When the U.S. Supreme Court overruled Roe v. Wade — the five-decade-old decision that protected abortion rights nationally — it created a new legal battlefield.
One of the most vexing issues, legal experts say, is whether states that ban abortions can legally punish women for leaving the state to get an abortion, or punish people who help them secure an out-of-state abortion.
This question is urgent because the justices, by overturning Roe, handed states the power to allow or ban abortion, leaving the procedure available only in a patchwork of states. Now, women who live in states without legal abortion might decide to seek the procedure in a state that permits it.
No state has yet enacted a law to ban this travel. But it has been attempted: In Missouri, a bill is pending that would enforce abortion restrictions through civil lawsuits if the abortion is administered outside the state.
We reviewed published legal commentary since the court’s June 24 decision and interviewed a dozen legal experts to gauge whether restrictions on traveling out of state to secure an abortion might be upheld as legal in the future. Ultimately, most of these experts said they could see the Supreme Court, and other courts, going either way on the issue.
What are the direct precedents?
The legal precedent that will shape the battle over out-of-state abortion laws is complicated and sometimes contradictory.
“There is not a huge amount of case law” on such matters because, “by and large, states have not tried to” regulate what other states do, said Mark D. Rosen, professor at the Chicago-Kent College of Law. “It reflects a certain ethic of interstate comity.”
“As a general matter, states cannot use ordinary criminal laws to prosecute people for crimes committed outside of their borders,” wrote David S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh, and Rachel Rebouché of Temple University in a recent legal journal article. But this general rule “has enough gaps to allow prosecution of a wide variety of crimes that take place outside the jurisdiction of a state,” they said.
The article was published a few months before the court’s decision to overturn Roe and was cited in the dissent issued by the three liberal justices. The paper discusses a case from 1975, in which the Supreme Court overruled a lower court regarding the publication of an advertisement in a Virginia newspaper that encouraged students at the University of Virginia — where abortion was illegal in the state at the time — to travel to New York to obtain an abortion.
The Virginia Supreme Court had ruled on two separate occasions that the advertisement was illegal under state law, but the U.S. Supreme Court disagreed, saying the state couldn’t enforce such a law.
However, Cohen and his co-authors argued that this precedent doesn’t necessarily offer much protection for women who want to travel out of state to obtain an abortion.
If the current Supreme Court is willing to overturn a decision as big as Roe, it “could easily revisit” the scattered precedents, the paper’s co-authors concluded. “In the meantime, states will proceed as if they have the power, waiting for courts to call their bluff.”
What constitutional or legal issues could support abortion travel laws?
For those who would support bans against traveling out of state for an abortion, there is “pretty clear” precedent for states being able to enforce laws beyond their boundaries, such as the 1941 ruling in Skiriotes v. Florida, said Kermit Roosevelt, a University of Pennsylvania law professor.
And under the 1985 Supreme Court decision Phillips Petroleum Co. v. Shutts, states are able to apply civil laws to their citizens when they are in another state, Rosen said.
There is also precedent for a state to “punish a crime committed by its citizens in another state, so long as the conduct is criminal in both states,” said Gabriel (Jack) Chin, a law professor at the University of California-Davis. If abortion was legal in the second state, the state passing the out-of-state abortion restriction might be on safer legal ground if it could demonstrate some form of harm to the state, he added.
“State A could argue that, unlike traveling to engage in gambling or smoking marijuana, an abortion has continuing effects in State A, namely, the death of a citizen or future citizen of the state,” Chin said.
If states set laws punishing women for abortion travel, what constitutional or legal issues would they face?
By the same token, laws punishing women for out-of-state travel could face judicial turbulence from several longstanding constitutional principles.
“There are multiple strong arguments that such a law would be unconstitutional,” George Mason University law professor Ilya Somin told PolitiFact. “The plaintiffs need only win on one.”
Here are some of them:
- State sovereignty. States are sovereign entities, meaning they govern themselves. State A may wish to have a say in things that happen in State B that affect state A, but State B, as its own sovereign entity, will also want a say. Under the law, the sovereignty of State A does not inevitably trump the sovereignty of State B. Instead, the judicial system has to balance the two states’ competing claims of sovereignty. This means that State B — an abortion-rights state in this example — could end up winning in court if it challenges State A’s abortion travel ban as an infringement on its own sovereignty.
- The right to travel. The Supreme Court has upheld the right of Americans to travel from state to state, notably in the 1867 case Crandall v. State of Nevada. This principle was upheld in the 1999 case Saenz v. Roe. “Allowing states to impose abortion travel bans would be hard to do without also giving states broad power to restrict travel by residents for a wide range of other purposes,” Somin has written.
- The full faith and credit clause. The Constitution says that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” While this argument could be “strong” in theory, Roosevelt said, he added that, historically, the court has not used the clause in a consistent way in situations analogous to abortion travel laws.
- The “Dormant Commerce Clause.” The Constitution’s Commerce Clause states, in part, that Congress can “regulate commerce … among the several states.” The confusingly named “Dormant Commerce Clause” principle refers to restrictions on state power that are not explicitly included in the Commerce Clause, but which have been inferred from it over the years by the Supreme Court. Under this principle, any state law that affects economic activity among other states can be struck down if it is unduly burdensome. Whether an abortion travel law would meet that threshold would be contested terrain in court, but Somin has suggested that this argument is a credible tool for opponents of such laws.
Meanwhile, it’s possible that the federal government could pass a law preventing states from banning abortion. Federal law, in that case, would trump contrary state laws. But it’s unclear whether there is sufficient political will to pass such a law in Congress.
A final obstacle for states enforcing abortion travel laws is practical. “Even if courts permit these prosecutions and lawsuits to proceed, states may struggle to enforce their laws extraterritorially against providers who refuse to appear at a summons or participate in a lawsuit,” Cohen, Donley, and Rebouché wrote.
How might these issues play out?
In the decision that overturned Roe, one justice in the majority broached the question of punishing out-of-state abortions directly: Brett Kavanaugh.
“As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Kavanaugh wrote. “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.”
Combined with the three liberal justices who dissented, plus Chief Justice John Roberts, who voted to overturn the Mississippi law at issue but not to overturn Roe entirely, Kavanaugh’s opposition likely means there are at least five votes on the current court for continuing to allow women to travel out of state for abortions.
Still, as Timothy Zick, a law professor at the College of William & Mary, pointed out, Kavanaugh “did not elaborate, and it is not certain other justices in the majority would agree.”
In their journal article, Cohen and his co-authors predicted a lengthy period of “constitutional uncertainty” rather than a clear fate for abortion travel bans one way or the other.
Carl Tobias, a University of Richmond law professor, agreed with this sense of caution about what the future holds. After all, Tobias said, until recently, “few observers thought that the Supreme Court would overrule the constitutional right to abortion that Roe granted.”