Two years ago, when Dobbs' majority returned abortion legislation to the states, it was not difficult to predict that access to abortion procedures would be eliminated across the country. But anti-abortionists, who have succeeded in walling off vast swaths of the Southeast and Great Plains, have gone one step further by criminalizing travel to places where abortion is legal.
In Republican strongholds like Alabama, the constitutional right to travel is under attack. Alabama, already in the spotlight for its state Supreme Court's IVF decision that introduced the concept of embryos as “children outside the womb,” would put a retrograde stamp on the right to travel for this medical procedure. The aims. In one of the first salvos in what is expected to be a long battle, U.S. District Judge Myron Thompson announced Thursday that Alabama Attorney General Steve Marshall has announced that the state will pushed back on a lawsuit brought by reproductive health care providers seeking relief from the threat of prosecution. I am about to undergo an abortion. Yellowhammer Fund v. Marshall hinges on whether organizations and health care providers that help women travel face prosecution in Alabama, which bans travel.
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In allowing the case to proceed, Thompson rejected the state's argument that it could criminalize abortion-related activities without infringing on travel rights. At the moment, the Yellowhammer Fund is sounding a kind of alarm bell. The right to travel may no longer be sacrosanct in the coming years, as anti-abortion advocates inch toward the nationwide ban they want.
Abortion opponents seek to restrict freedom of movement after Idaho became the first state to issue travel rights cards that make it a crime to assist a minor cross state lines to secure an abortion. and is resorting to ever more rigorous attempts. Texas is at the forefront of the crackdown. A $10,000 reward will be awarded to individuals who help identify abortion accessories and successfully prosecute them. The state's reddest cities and counties are developing travel bans, and a man will be investigated for his ex-partner's trip to Colorado for the process.
How would a judge rule on the right to travel if Yellowhammer or a similar case reached the Supreme Court? Mr. Dobbs chipped away at the right to privacy. The right to privacy is a countless right that is not explicitly mentioned in the Constitution but stems from decades of Supreme Court precedent rooted in five different cases. By contrast, Supreme Court Justice Brett Kavanaugh signaled support for the right to travel in Dobbs. “[M]Does a state prohibit residents of that state from traveling to other states to obtain abortions? In my opinion, the answer is no, based on the constitutional right to interstate travel. ”
Thompson took Kavanaugh's lead and argued that the Constitution “unequivocally and unmistakably guarantees and protects the right of citizens of one state to move to another member state for the purpose of engaging in lawful commerce.” He cited another Supreme Court precedent. A trade or business free of sexual abuse. ”
Idaho became the first state to issue right-to-travel cards, making it a crime to assist a minor in crossing state lines to secure an abortion.
Mr. Thompson also outlined the deep historical roots of the right to travel, dating back to Magna Carta and the Articles of Confederation. “Indeed, travel has consistently been protected so that people are free to engage in lawful activities while traveling,” Thompson wrote.
However, the right to travel, like the right to privacy, is not explicit. In a 2022 Bloomberg Law article, three law professors (Naomi Kahn of the University of Virginia, June Carbone of the University of Minnesota, and Nancy Levitt of the University of Missouri-Kansas City) argued that the right to travel is a “subject matter. “It's happening,” he explained. An explanation of the long-standing precedents deduced from the structure of the Constitution and related rights, such as the promotion of interstate commerce and the granting of privileges and immunities. ”
“The bottom line is that the only difference between the right to privacy and the right to travel is how many of the current Supreme Court justices still support privacy,” they added. If Mr. Kavanaugh consents and Chief Justice John Roberts, who submitted the consent form to Mr. Dobbs, joins him, the right to travel would remain. ”
“But,'' the professors warned, “Mr. Kavanaugh's opinion only establishes a minimum. Missouri, which bans abortion, has no right to abortion for residents of Illinois, where abortion is legal.'' A more complicated issue is whether a person who has an abortion in Illinois and then returns to Missouri can be charged with murder in one state. You can't prosecute people for what happened.”
The Department of Justice issued its own “statement of interest” in Yellowhammer, emphasizing that, following Supreme Court precedent, the Alabama attorney general cannot “criminalize third-party assistance with interstate travel.” However, the Roberts court's often expressed hostility to the high court's own precedent in Roe deserves further attention.
The developments in Alabama overshadowed this week's oral arguments in Matsumoto v. Labrador, an Idaho abortion trafficking case before the Ninth Circuit Court of Appeals. The lawsuit is being fought by the Northwest Abortion Access Fund and the Idaho Alliance of Native Americans against Idaho Attorney General Raul Labrador. The group is seeking a preliminary injunction against a 2023 state law that would make any adult who helps a minor obtain an abortion or abortion drugs in another state without parental consent face human trafficking charges. secured the order.
However, this is a narrower case. According to the plaintiffs, the issue at issue is free speech, not the right to travel, since only travel within the state of Idaho is illegal, but “an unspecified amount of assistance to minors.” be. But if Idaho is successful, it also opens the door for the state Legislature to consider expanding travel restrictions.
Efforts by Republicans to block workarounds of existing state bans are likely to get even uglier. Women are looking for a “navigator” to help them resolve legal and travel issues, offset costs and insurance, and deal with post-procedure issues. Since Roe's death, tech companies such as Amazon and Apple have agreed to offer out-of-state abortion travel benefits, attracting job seekers to help with abortions and the associated travel costs. The number of abortions is increasing, with 1.037 million abortions performed within the formal health care system last year, according to data from the Guttmacher Institute. The highest figure in more than a decade is “almost certainly an underestimate,” the institute said.
“The right to interstate travel is one of the most fundamental constitutional rights,” Justice Thompson said. “It fostered the citizenship of the people, restrained the localism of the states, and was the key to merging the federation of states into a true federal union.” is more concerned with ensuring that human reproductive decisions align with narrow-minded ideological norms that ultimately harm women.
