Navigating Abortion Laws: Traveling For Abortion Care

The issue of travelling out of state to have an abortion has become a legal minefield since the U.S. Supreme Court's 2022 decision to overturn Roe v. Wade, which protected abortion rights across the nation. While no state has yet enacted a law to ban this travel, some have tried. In the absence of a federal right to abortion, abortion laws now vary from state to state, and many people are travelling to access abortion services. This has led to a rise in the number of abortions provided in the U.S., with the number of people crossing state lines to get abortions more than doubling from 81,000 in 2020 to 171,000 in 2023.

The US Constitution does not explicitly recognise a right to interstate travel

Article IV of the US Constitution states that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States...". This means state governments must treat all American citizens the same, whether they are visitors to the state or residents. The Fourteenth Amendment also addresses privileges and immunities, along with its guarantees of due process and equal protection under the law.

The doctrine of the right to travel encompasses three separate rights, the first being the right of a citizen to move freely between states. This right has a long history but lacks a clear doctrinal basis. The second right, addressed by the first sentence of Article IV, provides that a citizen of one state who is temporarily visiting another state is entitled to the Privileges and Immunities of a citizen of the latter state. The third right is that of a new arrival to a state, who establishes citizenship and enjoys the same rights and benefits as other state citizens.

While the right to interstate travel is not explicitly mentioned in the Constitution, it has been recognised by the Supreme Court as essential to the "united" nature of the United States. The Court has upheld the right of Americans to travel from state to state, notably in the 1867 case Crandall v. State of Nevada, and again in the 1999 case Saenz v. Roe. This principle was further upheld in the 2023 case Ensuring Access to Abortion Act, which would secure the right to travel across state lines to receive reproductive health care.

However, the legal landscape surrounding abortion access is complex and evolving. While no state has enacted a law banning travel for abortions, some states have made efforts to restrict residents from helping others obtain out-of-state abortions. The Supreme Court's decision to overturn Roe v. Wade has created a new legal battlefield, with legal experts divided on the issue of whether states can punish women for seeking abortions out of state.

The right to travel is recognised by the US Constitution, but there has been no Supreme Court ruling on whether this protects travelling for an abortion

The right to travel across state lines to seek an abortion has been a contentious issue in the United States, especially after the Supreme Court's decision to overturn Roe v. Wade. While the right to travel is recognised by the US Constitution, the Supreme Court is yet to rule specifically on whether this right includes protecting individuals seeking abortions in other states.

In November 2023, the US Department of Justice backed the right of individuals to travel across state lines to receive an abortion, supporting two lawsuits in Alabama. The Justice Department argued that the Constitution protects the right of individuals to travel from states where abortion is banned or restricted to receive a legal abortion in another state. Attorney General Merrick Garland affirmed that "women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal."

Despite the lack of a clear Supreme Court ruling, legal experts have weighed in on the issue. Some experts cite the 1975 case where the Supreme Court overruled a lower court's decision and allowed the publication of an advertisement in a Virginia newspaper, encouraging students to travel to New York for an abortion. This precedent, however, may not offer substantial protection for individuals seeking abortions in other states, as the current Supreme Court could potentially revisit and overturn previous scattered precedents.

Justice Brett Kavanaugh, in the decision that overturned Roe v. Wade, briefly addressed the question of punishing out-of-state abortions, stating that "a state may not bar a resident of that state from travelling to another state to obtain an abortion." Combined with the three liberal justices who dissented and Chief Justice John Roberts' partial dissent, there are likely at least five votes on the current court for continuing to allow individuals to travel out of state for abortions.

While no state has enacted a law to ban travel for abortions, some states like Texas, Missouri, and Tennessee have attempted to restrict residents from helping others obtain out-of-state abortions. The absence of a clear Supreme Court ruling on this issue leaves room for ongoing legal battles and uncertainty regarding the right to travel for abortion across state lines.

States cannot prosecute women for crimes committed outside their borders, but there are legal loopholes

The U.S. Supreme Court's decision to overturn Roe v. Wade has created a legal conundrum, with the power to allow or ban abortions now in the hands of individual states. This has raised questions about whether states that ban abortions can legally punish women for leaving the state to get an abortion, or punish those who help them.

While no state has yet enacted a law to ban this travel, there have been attempts to do so. Legal experts argue that, as a general rule, "states cannot use ordinary criminal laws to prosecute people for crimes committed outside of their borders". However, this rule has its exceptions, and there is a possibility that the Supreme Court could revisit and overturn previous precedents.

One precedent that may shape the battle over out-of-state abortion laws is a 1975 case where the Supreme Court overruled a lower court regarding an advertisement in a Virginia newspaper. The advertisement encouraged students at the University of Virginia, where abortion was illegal, to travel to New York to obtain an abortion. The Virginia Supreme Court had ruled the advertisement illegal, but the U.S. Supreme Court disagreed, stating that Virginia couldn't enforce such a law.

However, legal scholars argue that this precedent may not offer much protection for women seeking abortions out of state. The current Supreme Court has already overturned Roe v. Wade, a much bigger decision, and could easily revisit and overturn previous scattered precedents. In the meantime, states may act as if they have the power to restrict abortions, waiting for the courts to intervene.

There are several constitutional and legal issues that could support or oppose abortion travel laws. For instance, the principle of state sovereignty, where states are sovereign entities that govern themselves, could be used to argue against abortion travel bans. Additionally, the right to travel, upheld by the Supreme Court in the 1867 case Crandall v. State of Nevada, could make it difficult for states to impose abortion travel bans without also restricting travel for other purposes.

On the other hand, there is precedent for states being able to enforce laws beyond their boundaries, such as the 1941 ruling in Skiriotes v. Florida. Furthermore, under the 1985 Supreme Court decision Phillips Petroleum Co. v. Shutts, states can apply civil laws to their citizens when they are in another state. There is also the argument that a state could punish a crime committed by its citizens in another state, as long as the conduct is criminal in both states.

While states cannot prosecute women for crimes committed outside their borders, legal loopholes exist that could potentially allow for prosecution. The future of abortion travel laws remains uncertain, with legal scholars predicting a lengthy period of constitutional ambiguity.

The Supreme Court has upheld the right of Americans to travel between states, notably in the 1867 case Crandall v. State of Nevada

The question of whether women can travel out of state to have an abortion is a pressing one in the wake of the Supreme Court's overturning of Roe v. Wade. While no state has yet enacted a law to ban this travel, there have been attempts to do so, and legal experts are divided on whether the Supreme Court would uphold such a ban.

However, the Supreme Court has previously upheld the right of Americans to travel between states. Notably, in the 1867 case Crandall v. State of Nevada, the Court affirmed that a state cannot inhibit people from leaving the state by taxing them. In this case, the State of Nevada had enacted a statute imposing a $1 tax on every person leaving the state by railroad, stage coach, or other vehicles engaged in transporting passengers for hire. The Court found that this tax interfered with the right to travel and was therefore unconstitutional.

The Crandall decision established the principle that the right to travel is a fundamental right. The Court reasoned that the people of the United States constitute one nation, and a state may not impose a tax on a person for the "privilege" of traveling from or passing through it. This decision was based on the Commerce Clause of the Constitution, which grants Congress the power to regulate commerce among the states. The Court found that the Nevada tax impeded interstate commerce and was therefore unconstitutional.

The Crandall case set an important precedent for the right to travel, which has been upheld by the Supreme Court in subsequent cases, such as Saenz v. Roe in 1999. This precedent could be relevant to the question of whether women can travel out of state to have an abortion, as it establishes that states cannot place restrictions on the movement of citizens between states. However, it is important to note that the legal landscape has changed significantly since the Crandall decision, and the Supreme Court's recent overturning of Roe v. Wade has created a new legal battlefield.

The Dormant Commerce Clause suggests that states do not have the power to burden interstate commerce

The issue of abortion has been a contentious topic in the United States, with varying state laws and restrictions. While no state has explicitly outlawed traveling out of state for an abortion, the question of whether states can legally punish women for doing so remains a complex legal debate. This discussion revolves around the interpretation of the Dormant Commerce Clause and its implications for state power.

The Dormant Commerce Clause, also known as the Negative Commerce Clause, is a legal doctrine inferred from the Commerce Clause in Article I, Section 8, Clause 3 of the U.S. Constitution. The Commerce Clause grants Congress the power to "regulate commerce with foreign nations, among the several states, and with the Indian tribes." While it empowers Congress to pass federal laws, it also limits state authority to regulate commerce. The Dormant Commerce Clause suggests that states do not have the power to burden interstate commerce. This interpretation prevents states from adopting protectionist measures and preserves a national market for goods and services.

The Supreme Court has identified two key principles in its modern interpretation of the Dormant Commerce Clause. Firstly, states are generally prohibited from discriminating against interstate commerce. Secondly, states may not take actions that are facially neutral but unduly burden interstate commerce. This means that state laws or regulations cannot favor in-state economic interests over out-of-state interests. Such discriminatory laws motivated by economic protectionism are subject to strict scrutiny and can be struck down unless the state can demonstrate a legitimate local purpose that cannot be achieved through non-discriminatory means.

The Dormant Commerce Clause has been applied in various contexts, including state taxation, local processing requirements, and health and safety regulations. For instance, in West Lynn Creamery Inc. v. Healy, the Supreme Court struck down a Massachusetts state tax on milk products because it impeded interstate commercial activity by discriminating against non-Massachusetts citizens and businesses. This decision upheld the principle that states cannot place themselves in economic isolation and must respect the national economic unit.

In conclusion, the Dormant Commerce Clause suggests that states do not have the power to burden interstate commerce. It serves as a check on state power, preventing them from enacting protectionist measures that discriminate against or unduly burden interstate commerce. This interpretation has been reinforced by Supreme Court decisions that prioritize the preservation of a national market and restrict states from impeding the flow of commerce across state borders.

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