Pro-Choice States Should Protect the Right to Travel for Abortion

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Suppose Roe v. Wade is overturned. A recent fanfare of concern worries that a state would then be able to punish its citizens for traveling to other states to seek medical assistance in ending their pregnancies. Missouri is considering a statute that would do exactly that, and Texas activists are pushing a similar proposal. Other states may follow.

Would such a law be constitutional? It’s hard to be sure.  The doctrine is a confusing mishmash, and the Supreme Court has declined to offer definitive guidance. Although legal scholars have been arguing since the 1990s in favor of a right to travel to seek an abortion, the last time the justices directly addressed the issue of a state’s power to punish crimes beyond its borders was … um … 1941.

In short, we can’t predict how a court would treat an effort by one state to bar its citizens from obtaining abortion in another. But one need not be pro-choice to see the strength of the argument against such a law.

Let’s start with a basic question: Can a state punish its citizens for breaking the state’s laws while beyond its boundaries? It would seem that the answer is yes. In 1941, the Supreme Court held that Florida could punish its residents for breaking Florida law while on the high seas. Over the ensuing decades, other states have successfully prosecuted crimes committed at sea.

It would also seem that the answer is no. During the era of human enslavement, the general rule was that one state could not enforce its own laws on the matter outside its borders. In Lemmon v. The People (1860), for example, the New York Court of Appeals ruled that the legal status of slaves brought to New York would be determined only by New York law; thus they were set free. 

The process also worked the other way around. I recently came across an 1831 decision holding that Indiana’s ban on slavery could not prevent Indiana residents from owning slaves held in other states.

Here’s a way to harmonize the cases. In the Florida case (as in the many others involving conduct on the high seas), the crime is committed outside the jurisdiction of any state. There isn’t a countervailing interest.  The 1831 case, however, arose where the laws of two separate states were in conflict. Kentucky allowed slavery; Indiana didn’t; the court held that an act legal in Kentucky couldn’t be prevented because the person who did it couldn’t have done it at home.

I’m not saying that the pro-choice side should rely on cases handed down in the era when human beings were property. But it’s worth noting that the antebellum cases arose because different states had different laws on the subject. Thus there’s good reason to heed the advice of my Yale colleague Lea Brilmayer, who has argued that one state’s right to punish its citizens for doing what its own law prohibits should yield to another state’s right to take a strong policy position in favor of it.

The policy point matters. As Brilmayer notes, there’s no conflict “if the first state wished to prohibit certain types of conduct, while the second was simply indifferent.” The issue arises only when two states are actively working to promote different answers to the question. If this argument is correct — and I believe it is — then in a nation where Roe v. Wade is no longer constitutional law, pro-choice states would do well to adopt statutes explicitly recognizing the right to an abortion. By writing their preferences into policy, they would create sufficient conflict to prevent the pro-life state from enforcing its law beyond its territory.

Even if all of this is unpersuasive, there remain prudential reasons that states considering sharp restrictions on abortion shouldn’t try to punish their residents for obtaining abortions in the state next door.

The most obvious reason is reciprocity. Consider two adjoining states, like Missouri and Illinois. Missouri is likely to bar all or most abortions. Illinois not only allows abortion but in 2019 enacted a law saying that women have a “fundamental right” to access abortion and that a “fertilized egg, embryo, or fetus does not have independent rights.” If abortion law crosses the border, why couldn’t the Illinois law apply in Missouri if an Illinoisan travels there? (An analogous caution might apply were a state to bar employers from paying expenses for employees who travel to seek an abortion, although the legal issues are somewhat different.)

There’s another prudential concern, one that has nothing to do with abortion. In March, the US Supreme Court agreed to hear a challenge to a California law restricting the sale of pork products unless the farms meet certain standards, even though nearly all the farms in question are outside the state. The challenge builds on previous decisions, such as the 1996 case where a majority of the justices warned that “a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.”

No, the issue isn’t remotely the same. But this line of cases is a reminder that we live at a time when states are trying all sorts of devices to regulate conduct beyond their borders, even when the conduct is legal elsewhere. We should take the time to ponder whether that’s the direction in which we want to move.

More from Bloomberg Opinion:

• The Supreme Court Has a Nasty Surprise in Store for Business: Noah Feldman

• Jan 6. Panel Made the Case Against Trump: Jonathan Bernstein

• Democrats Need the Stacey Abrams Playbook for the Roe Fight: Julianna Goldman

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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