The US Supreme Court decision in Dobbs v. Jackson Women’s Health on June 24 has returned the issues of abortion to the states, allowing “each State to address abortion as it pleases.”
In response, there’s been a flurry of activity, with nine states banning abortion completely, four more with bans that will occur within the next month, and eight other states have bans that are blocked in litigation. Meanwhile, other states are moving to provide even stronger protection for abortion access, including access for those who come from other states.
So, what does Dobbs really do? As the dissent charges, it puts the court at the “center of the coming ‘interjurisdictional abortion wars.’” A looming issue will be what happens when a resident of Missouri, which bans abortion, goes to Illinois, where abortion is still permitted, for the procedure, or when a resident of Kentucky receives abortion medication from a New York doctor.
The Supreme Court will have to referee these conflicts. It can defuse regional conflicts by upholding the long-established right to travel, or it can continue with the strategy the court embraced in Dobbs and inflame these disputes.
Justice Brett Kavanaugh, in his concurring opinion, suggested that he is open to a truce. He observed that some abortion-related legal questions will not be “difficult as a constitutional matter.”
He gave an example: “may a state bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Right to Travel Not Explicit in Constitution
Like the right to privacy, which the Supreme Court recognized in 1965 as allowing married couples to use contraception and which provided the basis for Roe, the right to travel is not explicitly mentioned in the Constitution: that is, the Constitution does not state that there is an individual “right to interstate travel.” The right to travel has nonetheless been the subject of longstanding precedents inferred from the structure of the Constitution and related rights such as those promoting interstate commerce or granting privileges and immunities.
In short, that means the only difference between the right to privacy and the right to travel is how many current Supreme Court justices still support it. If Kavanaugh does, and Chief Justice John Roberts, who filed a concurrence in Dobbs, joins him, then the right to travel will remain.
But Kavanaugh’s opinion only sets a minimum: Missouri, which bans abortion, cannot prevent a resident from traveling to Illinois to obtain an abortion, where abortion is legal.
The more complicated question is whether a person who has an abortion in Illinois and then returns home to Missouri can then be prosecuted for murder. One state cannot ordinarily prosecute a person for something that occurred in another state.
Can the home state charge the friend who suggested that the pregnant woman travel out of state, or the person who supplied the car and drove her to Illinois, for aiding and abetting the abortion? Relevant acts—suggesting interstate travel, supplying the car, and driving to the border—took place in Missouri. Missouri has even considered legislation allowing lawsuits against an Illinois doctor who performs the procedure.
Murder Prosecution?
What about a pregnant person who travels to Illinois to secure an abortion pill, legally takes it there, returns home to Missouri, and experiences complications. Can she electronically consult the out-of-state doctor who helped her obtain the abortion pills?
Given restrictions on any type of medical care across state lines, an Illinois doctor may be reluctant to provide advice if the woman experiences complications when she returns home to Missouri. And she may be reluctant to consult a Missouri doctor if she fears that she will be suspected of having had an illegal abortion.
Any lawyer or doctor who provides advice to the woman crossing state lines to seek an abortion is also at risk. These professionals are ethically charged with preserving the health of their patients and putting their clients’ interests first.
Issues to Be Reviewed for Years
We expect the Supreme Court to be reviewing these issues for the next decade. The question is whether the Supreme Court will strike down another right helping women—the right to travel—or affirm it.
Affirming it means more than saying that Missouri cannot stop all women of reproductive age from crossing the Mississippi River into Illinois. After all, a traffic jam of that magnitude is something the American public would rail against in unison.
It must mean that women who travel to Illinois, receive abortions while they are there, and return to Missouri cannot be prosecuted. It should also mean that women everywhere in the country should be able to access the medical care necessary in a second state to protect their health no matter where they obtain abortion procedures or abortion pills.
Anything short of that endangers women’s lives and allows Missouri to station pregnancy-sniffing dogs at its borders, taking away yet another right from women, the right to travel.
In the meantime, more states can do what New York and California have done in expanding abortion care and protecting providers from out-of-state liability. More critically, Congress could enact legislation that protects the right to travel for abortion care, that ensures that no one who assists a person in accessing their right to travel can be prosecuted, and that providing accurate information about legal rights associated with abortion will enjoy First Amendment protection.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Naomi Cahn is a law professor at the University of Virginia.
June Carbone is a law professor at the University of Minnesota.
Nancy Levitis a law professor at the University of Missouri-Kansas City.