WASHINGTON — Judge Brett M. Kavanaugh signed recent majority opinion which overturned Roe v. Wade. He also issued a 12-page concurring opinion, writing only for himself. He wanted to discuss, she wrote, “the future implications” of the decision.
“Some of the other abortion-related legal issues raised by today’s decision are not particularly difficult as a constitutional issue,” he wrote. “For example, can a state prohibit a resident of that state from traveling to another state for an abortion? In my opinion, the answer is based on the constitutional right to interstate travel.”
A few hours later, little royprofessor of law at the University of California Hastings School of Law, pointed out a bit of irony on Twitter: “Justice Kavanaugh votes to strike down abortion protections because they are not specifically mentioned in the Constitution, and then his agreement is based on an ‘unwritten constitutional right to travel interstate.’”
In fact, he will look in vain for the word travel in the Constitution, just as he will not find the word abortion. And while some form of constitutional right to travel is almost uniformly accepted, the Supreme Court has struggled to say exactly where to find it or how to precisely define it.
“We do not need to identify the source of that particular right in the text of the Constitution,” Justice John Paul Stevens wrote in a 1999 decision of the “right of a citizen of one state to enter and leave another state”.
Similarly, Judge William J. Brennan Jr. wrote for the court in 1969 that “we have no occasion to attribute the source of this right to travel interstate to a particular constitutional provision.”
Justice Kavanaugh, for his part, cited no precedent or constitutional provisions for his statement that a state may not “prohibit a resident of that state from traveling to another state for an abortion.”
The real-world issue, in any case, is not whether women seeking abortions will be stopped at the state line, but what happens next: to the women, to those who helped them travel, and to out-of-state abortion providers.
those questions, a timely draft article cited in that dissent, present a complicated and controversial set of issues. The article, “The New Abortion Battleground,” to be published in The Columbia Law Review, was written by three law professors: David S Cohen from Drexel University, Greer Donley from the University of Pittsburgh and Rachel Bouche from Temple University.
The prospect of states trying to stop abortions beyond their own borders is not farfetched, Professor Rebouché said.
“We should be concerned that states start throwing everything against the wall to see what sticks,” he said. “There is an unknown universe of what is to come.”
Missouri lawmakers have twice considered, but have so far failed to adopt, bills that would restrict residents’ ability to obtain abortions in other states. the most recent of them it borrowed from the innovation of the Texas law that succeeded in banning most abortions in that state after six weeks of pregnancy, 10 months before the court overturned Roe.
Like the Texas law, the Missouri bill relied on private enforcement through civil lawsuits, shielding it from many legal challenges. Anti-abortion groups have also written model laws that reach across state lines, and abortion groups fear a wave of such laws.
Even the prospect of such statutes seems to have had a chilling effect. In Montana, for example, Planned Parenthood clinics recently said they would require proof of residency for women seeking abortion pills.
“It’s going to get incredibly messy and complicated,” Professor Donley said, adding that Judge Kavanaugh’s statement “offers literally no protection” to out-of-state doctors and clinics who perform abortions on women from states where the procedure is illegal.
Justice Kavanaugh’s description of the scope of the right to travel, which responded to a question in the dissent, was strangely limited, he said. Seth KreimerProfessor of Law at the University of Pennsylvania and author of two foundational law review articles exploring the right to travel in the context of abortion.
The right to interstate travel, he said, “is pretty solidly embedded in the constitutional structure and long-standing constitutional practice.” But that is only part of the puzzle.
“Read carefully,” Professor Kreimer said of Judge Kavanaugh’s statement, “it may not even suggest protection from prosecution for the resident upon her return, or seek to penalize doctors in sanctuary states, either through prosecution or actions for damages.”
If Justice Kavanaugh had wanted to cite a Supreme Court precedent that seems adequate and broad, he could have chosen Bigelow vs. Virginiaa 1975 decision that overturned the conviction of a newspaper publisher who ran an ad in Virginia about abortion services in New York when abortions were illegal in Virginia.
The case revolved around the First Amendment, but the author of the majority opinion, Justice Harry A. Blackmun, also raised some broader points.
“The Virginia Legislature could not have regulated the advertiser’s activity in New York, and obviously could not have prohibited the activity in that state,” he wrote. “Virginia also could not prevent its residents from traveling to New York to obtain those services or, as the state acknowledged, prosecute them for going there. Virginia had no authority to regulate services provided in New York.”
Judge Kavanaugh’s statement was much more limited, Professor Kreimer said. “Kavanaugh has not pledged to protect anything beyond the ‘trips,'” he said. “So while strong protection might emerge, it’s not an outcome one can rely on.”