Abortion travel bans proposed in multiple states
In the latest horror since Roe v. Wade was overturned, six states have introduced abortion travel bans. But what does this mean, who do they apply to, and do we think they could really be passed?
Let’s back up a bit. In a June 2022 historic Supreme Court case, Roe v. Wade was overturned by the Dobbs v. Jackson Women’s Health decision. Roe ensured a woman’s right to an abortion in the United States. The Dobbs decision took away federal legalization of abortion and left abortion laws up to each individual state. Today, 21 states have some form of abortion ban.
State abortion bans mean more women are traveling outside their home states to obtain abortions. Currently, about 20% of women receiving abortions are doing so outside their home states. The need to travel across state lines raises additional barriers for many abortion-seekers. It can get expensive. You need to be able to take time off work or postpone daily responsibilities. And, if the states near you also ban or severely restrict abortion, like in the Southeastern US, you will have to travel farther, which can require more time and money. But as difficult as things are now, they may soon be getting worse.
In 2022, Republicans blocked a Democrat-sponsored bill in the Senate which would have guaranteed freedom to travel out-of-state for an abortion. Now, anti-abortion states and local governments are passing new legislation to prevent people from traveling out-of-state for the purpose of getting an abortion.
New laws are popping up, allowing people to sue anyone they believe is helping an abortion-seeker travel through the county or city in which the law is enacted. Here’s a state-by-state look at the abortion travel ban landscape:
Travel ban passed but it has been temporarily blocked by a federal judge.
Travel ban proposed.
Travel ban proposed.
Travel ban proposed.
Travel ban considered but not passed.
The basis for these laws is to prevent “abortion trafficking,” implying that women are being transported across state lines to obtain abortions against their will—a claim for which there is absolutely no evidence. The abortion “travel bans” created to prevent minors from traveling to get an abortion could have wild implications. Ultimately, friends, aunts, or grandparents who help a teenager get an abortion or gain access to medication could be sent to prison for “human trafficking.” These bans would force children into parenthood. We can’t disagree that it feels like the Handmaid’s Tale coming to life.
So what are the legal ramifications? Can these bans even stand up in court?
People might gamble in Vegas or use recreational marijuana in Colorado even if it is illegal in their home state. So, how can anti-abortion states control what their citizens do elsewhere?
Many legal scholars say they can’t. There is a constitutionally protected right to travel in the U.S., meaning no state can restrict citizens’ right to travel between states. Several Supreme Court cases (for example, Saenz v. Roe and Shapiro v. Thompson) have affirmed this right. And no state can control conduct occurring outside its borders (see, e.g., Bigelow v. Virginia).
Even Supreme Court Justice Brett Kavanaugh in his concurrence in Dobbs wrote that a state could not bar its citizens from traveling to states in which abortion is legal. For the same reason, the Amarillo City Council in Texas declined to pass legislation restricting the right to travel. These are also some of the main arguments offered by the U.S. Department of Justice in its statement of interest that it filed in two ongoing cases, Yellowhammer Fund v. Marshall and West Alabama Women’s Center, et al., v. Marshall, in which organizations and individuals helping abortion-seekers travel out-of-state are contesting the Alabama Attorney General’s right to pursue criminal prosecutions against them.
So, what’s the problem?
Most of this new legislation isn’t directed at the travelers — the abortion-seekers — but the people helping them travel, who may be located in the restricting state. Civil laws like the ones in Texas are subject to much less constitutional review than criminal laws. Our history of case law protecting the right to travel deals with states attempting to protect their economic interests and discriminating against citizens of other states. Here, we have legislation that regulates the travel of a state’s own citizens, and which is based (allegedly) on the state’s interest in protecting the health and welfare of its citizens. States have more latitude in regulating matters of public health and the behavior of their own citizens.
Many legal scholars still think this is not enough to overcome the constitutional right to travel, but some are wary of how the conservative Supreme Court will rule if and when controversies over this new wave of legislation reaches it. And in the meantime, potential legal consequences may scare people enough to avoid traveling for an abortion, scare medical providers enough to avoid providing services to out-of-state residents (which is already happening in Planned Parenthood clinics in Montana), or scare organizations from providing funds and material assistance to people seeking abortions.
The silver lining is that these kinds of laws will be difficult to enforce. And some states that allow legal abortions, like New Mexico, Illinois, and Colorado, have shield laws to protect providers and organizations from enforcement activity and investigations initiated by states in which abortion is banned or severely restricted. The Washington and Oregon legislatures are considering bills restricting such enforcement and investigative activity, as well. Hopefully, more states will follow suit.