extradite you to a state that has charged you with a crime that involves helping someone obtain reproductive health services that are legal in New Jersey. New Jersey also will not extradite you for helping someone obtain a legal abortion in another state, if that abortion would also have been legal in New Jersey. But the law has not yet been tested in court.
The law also has an exception. New Jersey will extradite a person who was in the state making the extradition demand at the time of the alleged crime and fled that state. This means that if a ban state charges you with a crime based on your alleged conduct in that state, and that state asks New Jersey to send you back there for criminal prosecution, New Jersey law will not prevent your extradition. If there is a demand for your extradition, you should immediately consult a lawyer.
To the extent that you are transporting minors from their home states to New Jersey for abortions or providing other related support to minors, you should consult with counsel regarding the risk of extradition. See Q.7.
You can contact the Repro Legal Defense Fund if you have been charged with an abortion-related crime. If you are a New Jersey resident, you can also call the number below.
- What happens if a ban state issues a warrant for my arrest and I travel to a different state? Could I be extradited to the ban state?
Maybe. The New Jersey extradition statute can only protect you from being extradited from New Jersey. If you travel to another state—even a state that protects the right to abortion—and the ban state that issued a warrant against you learns of your presence in the other state and demands extradition, you could be detained and extradited. Whether the state you are visiting will extradite you will depend on the laws of that state. If an active warrant or criminal charges are pending against you in another state, you should consult with legal counsel to assess your risk before traveling out of state. The Repro Legal Helpline may be able to connect you with a lawyer who has knowledge of the criminal law in the state(s) you plan to visit.
- If private citizens sue me, can they sue me in their state? Can they sue me in NJ?
A private citizen (a “plaintiff”) who brings a lawsuit against someone (a “defendant”) who lives in another state may have a choice of where to file. Federal or state law will determine where the plaintiff is allowed to file. If the plaintiff files the case in a ban state, you might have an opportunity to ask the court to move the proceedings to your state.
No matter where the case is filed, the court will decide whether there has been a violation of the law the plaintiff claims the defendant violated. This will normally be the law of a ban state. New Jersey law provides no basis for suing someone for assisting a patient in obtaining a legal abortion in the state.
While there is no law that prevents a party from filing a lawsuit against you, there are court rules in most states that allow you to pursue attorney’s fees and sanctions against parties who file frivolous lawsuits against you.
- Do I have to appear and answer such a suit? What happens if I travel to the state where the lawsuit was filed?
If you are sued for helping patients from ban states get legal abortions in New Jersey, you should consult with counsel. You should not ignore a lawsuit filed against you. There may be grounds for dismissal of the lawsuit, and a lawyer can advise you of your best course of action.
If you travel to a ban state where a civil lawsuit was filed against you, there is a risk that the plaintiff could serve you with process in that state and the court would then have the authority to proceed with the lawsuit against you in that state. Therefore, it may be advisable to avoid travel to ban states under those circumstances. Again, you should consult with counsel if a lawsuit has been filed against you.
HOW TO HELP
- How can I support people seeking abortions in New Jersey?
If you want to help people living in ban states obtain reproductive health services in New Jersey or other access states, we encourage you to work with established and trusted organizations.
Below are non-exhaustive lists of resources that might be helpful.
You can donate to the following abortion funds that help pay for the costs associated with getting an abortion:
New Jersey Abortion Access Fund (NJAAF)
You can donate directly to abortion providers in New Jersey to help them meet the increased demand for their services and assist patients with access.
New Jersey has many Planned Parenthood locations
Cherry Hill Women’s Center accepts donations:
Keep Our Clinics channels funds to independent providers (note that this is a nationwide organization)
You can donate to funds that help people with the logistics of obtaining an abortion:
You can volunteer with an abortion fund or clinic to support their work and can serve as a clinic escort. (Clinic escorts help patients get to the clinic door with as little interference and harassment from protesters and picketers as possible.)
Volunteer as a clinic escort with Cherry Hill Women’s Center: http://thewomenscenters.com/volunteer/
If you are a lawyer looking to help, you can check in with these organizations:
If you have legal questions about assisting people who are seeking abortions in New Jersey, you can call 862-926-6565 and let us know how to reach you for a callback. This is not an offer of legal representation.Click here to view the full article