The US Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health relegated abortion issues back to the states, leaving “every state free to address abortion as it sees fit.”
There has been a flurry of activity in response, with nine states banning abortion outright, four more with bans set to come within the next month, and eight more states having bans blocked in litigation. Meanwhile, other states are scrambling to further protect access to abortion, including access for those who are from other states.
So what does Dobbs really do? As the dissent charges, it places the court at the “centre of the coming ‘inter-jurisdictional abortion wars’.” for the procedure or when a Kentucky resident receives abortion drugs from a New York doctor.
The Supreme Court will have to decide these conflicts. It can defuse regional conflicts by upholding long-established travel laws, or it can continue the strategy of the Dobbs court and fuel these disputes.
Judge Brett Kavanaugh, in his concurring opinion, suggested that he was open to a truce. He noted that some legal issues related to abortion are not “difficult as a constitutional matter.”
He gave an example: “May a state prohibit a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is based on the constitutional right to travel between states.
Right to Travel Not Explicit in Constitution
Like the right to privacy, which the Supreme Court recognized in 1965 as allowing married couples to use contraception and which formed the basis for Roe, the right to travel is not specifically mentioned in the Constitution, which means the Constitution doesn’t say there is one individual “right to interstate travel”. The right to travel was nonetheless the subject of longstanding precedents arising from the structure of the constitution and related rights such as the promotion of interstate commerce or the granting of privileges and immunities.
In short, this means that the only difference between the right to privacy and the right to travel is how many current Supreme Court justices still support it. To see also : Women in Business: Amy Wenger. If Kavanaugh does so and is joined by Chief Justice John Roberts, who filed consent in Dobbs, the right to travel will stand.
But Kavanaugh’s opinion lays down only a minimum: Missouri, which bans abortion, cannot prevent a resident from traveling to Illinois to obtain an abortion, where abortion is legal.
The more complicated issue is whether a person who has an abortion in Illinois and then returns home to Missouri can then be prosecuted for murder. A state cannot usually prosecute a person for something that happened in another state.
Can the home state charge the friend who suggested the pregnant woman leave the state or the person who delivered the car and drove her to Illinois with aiding and abetting an abortion? Relevant acts took place in Missouri, proposing interstate travel, providing the car and driving to the border. Missouri has even considered legislation to allow lawsuits against an Illinois doctor performing the procedure.
Murder Prosecution?
What about a pregnant person who travels to Illinois to get an abortion pill, uses it legally there, returns home to Missouri and experiences complications. To see also : Office of the Governor | Governor Murphy Signs Protection Laws on Reproductive Health Care and Foreigners Seek Reproductive Care in New Jersey.. Can she electronically consult the foreign doctor who helped her get the abortion pills?
With restrictions on any type of medical care across state lines, an Illinois doctor may be reluctant to offer advice if the woman develops complications after returning to Missouri. And she may be reluctant to consult a Missouri doctor amid concerns she may be suspected of having an illegal abortion.
Any attorney or doctor advising the woman who crosses state lines to request an abortion is also at risk. These professionals are ethically committed to maintaining the health of their patients and putting the interests of their clients first.
Issues to Be Reviewed for Years
We expect the Supreme Court to consider these issues over the next decade. To see also : Sex video games do not harm men or women, according to new research. The question is whether the Supreme Court will remove or uphold another right to women’s assistance – the right to travel.
Affirming it means more than saying that Missouri cannot prevent all women of childbearing age from crossing the Mississippi River into Illinois. After all, the American public would grumble in unison about a traffic jam of this magnitude.
It must mean that women who travel to Illinois, get abortions there and return to Missouri cannot be prosecuted. It should also mean that women anywhere in the country should have access to the medical care needed in a second state to protect their health, regardless of where they receive abortion procedures or abortion pills.
Anything less endangers women’s lives and allows Missouri to station pregnancy-sniffing dogs on its borders, denying women another right, the right to travel.
Meanwhile, more states can do what New York and California did by expanding abortion treatment and protecting providers from out-of-state liability. Even more critically, Congress could enact legislation protecting travel rights for abortion treatments, ensuring that anyone who helps a person access their travel rights can be prosecuted, and providing accurate information about those associated with abortion legal rights first comes protection against changes.
This article does not necessarily represent the opinion of the Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Naomi Cahn is a law professor at the University of Virginia.
June Carbone is a law professor at the University of Minnesota.
Nancy Levitis is a law professor at the University of Missouri-Kansas City.
