The news was grim during Friday’s Supreme Court ruling in Dobbs v. Jackson, and I’m not here to tell you otherwise. But the notice itself contains a few glimmers to analyze. One is from Justice Brett Kavanaugh in a concurring opinion: “For example, can a state prohibit a resident of that state from traveling to another state to have an abortion? In my opinion, the answer is no, based on the constitutional right to travel interstate.
The right to travel has not been extensively outlined in case law. Regarding international travel, it received particular attention during COVID-19, when some Americans were forced to self-quarantine out of the country until they could produce negative COVID tests; and also when, early in the pandemic, some governors sought to ban interstate travel from states deemed “COVID hotspots” — an exercise in futility that was quickly abandoned. Virtually no case law has emerged.
More generally, the right of Americans to travel interstate within the United States has never been substantially challenged or limited in court. In 1941, the Supreme Court declared unconstitutional California’s restriction on the migration of “Okies” – whose woes are documented in John Steinbeck’s classic, “The Grapes of Wrath.” Judge William O. Douglas called the “right of free movement” a “right of national citizenship” and the rights of migrants were respected under the trade clause.
The privileges and immunities clause protects the rights of US citizens, who are each also citizens of one state, from discriminatory treatment under the law of a different state. In a 1985 case, the Supreme Court held that the privileges and immunities clause prohibited discrimination against a non-resident unless (i) there is a substantial reason justifying the difference in treatment; and (ii) the discrimination against non-residents has a substantial connection with the state purpose. In deciding whether the discrimination has a close or substantial connection to the state purpose, the court considered the availability of less restrictive means.
The Saenz v. Roe’s 1999 elaborates: Justice John Paul Stevens asserted that the right contains three elements: (1) the right to enter and leave another state; (2) the right to be treated as a welcome visitor while temporarily present in another state; and (3) the right to be treated like other citizens of that state for travelers who choose to become permanent residents.
A right to travel has also been theorized based on the dormant Commerce Clause, which prevents states from discriminating against or unduly burdening interstate commerce.
The baseline, then, is that freedom of movement within and between states is constitutionally protected.
Twenty-six states are likely to ban abortions now that Dobbs has been decided. Thirteen enacted trigger laws that would ban abortion as soon as Roe was overthrown; one state, Oklahoma, banned abortion in May, before the Dobbs ruling. For women and girls seeking this health care, options are limited: self-administered abortion or medical abortion (which are criminalized under some of the new laws) or travel to a state where abortion is still legal. .
In 2017, an average of 8% of patients left their state of residence for abortion care, according to a study published in The Lancet. But dig deeper and data shows that in 12 states, more than a quarter of patients traveled out of state. In four states — Mississippi, Missouri, South Carolina and Wyoming — more than half of patients left their state, the study found. The new restrictions are likely to have a more serious impact on those who already suffer from insufficient access to health care, including low-income people; Black, Latino and Asian patients; young people; and LGBTQ people. But states with welcome policies, such as Colorado, Connecticut, Maine, Massachusetts, Minnesota, New Jersey and New York, are likely to receive unprecedented numbers of visitors seeking care. A number of companies announced that they would help employees seek abortion care, sparking a dispute with states, including Texas, which threatened to ban them from doing business in the state.
Now, some states are already acting to interfere with the right to travel out of state for reproductive services — both to shut it down as an option for abortion seekers and to protect it.
In Missouri, a bill introduced in December that was modeled after SB 8, the Texas bounty law, would allow for a lawsuit not only for someone who helps another get an abortion in Missouri, but also for who helps another to get to a state. where abortion is legal. The bill rests on questionable criminal law foundations – it posits that a criminal conspiracy can be based on conduct that is legal in the state where it occurs, not the state where the traveler resides, extending the idea of a long-armed jurisdiction.
At the other end of the spectrum, citing the Massachusetts Constitution’s reproductive rights protections, Governor Charlie Baker signed an executive order to protect Massachusetts-based health care providers from liability for providing services to out-of-state abortion seekers, prohibiting extraditions and protecting records from disclosure to states with criminal penalties against abortion seekers, allies, and service providers.
What extraterritorial jurisdiction the courts will maintain after Dobbs remains to be determined. It is a sad exercise to return to the pre-Roe and Roe-adjacent cases, but we must return to Bigelow v. Virginia, where Judge Harry Blackmun, writing for the majority of the court, overturned the 1971 Virginia conviction of a Charlottesville editor whose newspaper advertised reproductive health services in New York City. In this 1975 case, the Supreme Court stated that a “state does not acquire power or control over the internal affairs of another state merely because the welfare and health of its own citizens may be affected when traveling to that State”.
Even though home states have extraterritorial powers over their citizens, they do not have the power to prohibit them from engaging in activities in the receiving states that are permitted for citizens of the receiving states. reception. Professor Seth Kreimer has advanced this view, relying in part on Bigelow. Professor Lea Brilmayer argues that when it comes to issues on which there are sharp moral disagreements between states, such as abortion and the right to die, the structure of the federal system clearly dictates the priority of the territorial state, and this priority usually invalidates residency. the claim of the state to regulate.
To do otherwise, she argues, would allow the preemption of one state’s law by another, a horizontal preemption not recognized in federalism.
It is quite clear that the issue of extraterritorial prosecutions, along with many other issues, such as abortion by mail, the use of personal data in support of prosecutions, and interference with psychiatric crisis counseling, will be fought out in court in long, drawn out battles. Far from distancing the courts from their role as arbiters in abortion matters, Friday’s decision does the opposite. It’s time to start researching pre-Roe case law.
Meryl J. Chertoff is the executive director of the Georgetown Project on State and Local Government Policy and Law (SALPAL) and Assistant Professor of Law at Georgetown Law.