I doubt that Congress would pass a law categorically protecting abortion rights throughout the country—especially given the possibility of a Senate filibuster (and my sense is that there aren’t enough votes to eliminate the filibuster for such laws). And there’s a good chance that the Court would conclude that such a law exceeds Congress’s enumerated powers.

But Congress does have the power “to regulate commerce … among the several states”; “commerce” has been read to include travel, and the power to regulate means the power to define the regulations for such commerce—which includes the power to free commerce of state regulations. So I think Congress would unquestionably have the power to enact this statute:

Whereas all Americans should have the freedom to travel among the several states within the United States, without undue interference from state or local governments,

and whereas this includes Americans’ freedom to engage in conduct that is lawful in the place to which they travel, whether the conduct relates to food, beverages, other substances, weapons, games of chance or skill, medical procedures, or anything else:

(a) No person in the United States shall be criminally punished for traveling from one State to another State for the purposes of engaging in conduct that is not criminal in that other State.

(b) No person in the United States shall be criminally punished by one State for conduct that is not criminal in the State in which it was engaged.

(c) No person in the United States shall be criminally punished for aiding, encouraging, or making an agreement with another person related to conduct protected by (a) or (b).

(d) Nothing in this section shall authorize a person to bring from one State to another State any goods the possession of which is criminal in that other State.

(e) Nothing in this section shall authorize conduct that is in violation of federal law.

(f) For purposes of this statute, “State” shall include any federal District or Territory.

Any prospect of getting enough Republican votes to defeat a filibuster on this, perhaps because even some Senators who oppose abortion think that states shouldn’t limit their residents’ ability to travel, for whatever reasons those residents may have? Or is this sure to be defeated by Senators who would oppose any interference with states’ rights to ban abortions for their residents?

Note that I just cobbled this together briefly; naturally, please feel free to point to any defects in the wording, but at this point I’m curious whether the overall thrust of this is potentially feasible.



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