WASHINGTON — Justice Brett M. Kavanaugh signed the recent majority opinion that overruled Roe v. Wade. He also issued a 12-page concurring opinion, writing just for himself. He wanted to debate, he wrote, “the long run implications” of the choice.
“A number of the other abortion-related legal questions raised by today’s decision aren’t especially difficult as a constitutional matter,” he wrote. “For instance, may a state bar a resident of that state from traveling to a different state to acquire an abortion? For my part, the reply is not any based on the constitutional right to interstate travel.”
A couple of hours later, Rory Little, a law professor on the University of California’s Hastings College of the Law, noted a little bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned within the Structure — after which his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”
You’ll indeed search the Structure in vain for the word travel, just as you is not going to find the word abortion. And though some type of a constitutional right to travel is nearly uniformly accepted, the Supreme Court has struggled to say exactly where to seek out it or precisely easy methods to define it.
“We’d like not discover the source of that individual right within the text of the Structure,” Justice John Paul Stevens wrote in a 1999 decision of “the appropriate of a citizen of 1 state to enter and to go away one other state.”
Similarly, Justice William J. Brennan Jr. wrote for the court in 1969 that “we have now no occasion to ascribe the source of this right to travel interstate to a selected constitutional provision.”
Justice Kavanaugh, for his part, cited no precedents or constitutional provisions for his statement that a state may not “bar a resident of that state from traveling to a different state to acquire an abortion.”
The true-world issue, in any event, just isn’t whether women in search of abortions can be stopped on the state’s border but reasonably what would occur afterward — to the ladies, to those that helped them travel and to out-of-state abortion providers.
Those questions, a timely draft article cited within the dissent said, present an advanced and contested array of issues. The article, “The Latest Abortion Battleground,” which is to be published in The Columbia Law Review, was written by three law professors: David S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh and Rachel Rebouché of Temple University.
The prospect of states attempting to stop abortions beyond their very own borders just isn’t fanciful, Professor Rebouché said.
“We should always be nervous that states will start throwing the whole lot on the wall to see what sticks,” she said. “There’s an unknown universe of what’s ahead.”
Missouri legislators have twice considered, but thus far haven’t adopted, bills that might restrict residents’ ability to acquire abortions in other states. The more moderen of them 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 overruled Roe.
Just 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 drafted model laws that reach beyond state borders, and abortion rights groups fear a wave of such laws.
Even the prospect of such statutes seems to have had a chilling effect. In Montana, as an example, Planned Parenthood clinics said recently that they might require proof of residency for ladies in search of abortion pills.
“It’s going to get incredibly messy and complex,” Professor Donley said, adding that Justice Kavanaugh’s statement offered “literally no protection” to out-of-state doctors and clinics who provide abortions to women from states where the procedure is against the law.
Justice Kavanaugh’s description of the scope of the appropriate to travel, which responded to an issue within the dissent, was oddly limited, said Seth Kreimer, a law professor on the University of Pennsylvania and the writer of two foundational law review articles exploring the appropriate to travel within the context of abortion.
The precise to interstate travel, he said, “is fairly solidly rooted in constitutional structure and longstanding constitutional practice.” But that is barely a part of the puzzle.
“Read closely,” Professor Kreimer said of Justice Kavanaugh’s statement, “he may not even suggest protection against prosecuting the resident upon her return — or in search of to sanction doctors in sanctuary states either by prosecution or damage actions.”
Had Justice Kavanaugh desired to cite a Supreme Court precedent that seems each apt and expansive, he may need chosen Bigelow v. Virginia, a 1975 decision that overturned the conviction of a newspaper editor who published an commercial in Virginia for abortion services in Latest York when abortions were illegal in Virginia.
The case turned on the First Amendment, however the writer of the bulk opinion, Justice Harry A. Blackmun, made some broader points, too.
“The Virginia Legislature couldn’t have regulated the advertiser’s activity in Latest York, and clearly couldn’t have proscribed the activity in that state,” he wrote. “Neither could Virginia prevent its residents from traveling to Latest York to acquire those services or, because the state conceded, prosecute them for going there. Virginia possessed no authority to control the services provided in Latest York.”
Justice Kavanaugh’s statement was much narrower, Professor Kreimer said. “Kavanaugh hasn’t committed himself to protection of anything beyond ‘travel,’” he said. “So, while robust protection could emerge, it’s not an final result that one can depend upon.”