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Tuesday, February 27, 2024

Interstate Travel Post-Roe Isn’t as Secure as You May Think

Now that Congress has failed to pass a bill that would guarantee a right to travel across state lines to obtain an abortion, many are worried that conservative states that have started restricting abortion rights could soon decide to block people seeking abortions from leaving their own state for that purpose. Many Republican lawmakers are already discussing this possibility. But would such drastic restrictions even be possible—or, at the very least, legal?

The Biden administration, aware that Congress will likely not act on abortion rights before the November midterms, has been making efforts to determine what the executive branch can do to protect abortion access on its own. President Joe Biden signed an executive order at the beginning of the month that directed the Department of Health and Human Services (HHS) to expand access to abortion pills, protect patient privacy, and more.

Following that executive order, the US Department of Justice announced the establishment of a Reproductive Rights Task Force, which will “monitor and evaluate” efforts to ban abortion pills, prevent someone from obtaining an abortion in a state where it is legal, or punish federal employees who provide health care that is legal at the federal level. How much the Department of Justice can do to protect the right to travel across state lines for an abortion, and whether states can ban people from doing so remain glaring unknowns.

In terms of what the Justice Department can do if a state were to ban traveling to obtain an abortion, the most likely response would be a lawsuit against that state. Mary Ziegler, a law professor at UC Davis, says the agency would argue that such a ban is unconstitutional. (The DOJ itself did not respond to a request for comment.)

Justice Brett Kavanaugh wrote in his concurring opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, that states may not ban people from traveling across state lines to get an abortion. That being said, Ziegler isn’t exactly confident the right to travel will remain protected.

“What Kavanaugh said was really vague. It’s true there’s a right to travel, but I don’t know how much that gets you,” says Ziegler. “There used to be a right to abortion, and now there is not. When the court is talking about unenumerated rights, that can change. Even if you take Kavanaugh at his word about this, that doesn’t answer all of the questions.”

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The right to travel is generally seen as protected by the Fourteenth Amendment, and this has been upheld by the Supreme Court in the past. However, the right to an abortion was also seen as something that was protected by the Fourteenth Amendment until Roe was overturned.

“I think efforts to try and deal with the right to travel—this is uncharted territory in a lot of ways. There’s not a lot of broad precedent about the right to travel,” says Melissa Murray, a law professor at New York University. “A lot of it is going to present issues that for some courts will feel or seem like a first impression.”

In order to avoid an anti-travel law being struck down by the courts, a state could craft legislation that effectively but not explicitly bans interstate travel. Texas’ SB 8, which banned abortion after six weeks prior to Roe being struck down, was able to survive judicial review because it is effectively enforced by private individuals or groups, in the form of lawsuits, instead of the state. Interestingly enough, research from the University of Texas at Austin found that out-of-state travel dramatically increased following the passage of SB 8.

Rachel Rebouché, interim dean and a professor of law at the Temple University School of Law, says a lawsuit from the Department of Justice over anti-travel legislation may not be successful.

“SB 8 in Texas was unconstitutional, and it’s still in force. It was in force while there was Roe on the books. I’m not sure we can predict with any certainty what future courts are going to hold,” says Rebouché. “There’s already case law of a law that a court could interpret as unconstitutional at the time it was passed being shielded from federal court review because of the kind of enforcement mechanism it has.”

Without Congress passing a law to protect the right to travel, it will likely be difficult for the Department of Justice to defend that right. Rebouché says the department needs to look at all of the laws that are already on the books, such as laws related to interstate commerce or civil rights, and see if there are any that would allow it to enforce the right to travel.

“The DOJ is a huge entity with so many moving parts, so many different kinds of powers and responsibilities. Thinking about how it could intervene means thinking creatively about where are these touch points of DOJ powers and duties that might touch on abortion access,” Rebouché says.

What is clear is that a showdown between the Department of Justice, states, and the courts is likely fast approaching. If the DOJ is going to prioritize protecting abortion access, it will have to do a full survey of every power it has available and hope the Supreme Court doesn’t decide that it doesn’t, in fact, have those powers.

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