The Post-Dobbs Legality of Out-of-State Abortion Travel Bans

On June 24, 2022, with the case Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned its 1973 ruling in Roe v. Wade, setting off a cascade of abortion bans in 26 states. [1] However, lawmakers in several states, such as Arkansas, South Dakota, Texas, and Missouri, are now considering even further bans that would prevent women from traveling to obtain an abortion in a state where it is legal. Such bans could also potentially outlaw anyone from “aiding and abetting” travels for abortion purposes. [2] When reviewing the Constitution and subsequent Supreme Court and lower court decisions, it is clear that these laws are unconstitutional. Out-of-state abortion bans do not have legal standing due to protections by the Commerce Clause and the Privileges and Immunities Clause of the Constitution, as interpreted by various courts. 

While most state legislatures have not convened since the Dobbs ruling, some lawmakers have already announced their intent to introduce bills restricting out-of-state abortions at the next legislative sessions. For example, the Thomas More Society, a Chicago-based conservative law firm, is currently drafting legislation that would ban patients from obtaining abortions in other states and enforced via private civil litigation. This draws upon a method Texas’ six-week abortion ban, S.B.8, had relied on in 2021, when it encouraged private citizens to sue those having an abortion past the legal time frame out of state. [3] However, only one ban has been formally brought forward. In Missouri, State Assembly Representative Mary Elizabeth Coleman proposed an amendment to three existing bills that would criminalize “aiding or abetting” someone in receiving an abortion outside Missouri; this would also be enforced by private civil lawsuits. [4] However, civil litigations are an impractical and futile way to resolve disputes like this due to their largely limited success.

Article I, Section 8 of the Constitution clearly establishes the illegality of these bans. [5] Commonly known as the Commerce Clause, it grants Congress exclusive jurisdiction over commerce “among the several states.” [6] The 1824 Supreme Court case Gibbons v. Ogden ruled that the regulation of interstate commerce included the regulation of interstate navigation, a power only Congress held based on the Commerce Clause. [7] The majority opinion by Chief Justice John Marshall also set the foundations for what is known as the “Dormant Commerce Clause,” that “the courts may measure state legislation against Commerce Clause values even in the absence of congressional regulation.” [8] This essentially means that even if there is no national law contradicting the state law in question, the courts can still decide whether it violates the Commerce Clause. 

The Supreme Court further clarified the Commerce Clause’s applicability 125 years later in cases regarding individual states’ interference with multistate commerce. The 1949 majority opinion by Justice Robert H. Jackson in H.P. Hood & Sons v. Du Mond stands as an important precedent against states’ ability to pass laws inhibiting interstate commerce. The Court directly ruled in this case that New York could not deny a business license to a Massachusetts dairy company wishing to expand its operations into New York, establishing a precedent of the Court preventing an individual state from regulating interstate commerce. [9] Overall, although the Supreme Court has oscillated between narrow and broad interpretations of the Commerce Clause, it has generally been in favor of liberal Congressional control and limited state regulation of interstate commerce. [10] 

Additionally, federal and state courts have twice ruled on matters directly related to extraterritorial abortions, and while both cases were argued while Roe was in effect, they set precedents protecting the right to obtain an abortion out-of-state based on the Commerce Clause dovetailed with the First Amendment. In an August working paper on new legal issues relating to abortion, the legal scholars David S. Cohen, Greer Donley, and Rachel Rebouche recapitulate the two cases, U.S. Supreme Court case Bigelow v. Virginia (1975) and Missouri Supreme Court case Planned Parenthood of Kansas v. Nixon (2007). [11] In the former, the case centered on a newspaper in Virginia—where abortion was illegal at the time—that had published an advertisement for Virginia residents to obtain abortion services in New York—where it was legal—in 1972. The U.S. Supreme Court ruled 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,” suggesting that states do not have authority over what its citizens are or are not allowed to do while in a different state, including obtaining certain medical procedures as per the mention of “health and welfare.” [12] 

In the latter case, the Supreme Court of Missouri decided in 2007 that Missouri could not require minors traveling out of state for abortions to obtain parental consent, as had been mandated by a Missouri state law. “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here,” the majority opinion stated, “for its laws do not have extraterritorial effect.” [13] That court ruled that helping a minor to receive abortion care in a state without a parental consent law was legal, because this aiding and abetting took place outside of the state. Combined, the two cases found that the First Amendment rights of freedom of speech (particularly in Nixon) and freedom of the press (particularly in Bigelow) permitted aiding and abetting others’ out-of-state abortions. Thus, the currently proposed Missouri law criminalizing aiding and abetting an out-of-state abortion would not stand in court under the First Amendment protections from Bigelow and Nixon. [14]

Even if the Court decided to narrowly interpret the Commerce Clause, it still would not affect the right of a person to seek an abortion outside their state of residence due to the Privileges and Immunities Clause in Article IV, Section 2 of the Constitution, which states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” [15] James Madison contextualized this clause in Federalist No. 42: “[t]hose who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State.” [16] The clause was later extended by the Fourteenth Amendment to read that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” [17] Additionally, an individual state cannot restrict the privilege of obtaining an abortion outside the state of one’s residence, since the Commerce Clause dictates that residing in the U.S. gives women the right to travel to another state to obtain an abortion.

The right to interstate travel originates from an 1868 Supreme Court case, Crandall v. Nevada, and it has since been upheld. U.S. citizens have the right to travel throughout all parts of the country, and states cannot ban them from or punish them for leaving or passing through a state. [18] The right to travel from Crandall was reaffirmed in 1999 by the Court in Saenz v. Roe. [19] Since Dobbs, seven governors have issued executive orders shielding abortion patients living in states with abortion restrictions who wish to travel to seek abortions in their so-called “sanctuary” states. While legal precedent does not give governors the jurisdiction to do this, it is certainly legal for people to freely travel between the states without state interference. [20]

In addition, the Supreme Court restrictively ruled in 1873 that the rights guaranteed under the Constitution and the new Fourteenth Amendment’s Privileges and Immunities Clause are restricted to the privileges and immunities in areas under the control of the federal government. [21] This includes the right to use federal transportation routes to travel and presumably the right to engage in interstate commerce. In turn, because some travel routes and all interstate commerce are under federal jurisdiction, extraterritorial abortion bans would not survive even under stricter limits on the Commerce Clause. 

However, there is precedent for states to enforce laws outside their boundaries, although they must prove that the other state’s law has caused harm to the first state. Two Supreme Court cases are at the heart of this concept, as pointed out by law professors Kermit Roosevelt of the University of Pennsylvania and Mark D. Rosen of the Chicago-Kent College of Law. [22] In Skirotes v. Florida (1971), the Court declared that states could prosecute people for breaking state laws while on international waters, while in Phillips Petroleum Co. v. Shutts (1985), it declared that states could apply their own civil laws to their citizens’ actions while in other states. [23] Building off of these precedents, an anti-extraterritorial abortion state could attempt to prove harmful implications of a cross-border abortion by advocating for the “abortion is murder” argument. The state would have to argue that they were being harmed by having a future resident murdered in another state. Nonetheless, this would be incredibly difficult to prove due to the differing laws between states on fetal personhood and abortion legality. [24] If State A considers fertilized eggs to be people while State B’s laws say that life begins at birth, then a woman traveling from State A to  State B to receive an abortion could be protected. State B could defend the woman by arguing that because the abortion took place in their state and is not considered to be murder there, they did not harm State A at all. [25] Thus, the jurisprudence behind this approach to prohibiting extraterritorial abortions remains ambiguous and requires further federal intervention. In addition, the Supreme Court restrictively ruled in 1873 that the rights guaranteed under the Constitution and the new Fourteenth Amendment’s Privileges and Immunities Clause are restricted to the privileges and immunities in areas under the control of the federal government. [21] This includes the right to use federal transportation routes to travel and presumably the right to engage in interstate commerce. In turn, because some travel routes and all interstate commerce are under federal jurisdiction, extraterritorial abortion bans would not survive even under stricter limits on the Commerce Clause. 

Ultimately, what happens next will likely play out on the federal level, and it would not be surprising if the issue of extraterritorial abortion bans reaches the highest court in the land. After the Dobbs ruling, Attorney General Merrick Garland stated that “the Constitution continues to restrict states’ authority to ban reproductive services provided outside their borders,” and that the Justice Department will oppose these bans. [26] Additionally, Supreme Court Justice Brett Kavanaugh wrote in his concurring Dobbs opinion that he does not believe states can enact these bans due to the constitutional right to travel. [27] However, the rest of the Court’s conservative majority has yet to comment on these bans. In the end, it is crucial that the Supreme Court Justices, along with the rest of the judicial system, respect the Commerce Clause, Privileges and Immunities Clause, and numerous other precedents by striking down these unconstitutional state laws accordingly when brought before the courts.

Edited by Andrea Ruiz

Sources:

[1] Oriana Gonzalez and Jacob Knutson, “Where abortion has been banned now that Roe v. Wade is overturned,” Axios, October 11, 2022, https://www.axios.com/2022/06/25/abortion- illegal-7-states-more-bans-coming.

[2] Caroline Kitchener and Devlin Barrett, “Antiabortion lawmakers want to block patients from crossing state lines,” Washington Post, June 30, 2022, https://www.washingtonpost.com/ politics/2022/06/29/abortion-state-lines/; “Texas Companies Face Legal Repercussions for Abortion Travel Reimbursement Policies,” Mehaffy Weber, July 26, 2022,  https://www.mehaffy weber.com/news/texas-companies-face-legal-repercussions-for-abortion-travel-reimbursement-policies/; Sarah Fentem, “Missouri lawmaker wants to make it a crime to help people get abortions out of state,” KCUR 89.3 St. Louis Public Radio, March 14, 2022, https://www.kcur. org/politics-elections-and-government/2022-03-14/missouri-lawmaker-wants-to-make-it-a-crime-to-help-people-get-abortions-out-of-state.

[3] Kitchener and Barrett, “Antiabortion lawmakers.”

[4] Kitchener and Barrett, “Antiabortion lawmakers.”

[5] “Article I: U.S. Constitution,” in Wex, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/constitution/articlei#section8.

[6]  “Article I: U.S. Constitution,” in Wex.

[7] Gibbons v. Ogden, 22 U.S. 1 (1824).

[8] “Dormant Commerce Power: Overview,” in Wex, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/constitution-conan/article-1/section-8/ clause-3/dormant-commerce-power-overview.

[9] H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949).  

[10] “Commerce Clause,” in Wex, Legal Information Institute, Cornell Law School,  https://www.law.cornell.edu/wex/commerce_clause.

[11] David S. Cohen, Greer Donley, and Rachel Rebouche, “The New Abortion Battleground,” Columbia Law Review 123 (2023, Forthcoming): 21-24, https://papers. ssrn.com/sol3/papers.cfm?abstract_id=4032931.  

[12] Bigelow v. Virginia, 421 U.S. 809 (1975). 

[13] Planned Parenthood of Kansas v. Nixon, 220 S.W.3d 732 (Mo. banc 2007).

[14] Cohen, Donley, and Rebouche, “The New Abortion,” 21.

[15] Slaughterhouse Cases, 83 U.S. 36 (1872),. 

[15] “Privileges and Immunities Clause,” in Wex, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/privileges_and_immunities _clause.

[16] James Madison, “Federalist Paper No. 42,” in Alexander Hamilton et al., The Federalist Papers (New Haven, Conn.: The Avalon Project, 1995), https://avalon.law.yale.edu/18th_century/fed42.asp.

[17] “Fourteenth Amendment,” in Constitution Annotated, Library of Congress, https:// constitution.congress.gov/browse/amendment-14/#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.

[18] Crandall v. Nevada, 73 U.S. 35 (1868).

[19] Saenz v. Roe, 526 U.S. 489 (1999).

[20] “Tracking the States Where Abortion Is Now Banned.” New York Times, October 13, 2022, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html; Cohen, Donley, and Rebouche, “The New Abortion,” 22-23.  

[21] “Slaughter-House Cases,” Oyez, accessed November 2, 2022, https://www.oyez.org/ cases/1850-1900/83us36. 

[22] Louis Jacobson, “Can states punish women for traveling out of state to get an abortion?” Poynter, July 6, 2022, https://www.poynter.org/fact-checking/2022/can-states-punish-women- for-traveling-out-of-state-to-get-an-abortion.

[23] Skiriotes v. Florida, 313 U.S. 69 (1941); Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

[24] Jacobson, “Can states punish?”

[25] Jacobson, “Can states punish?”

[26] U.S. Department of Justice, “Attorney General Merrick Garland Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization,” June 24, 2022, https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-statement-supreme- court-ruling-dobbs-v-jackson-women-s.  

[27] Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).