In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)

 

If, as seems likely, the Supreme Court overrules Roe v. Wade, some conservative states may not only restrict abortions within their borders, but also try to bar residents from traveling out of state to get them. If that happens, there is a good chance courts will declare such laws to be unconstitutional. There are at least three strong constitutional arguments against them.  A federal law banning interstate travel for the purpose of getting an abortion would likely fare better in Court, however.

The most obvious rationale for challenging a state-law abortion travel ban is the Dormant Commerce Clause, which forbids state regulations that specifically restrict interstate commerce or discriminate against it. I am not an expert on the ins and outs of the Supreme Court’s complicated jurisprudence in this field. But it seems to me that a ban on traveling out of state to engage in a specific type of economic transaction is a pretty obvious violation of the DCC.

To be sure, states can ban people from bringing in out-of-state products that are banned within the state. For example, a state where marijuana is illegal can ban its importation from elsewhere. But no such importation of contraband occurs when the state government bars residents from getting abortions that are entirely administered outside their territory. Merely being a woman who is not pregnant is, presumably, not going to be made illegal (and such an absurd law would be unconstitutional, as well).

Barring interstate travel to get an abortion is more like a state criminalizing residents who travel to use marijuana in another state, rather than those who buy it in the latter location and then bring it back home. If the Dormant Commerce Clause forbids state laws barring from  residents from traveling to use marijuana in another state (or alcohol or any other product that might be forbidden in their home state), then the same goes for travel for the purpose of getting an abortion.

Some conservative jurists, such as Supreme Court Justices Clarence Thomas and the late Antonin Scalia, have argued that the Dormant Commerce Clause doctrine lacks originalist support and should be abolished. If they get their way, the Clause would not constrain state abortion travel bans – or anything else. But I don’t think there is anything close to a majority on the Supreme Court in favor of that position.

A second potential line of attack on state abortion travel bans is that states lack the authority to regulate activity that takes place beyond their borders. This is often treated as a violation of the Due Process Clause of the Fourteenth Amendment, but can also be seen as an inherent limitation on state sovereignty. That sovereignty is territorial. State A only has jurisdiction over activity that takes place on its own territory, not that of  States B and C. To be sure, things become more complicated if activities undertaken in B have a direct impact on the territory of A. But, in this case, the an abortion conducted in B does not in fact threaten any legal rights of anyone located in A at the time.

If state sovereignty is broad enough to criminalize almost any activity residents engage in beyond its borders, then the state could potentially criminalize travel for a vast range of purposes. It could obviously, for example, criminalize travel for the purpose of consuming a product banned within its own territory. Thus, a state that bans marijuana could forbid residents from traveling to use it in another state. If a state bans a type of gun, it could forbid residents from using that type of weapon elsewhere. Even if the activity in question were not illegal in the would-be travelers’ home, perhaps the state could ban it nonetheless. For example, perhaps Massachusetts could ban residents from going to New Hampshire to buy products on which the latter (which has no sales tax) taxes at a lower rate than Massachusetts does.

Finally, state abortion travel bans are open to challenge because they violate the constitutional right to travel. The Supreme Court has recognized a constitutional right to travel between states since before the enactment of the Fourteenth Amendment (the Court ruled that it was a background structural element of the Constitution), and more recent precedent has also held that there is a right to travel under either the Due Process Clause or the Privileges or Immunities Clause of the latter amendment.

The Supreme Court’s right to travel precedents focus on categorical bans or restrictions on entry and exist, such as exit taxes, constraints on the entry of indigent people, and – most controversially – limitations on new residents’ eligibility for welfare benefits. These cases don’t directly consider limitations on the reasons why people travel, such as – in this case – getting an out-of-state abortion.  But if the right to travel doesn’t bar states from penalizing people who travel for the purposes of getting an abortion, states could potentially severely undermine the right by punishing people for all sorts of other travel. The same logic would apply to travel for the purposes of consuming goods and services the state government disapproves of (marijuana, alcohol, medical treatment of various kinds), working for entities the state government objects to (e.g. – red states might disapprove of travel to provide services to blue state governments and vice versa), and so on.

Thus, I think a right to travel worthy of the name should bar states from banning travel for the purposes of getting an abortion out of state – or consuming any other good or service there, so long as the product in question isn’t brought back to the resident’s home state.

As in the case of the Dormant Commerce Clause, there is a distinction here between traveling for purposes of consuming marijuana in another state, and bringing the marijuana back home. Abortion, by definition, is a service that is entirely “consumed” on site, and therefore cannot be brought back home in the way drugs or alcohol can.

Admittedly, there are few, if any, precedents on the books considering the constitutionality of anything closely similar to a state abortion travel ban. But the case against it seems strong on the basic logic of all three of the above theories. Allowing states to impose abortion travel bans would be hard to do without also giving states broad power to restrict travel by residents for a wide range of other purposes. That reality should incline courts towards striking down these laws.

I recognize, however, that there is considerable uncertainty about what courts will actually do here. In an important new Columbia Law Review article, legal scholars David S. Cohen, Greer Donley, and Rachel Rebouche argue that the uncertainty is even greater than I suggest above. I highly recommend their article to anyone interested in these issues.

If I differ with them, it is primarily because of the point that upholding abortion travel bans would severely undermine all three of the above constraints state extraterritorial jurisdiction, even in cases far removed from abortion. But it is possible that clever lawyers will come up with new ways to distinguish abortion travel bans from other extraterritorial state regulations.

Potentially, the federal government could also restrict interstate travel for purposes of getting an abortion. For example, it could pass a law barring medical facilities from performing abortions for residents of states where the abortion in question would be illegal.

If that happened, the resulting regulations would be far less open to challenge than state laws would. The Dormant Commerce Clause obviously doesn’t constrain Congress. It could easily regulate all or most interstate abortion transactions using its power to regulate interstate commerce. Similarly, there are no territorial limits on the federal government’s jurisdiction within the United States.

Congressional regulations could perhaps still be constrained by the right to travel. But even that is, I think, less likely to be applied against Congress by courts than against the states.

However, there are serious political obstacles to enacting federal abortion restrictions, even if the Republicans regain control of Congress. They include – among other things – the opposition of moderate and pro-choice GOP members of Congress, such as Senators Susan Collins and Lisa Murkowski, and the need to abolish or restrict the filibuster (which GOP Senate leader Mitch McConnell has vowed never to do, including for purposes of legislating on abortion). Of course, McConnell could potentially break his pledge, or a future Republican leader might take a different view. But McConnell did retain the filibuster for policy throughout his time as Senate Majority leader under Trump, even when getting rid of it might have helped the GOP achieve major legislative goals, such as repealing Obamacare.

Legal issues aside, abortion travel bans might be very difficult to enforce, whether enacted by state governments or by Congress. Enforcing authorities are likely to face many of the same obstacles as they do in trying to eliminate other black markets. Consider, for example, the history of the War on Drugs, which has noticeably failed to suppress the illegal drug trade, or even come close to doing so.

In addition, blue states have begun to adopt laws denying cooperation to other states seeking to enforce abortion travel bans, and more such laws are likely to be enacted in the future. They would likely react similarly to a federal ban, which they would have a right to do under the Supreme Court’s anti-commandeering precedents, which bar the federal government from requiring state and local officials to help enforce federal law.

The anti-commandeering doctrine has protected conservative states that refuse to help enforce federal gun regulations, and liberal immigration “sanctuaries.” It should work the same way for potential abortion “sanctuaries.”

Without cooperation from destination states, abortion travel bans will be even more difficult to enforce. That would limit their effectiveness even if courts ultimately uphold them.

That said, such bans could potentially inhibit at least some interstate abortion travel. And, even if their effectiveness turns out to be severely limited, their enactment would raise important constitutional issues. If upheld by courts, they would open the door to a wide range of other state controls over interstate travel. Hopefully, that troubling scenario will be avoided.

 

 

 



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