The right to travel to have an abortion in a post-Dobbs world

The news was grim on Friday when the Supreme Court ruled in Dobbs v. USA. Jackson, and I’m not here to tell you otherwise. But the opinion itself contains a few glimpses that are worth analyzing. One of the concurring opinions belongs to Judge Brett Kavanaugh: “For example, can a state prohibit a resident of this state from traveling to another state in order to have an abortion? In my opinion, the answer is no, based on the constitutional right to travel between states.”

The right to move has not been detailed in case law. As for international travel, it has received attention during COVID-19, when some Americans have been forced to leave the country for quarantine until they can get negative COVID tests; and when, early in the pandemic, some governors tried to ban interstate travel from states considered “COVID hotspots,” a futile exercise that was soon abandoned. There was practically no case law.

More generally, the right of Americans to travel interstate in the United States has never been substantially challenged or legally restricted. In 1941, the Supreme Court declared unconstitutional California’s restriction on the migration of Okies, whose work is famous in John Steinbeck’s classic The Grapes of Wrath. Judge William O. Douglas called “the right to free movement” a “right to national citizenship” and migrants’ rights were protected under the Commerce Ordinance.

The Privileges and Immunities Clause protects the rights of US citizens, each of whom is also a citizen of a state, from discriminatory treatment under the laws of another state. In a 1985 case, the Supreme Court held that the Privileges and Immunities Clause prohibits discrimination against a non-resident unless (i) there is a substantial reason for the difference in treatment; and (ii) discrimination against non-residents is essential to the purpose of the state. In deciding whether discrimination has a close or essential connection with the purpose of the state, the court has taken into account the availability of less restrictive means.

The 1999 case Saenz v. Rowe elaborates further: Judge John Paul Stevens argued that the right has three components: (1) the right to enter and leave another state; (2) the right to treat a welcome guest during a temporary stay in another state; and (3) the right to treat other citizens of that state for those travelers who choose to become permanent residents.

The right to travel has also been theorized based on a dormant commerce clause that prevents states from discriminating against or unduly burdening interstate commerce.

Thus, the starting point is that freedom of movement within and between states is protected by the constitution.

Twenty-six states are likely to ban abortion now that Dobbs has made his decision. Thirteen accepted…

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