WASHINGTON — Judge Brett M. Kavanaugh signed the recent majority opinion that overturned Roe v. Wade. He also issued a 12-page concurring opinion, writing only for himself. He wanted to discuss, he writes, “future implications” of the decision.
“Some of the other abortion-related legal issues raised by today’s decision are not particularly difficult from a constitutional perspective,” he wrote. “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 between states.
Hours later, Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter“Judge Kavanaugh is voting to strike down abortion protections because they’re not specifically mentioned in the Constitution — and his agreement hinges on an ‘unwritten constitutional right to interstate travel’.”
Indeed, you will search in vain in the Constitution for the word travel, just as you will not find the word abortion. And while some form of constitutional right to travel is almost uniformly accepted, the Supreme Court has struggled to say exactly where to find it or precisely how to define it.
“We need not identify the source of this particular right in the text of the Constitution,” wrote Justice John Paul Stevens in a 1999 decision on “the right of a citizen of a State to entering and leaving another State”.
Similarly, Judge William J. Brennan Jr. wrote for the court in 1969 that “we have no occasion to attribute the source of this right to interstate travel to any particular constitutional provision” .
Justice Kavanaugh, for his part, did not cite any precedent or constitutional provision for his statement that a state cannot “prohibit a resident of that state from traveling to another state to obtain an abortion.”
The real question, in any event, is not whether women seeking abortions would be stopped at the state line, but rather what would happen next – for the women, for those who helped them travel and for out-of-state abortion providers.
These questions, according to a timely draft article cited in the dissent, present an array of complicated and contested issues. The article, “The New Abortion Battleground,” to be published in The Columbia Law Review, was written by three law professors: David S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh, and Rachel Recapped from Temple University.
The prospect of states trying to stop abortions beyond their own borders is not fanciful, Professor Rebouché said.
“We should be worried that states are starting to throw everything against the wall to see what sticks,” she said. “There is an unknown universe of what awaits us.”
Missouri lawmakers have twice considered, but have yet to pass, bills that would restrict residents’ ability to get abortions in other states. The most recent of these have borrowed from the innovation of Texas law that succeeded in banning most abortions in that state after six weeks of pregnancy – 10 months before the court overturned Roe.
Like the Texas law, the Missouri bill relied on private enforcement through civil suits, shielding it from numerous legal challenges. Anti-abortion groups have also drafted model laws that cross state lines, and abortion rights groups fear a wave of such laws.
Even the prospect of such statutes seems to have had a chilling effect. In Montana, for example, Planned Parenthood clinics recently said they would require proof of residency for women applying for abortion pills.
“It’s going to get incredibly messy and complicated,” Professor Donley said, adding that Judge Kavanaugh’s statement offered “literally no protection” to out-of-state doctors and clinics who offer abortions to women in states where the procedure is illegal.
Justice Kavanaugh’s description of the scope of the right to travel, which answered a dissenting question, was oddly limited, said Seth Kreimer, a law professor at the University of Pennsylvania and author of two review articles. of fundamental rights exploring the right to travel in the context of an abortion.
The right to travel between states, he said, “is pretty firmly rooted in constitutional structure and long-standing constitutional practice.” But that’s only part of the puzzle.
‘Read carefully,’ Prof Kreimer said of Judge Kavanaugh’s statement, ‘he cannot even suggest protection from prosecution of the resident upon her return – or seeking sanctions against doctors in sanctuary states. , either by lawsuit or by action for damages”.
If Justice Kavanaugh had wanted to cite a Supreme Court precedent that seems both appropriate and expansive, he might have chosen Bigelow v. Virginia, a 1975 decision that overturned the conviction of an editor who ran an advertisement in Virginia for abortion services in New York when abortions were illegal in Virginia.
The case focused on the First Amendment, but the author of the majority opinion, Judge Harry A. Blackmun, also raised broader points.
“The Virginia legislature could not have regulated the advertiser’s activity in New York and obviously could not have prohibited activity in that state,” he wrote. “Nor could Virginia prevent its residents from traveling to New York to obtain these services or, as the state conceded, prosecute them for traveling there. Virginia had no authority to regulate the services provided in New York.
Judge Kavanaugh’s statement was much narrower, Professor Kreimer said. “Kavanaugh is not committed to protecting anything beyond ‘travel,'” he said. “So while robust protection may emerge, it is not a result to be relied upon.”