The news was bleak in Friday’s Supreme Court holding in Dobbs v. Jackson, and I am not here to tell you otherwise. But the opinion itself contains a few glimmers worth analyzing. One is from Justice Brett Kavanaugh in a concurring opinion: “For 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.”
The right to travel has not been adumbrated extensively in case law. With respect to international travel, it received a bump of attention during COVID-19, when some Americans were forced to quarantine out of the country until they could produce negative COVID tests; and also when, at the beginning of the pandemic, some governors sought to ban interstate travel from states deemed to be “COVID hotspots” — a futile exercise that was soon abandoned. Almost no case law emerged.
More generally, the right of Americans to travel interstate in the United States has never been substantially judicially questioned or limited. In 1941, the Supreme Court declared unconstitutional California’s restriction upon the migration of the “Okies” — whose travails are famously documented in the John Steinbeck classic, “The Grapes of Wrath.” Justice William O. Douglas referred to “the right of free movement” as “a right of national citizenship,” and the rights of the migrants were upheld under the Commerce Clause.
The Privileges and Immunities Clause protects the rights of U.S. citizens, who are each also the citizens of a state, against discriminatory treatment under the law of a different state. In a 1985 case, the Supreme Court found that the Privileges and Immunities Clause prohibited discrimination against a nonresident except where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the state’s objective. In deciding whether the discrimination bears a close or substantial relationship to the state’s objective, the court has considered the availability of less restrictive means.
The 1999 case of Saenz v. Roe provides further elaboration: Justice John Paul Stevens asserted that the right contains three components: (1) the right to enter and leave another state; (2) the right to be treated as a welcome visitor when temporarily present in another state; and (3) the right to be treated like other citizens of that state for those travelers who elect to become permanent residents.
A right to travel also has 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 abortion now that Dobbs has been decided. Thirteen have enacted trigger laws that would outlaw abortion as soon as Roe was reversed; one state, Oklahoma, banned abortion in May, in advance of the Dobbs ruling. For women and girls seeking this health care, the options are limited: self-administered abortion or medication abortion (which are criminalized under some of the new statutes) or travel to a state that still has legal abortion.
In 2017, an average of 8 percent of patients left their state of residence for abortion care, according to a study published in The Lancet. But drill down further, and the data show 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. Now, all surgical abortions will be banned in those states and others, meaning those who can least afford out-of-state travel will have no legal options to terminate their pregnancy. New restrictions likely will most seriously impact those already suffering insufficient access to health care, including low-income individuals; Black, Latina and Asian patients; young people; and LGBTQ individuals.
But states with welcoming policies, such as Colorado, Connecticut, Maine, Massachusetts, Minnesota, New Jersey and New York, likely will receive unprecedented numbers of visitors seeking care. A number of businesses have announced that they will assist employees seeking abortion care, setting up a conflict with states, including Texas, that have 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, and modeled on S.B. 8, the Texas “bounty” law, would allow prosecution not only for a person who aids another to obtain an abortion in Missouri, but also who aids another to travel to a state in which abortion is legal. The proposed law has dubious criminal law underpinning — it posits that a criminal conspiracy can be based on behavior that is legal in the state where it occurs, and not in the state where the traveler resides, stretching the idea of long-arm jurisdiction.
At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.
What extraterritorial jurisdiction courts will uphold post-Dobbs is yet to be determined. It’s a sad exercise to go back to pre-Roe and Roe-adjacent cases, but back we must go to Bigelow v. Virginia, where Justice Harry Blackmun, writing for the majority of the court, reversed the 1971 conviction in Virginia of a Charlottesville editor whose newspaper advertised reproductive health services offered in New York. In that 1975 case, the Supreme Court stated that a “State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”
Even if home states have some extraterritorial powers with respect to their citizens, they do not have the power to prohibit them from engaging in activities in host states that are permissible for the host states’ citizens. Professor Seth Kreimer has advanced this view, relying in part on Bigelow. Professor Lea Brilmayer argues that with regard to issues about which there are sharp moral disagreements among states, such as abortion and the right to die, the structure of the federal system clearly compels the priority of the territorial state, and this priority typically invalidates the residence state’s claim to regulate.
To do otherwise, she argues, would allow preemption of one state’s law by another, a horizontal preemption not recognized in federalism.
It is pretty clear that the question of extraterritorial prosecution, along with many other issues, such as abortifacient by mail, use of personal data in aid of prosecutions, and interference with psychiatric crisis counseling, will be duked out in the courts in long, protracted battles. Far from getting the courts out of the business of being referees on abortion, Friday’s ruling does the opposite. It’s time to start researching the 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 an adjunct professor of law at Georgetown Law.