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Federalism

Can States Ban Residents From Getting Abortions in Other States, if Roe v. Wade is Overturned?

The answer is probably "no." But the federal government could more easily ban such transactions.

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In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)

 

If, as seems likely, the Supreme Court overrules Roe v. Wade, some conservative states may not only restrict abortions within their borders, but also try to bar residents from traveling out of state to get them. If that happens, there is a good chance courts will declare such laws to be unconstitutional. There are at least three strong constitutional arguments against them.  A federal law banning interstate travel for the purpose of getting an abortion would likely fare better in Court, however.

The most obvious rationale for challenging a state-law abortion travel ban is the Dormant Commerce Clause, which forbids state regulations that specifically restrict interstate commerce or discriminate against it. I am not an expert on the ins and outs of the Supreme Court's complicated jurisprudence in this field. But it seems to me that a ban on traveling out of state to engage in a specific type of economic transaction is a pretty obvious violation of the DCC. Traveling to get an abortion is pretty obviously interstate commerce, even under a relatively narrow definition of the term "commerce" - at least if the provider gets paid for its services (as is likely true in the vast majority of cases).

To be sure, states can ban people from bringing in out-of-state products that are banned within the state. For example, a state where marijuana is illegal can ban its importation from elsewhere. But no such importation of contraband occurs when the state government bars residents from getting abortions that are entirely administered outside their territory. Merely being a woman who is not pregnant is, presumably, not going to be made illegal (and such an absurd law would be unconstitutional, as well).

Barring interstate travel to get an abortion is more like a state criminalizing residents who travel to use marijuana in another state, rather than those who buy it in the latter location and then bring it back home. If the Dormant Commerce Clause forbids state laws barring residents from traveling to use marijuana in another state (or alcohol or any other product that might be forbidden in their home state), then the same goes for travel for the purpose of getting an abortion.

Some conservative jurists, such as Supreme Court Justices Clarence Thomas and the late Antonin Scalia, have argued that the Dormant Commerce Clause doctrine lacks originalist support and should be abolished. If they get their way, the Clause would not constrain state abortion travel bans - or anything else. But I don't think there is anything close to a majority on the Supreme Court in favor of that position.

A second potential line of attack on state abortion travel bans is that states lack the authority to regulate activity that takes place beyond their borders. This is often treated as a violation of the Due Process Clause of the Fourteenth Amendment, but can also be seen as an inherent limitation on state sovereignty. That sovereignty is territorial. State A only has jurisdiction over activity that takes place on its own territory, not that of States B and C. To be sure, things become more complicated if activities undertaken in B have a direct impact on the territory of A. But, in this case, an abortion conducted in B does not in fact threaten any legal rights of anyone located in A at the time, or inflict any kind of tangible harm on them at all.

If state sovereignty is broad enough to criminalize almost any activity residents engage in beyond its borders, then the state could potentially criminalize travel for a vast range of purposes. It could obviously, for example, criminalize travel for the purpose of consuming a product banned within its own territory. Thus, a state that bans marijuana could forbid residents from traveling to use it in another state. If a state bans a type of gun, it could forbid residents from using that type of weapon elsewhere. Even if the activity in question were not illegal in the would-be travelers' home, perhaps the state could ban it nonetheless. For example, perhaps Massachusetts could ban residents from going to New Hampshire to buy products that the latter (which has no sales tax) taxes at a lower rate than Massachusetts does.

Finally, state abortion travel bans are open to challenge because they violate the constitutional right to travel. The Supreme Court has recognized a constitutional right to travel between states since before the enactment of the Fourteenth Amendment (the Court ruled that it was a background structural element of the Constitution), and more recent precedent has also held that there is a right to travel under either the Due Process Clause or the Privileges or Immunities Clause of the latter amendment.

The Supreme Court's right to travel precedents focus on categorical bans or restrictions on entry and exist, such as exit taxes, constraints on the entry of indigent people, and - most controversially - limitations on new residents' eligibility for welfare benefits. These cases don't directly consider limitations on the reasons why people travel, such as - in this case - getting an out-of-state abortion.  But if the right to travel doesn't bar states from penalizing people who travel for the purposes of getting an abortion, states could potentially severely undermine the right by punishing people for all sorts of other travel. The same logic would apply to travel for the purposes of consuming goods and services the state government disapproves of (marijuana, alcohol, medical treatment of various kinds), working for entities the state government objects to (e.g. - red states might disapprove of travel to provide services to blue state governments and vice versa), and so on.

Thus, I think a right to travel worthy of the name should bar states from banning travel for the purposes of getting an abortion out of state - or consuming any other good or service there, so long as the product in question isn't brought back to the resident's home state.

As in the case of the Dormant Commerce Clause, there is a distinction here between traveling for purposes of consuming marijuana in another state, and bringing the marijuana back home. Abortion, by definition, is a service that is entirely "consumed" on site, and therefore cannot be brought back home in the way drugs or alcohol can.

Admittedly, there are few, if any, precedents on the books considering the constitutionality of anything closely similar to a state abortion travel ban. But the case against it seems strong on the basic logic of all three of the above theories. Allowing states to impose abortion travel bans would be hard to do without also giving states broad power to restrict travel by residents for a wide range of other purposes. That reality should incline courts towards striking down these laws.

I recognize, however, that there is considerable uncertainty about what courts will actually do here. In an important new Columbia Law Review article, legal scholars David S. Cohen, Greer Donley, and Rachel Rebouche argue that the uncertainty is even greater than I suggest above. I highly recommend their article to anyone interested in these issues.

If I differ with them, it is primarily because of the point that upholding abortion travel bans would severely undermine all three of the above constraints on state extraterritorial jurisdiction, even in cases far removed from abortion. But it is possible that clever lawyers will come up with new ways to distinguish abortion travel bans from other extraterritorial state regulations.

Potentially, the federal government could also restrict interstate travel for purposes of getting an abortion. For example, it could pass a law barring medical facilities from performing abortions for residents of states where the abortion in question would be illegal.

If that happened, the resulting regulations would be far less open to challenge than state laws would. The Dormant Commerce Clause obviously doesn't constrain Congress. It could easily regulate all or most interstate abortion transactions using its power to regulate interstate commerce. Similarly, there are no territorial limits on the federal government's jurisdiction within the United States.

Congressional regulations could perhaps still be constrained by the right to travel. But even that is, I think, less likely to be applied against Congress by courts than against the states.

However, there are serious political obstacles to enacting federal abortion restrictions, even if the Republicans regain control of Congress. They include - among other things - the opposition of moderate and pro-choice GOP members of Congress, such as Senators Susan Collins and Lisa Murkowski, and the need to abolish or restrict the filibuster (which GOP Senate leader Mitch McConnell has vowed never to do, including for purposes of legislating on abortion). Of course, McConnell could potentially break his pledge, or a future Republican leader might take a different view. But McConnell did retain the filibuster for policy throughout his time as Senate Majority leader under Trump, even when getting rid of it might have helped the GOP achieve major legislative goals, such as repealing Obamacare.

Legal issues aside, abortion travel bans might be very difficult to enforce, whether enacted by state governments or by Congress. Enforcing authorities are likely to face many of the same obstacles as they do in trying to eliminate other black markets. Consider, for example, the history of the War on Drugs, which has noticeably failed to suppress the illegal drug trade, or even come close to doing so.

In addition, blue states have begun to adopt laws denying cooperation to other states seeking to enforce abortion travel bans, and more such laws are likely to be enacted in the future. They would likely react similarly to a federal ban, which they would have a right to do under the Supreme Court's anti-commandeering precedents, which bar the federal government from requiring state and local officials to help enforce federal law.

The anti-commandeering doctrine has protected conservative states that refuse to help enforce federal gun regulations, and liberal immigration "sanctuaries." It should work the same way for potential abortion "sanctuaries."

Without cooperation from destination states, abortion travel bans will be even more difficult to enforce. That would limit their effectiveness even if courts ultimately uphold them.

That said, such bans would likely inhibit at least some interstate abortion travel. And, even if their effectiveness turns out to be severely limited, their enactment would raise important constitutional issues. If upheld by courts, they would open the door to a wide range of other state controls over interstate travel. Hopefully, that troubling scenario will be avoided.

UPDATE: I have made a few minor additions to this post.

UPDATE #2: For what it is worth, I support co-blogger Eugene Volokh's proposal for a federal statute protecting the right to interstate travel against state-government interference. I think Congress has the authority to enact such a law (at least as to the vast majority of possible applications) under a combination of its powers under the Commerce Clause and Section 5 of the Fourteenth Amendment. But, at least for now, I am skeptical that such a proposal is politically feasible. Unless and until something like it gets enacted, the issues discussed in this post will be relevant in a post-Roe world.

NEXT: Is It Unconstitutional for Laws to Be Based on Their Supporters’ Religiously Founded Moral Beliefs?

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  1. I noticed something interesting in Prof. Somin's arguments. The Dormant Commerce Clause and Right to Travel seem only loosely based on the text of the Constitution. Rather, they are based on the Court reading between the lines in the past regarding very different issues than abortion. I guess that is a fine thing to do in some cases at least.

    1. Well, you are almost there. That's a reason why this particular Supreme Court would uphold such a ban in my opinion. For better or worse, this Court does not seem to take precedent as much of a restraint on their decisions. I presume Professor Somin's analysis is right but don't know for sure - and I have actually litigated to victory a dormant commerce clause case (which had right to travel issues as well but were not addressed) up to the Ninth Circuit where a statute was found unconstitutional as applied to my client, but this particular issue seems more complex.

    2. "seem only loosely based on the text of the Constitution"

      Like most Supreme Court doctrines.

      1. It's almost as if, when the founders wrote that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", they had a judicial power in mind of the form that American courts had exercised it previously, i.e. using the common law method...

        1. Interesting. Seems odd then that they bothered to write it all down in a Constitutional document rather than leave themselves with an "unwritten" one a l'anglaise*. Also when did they hit upon the idea of Congress having legislative powers to write statutes ? Presumably the English Parliament had never had that idea itself.

          * of course it's a myth that the English Constitution is unwritten. It's mostly statutory, written in a load of different Statutes passed over the centuries.

  2. Professor Somin, an interesting legal question. I just don't know of any governor or state legislature even contemplating something like this (meaning, written legislation to be voted upon in committee or the floor). I suppose there is always one, but I don't see a state even trying something like this. Were there laws on the books 'pre Roe' with this kind of ban? Anywhere?

    1. The "Pre Roe" world of abortion legislation was very different then the last fifty years for many reasons, and whatever comes next will be different from both.

      For one thing, abortion just wasn't as much a hot-button issue pre-Roe. People's opinions calcified, and became partisan, after Roe, not before.

      That said, some states are *already* talking about this. Texas's
      "bounty" law arguably already does this, allowing civil cases against people that help transport and finance a woman's abortion. Being used for an abortion that happened in California isn't unexpected.

      Then you have states like Missouri that are already working on legislation in anticipation of the decision being made official after last week's leak. Other state legislators are openly talking about this.

      For that matter, last week Idaho was pushing an unrelated but similar-in-intent law regarding trans care for minors that would make it a felony to take your teen out of state for their hormone prescription. Passed one of the Idaho state houses, waiting in the other.

      So yeah, this may not have been a thing pre-Roe. Neither was 24-hour "cooldown" laws, requiring women to take the first-of-two pills with a doctor present, banning the shipment of medication abortion drugs in the mail.

      And that said, you know what *was* a law pre-Roe? Prohibition of birth control. And whataya know, even though Griswold v. Connecticut wasn't over-turned (and Alito was careful to pretned he wasn't aiming a gun at it) in Alito's draft, some state legislators are already talking about banning *that* too: Louisiana and Missouri have book looked at laws banning IUDs in the past two weeks.

      So these questions aren't un-prompted. These questions are a direct response to conservative law-makers talking about what they're hoping to do and, in some cases, have already started work on.

      1. "People's opinions calcified, and became partisan, after Roe, not before."

        Supreme Court meddling does lead to that.

        1. That didn’t happen after Obergefell and Brown v Board of Education.

          1. That didn't happen after Brown v. Board of Education? Ever hear of the doctrine of massive resistance?

            Brown engendered a stronger backlash than probably any other decision of the twentieth century.

            1. Obviously the South didn’t want to comply but maintaining the status quo isn’t “backlash”. And by the 1970s in Texas suburbs and Atlanta suburbs and North Carolina suburbs and Florida people from all over the world were relocating to that part of the South to start families and make a good life and segregation stopped being an issue. The GOP dominating the South has to do with segregation no longer being an issue and so by 1980 it was no longer a national issue as Ford lost because he was pro-civil rights and then in 1988 when Democrats ran the southern strategy with the segregationist Lloyd Bentsen as the VP it fell flat.

              1. "Obviously the South didn’t want to comply"

                Boston ain't the South. They sure as hell did not want to comply. Chicago also.

        2. Like Brown v. Board?

      2. Why was that, EsherEnigma? = For one thing, abortion just wasn't as much a hot-button issue pre-Roe. People's opinions calcified, and became partisan, after Roe, not before.

        I would like to get your thoughts on that. Why afterwards, and not before? What were they saying at the time. I was a child when RvW was decided.

        1. No.

          That it happened is sufficient for my point. Why it happened is not interesting to me (at least not in this forum).

          But I'm sure there are many people --who you are probably closer to ideologically already-- who would be happy to speculate on the motivations behind the cultural shift. Many have written books.

          1. Fair enough...hope you are enjoying GA.

            1. In my experience, people don't post on Reason because they're enjoying things.

              1. If people truly believe life begins at conception isn’t having embryos frozen in IVF clinics a problem?? Can we freeze babies?

                1. I'm not a lawyer, but intuitively I'd say that it would remain legal to set the air conditioning to any temperature that isn't harmful to the baby's health (or uncomfortable to the point of abuse). An IVF frozen embryo is neither uncomfortable nor harmed by the temperature (as far as I know. I'm not that familiar with the procedure. If enough embryos are harmed by the freezing process then I guess someone could try to call it reckless endangerment or something).

                  But I've heard that IVF might become illegal in some states because of the extra frozen embryos that have to die at some point.

                  1. IVF is very common now, guess who is adopting embryos—gay married couples. It is one of the more hilarious developments because liberals like me scoffed at the notion of adopting embryos (snowflake babies iirc) while conservatives thought gay marriage would destroy the family.

  3. Let's say that I agree with my brother to take my wife on a vacation to the Grand Canyon and throw her in. Can New Jersey prosecute me for conspiracy to commit murder, even though the actual murder took place in Arizona? The conspiracy was formed in NJ.

    What if throwing people into the Grand Canyon were legal in Arizona? Would that change NJ's ability to prosecute me for conspiracy?

    1. Would you prosecute the Santorums for reckless endangerment to a child for having unprotected sex over 45 years of age when only two things will happen—an egg will be fertilized and the embryo will die a quick painless death OR a child will be born with severe birth defects.

      1. Hush; the grownups are talking.

        1. So you wouldn’t prosecute a parent who allows a toddler to run into a street?? Are you an imbecile?

          1. "So you wouldn’t prosecute a parent who allows a toddler to run into a street?? Are you an imbecile?"

            Not enough you stuck one foot into your mouth, you have to go ahead and stick the other foot, both arms and your rear-end, too?

            1. Hey dummy—go to an IVF clinic and protest about embryos being frozen in perpetuity or discarded. You dumb motherfucker!

        2. :thumbsup:
          Good one. I may plagiarize that.

          1. It was good. I am stealing that one, too.

            1. I can tell you are not a lawyer. You use a one syllable word (steal) when I used a three-syllable one (plagiarize).

              1. Yeah, I am just a colonial philistine. 🙂 LOL

                1. Not at all. Strunk and White favor your approach. (Do they still use that book?)

    2. Under the hypothetical that throwing your wife into the Grand Canyon, I’d say you’re safe in New Jersey. Conspiracy is charged when done pursuant to a crime. The “conspiracy” resulted in no crime.

      1. That is incorrect: the crime of conspiracy is complete as soon as the agreement is made (or, in some cases, as soon as an overt act is performed). It does not require the commission of the contemplated crime.

        1. I think the question was regarding there being a criminal conspiracy when the act wouldn’t be illegal in the jurisdiction where it took place. I would think that a person cannot be guilty of conspiracy if the act being planned is not against any law. Keep in mind that this isn’t about jurisdiction itself. I’m pretty sure that the U.S. can make it illegal to plan to violate the laws of another country. The U.S. would have jurisdiction to prosecute the crime committed abroad, but engaging in planning that crime that takes place within the U.S. could be prosecuted, correct? (IANAL caveats implied)

          So the question is what changes in that scenario when the act being planned isn’t illegal where it is being planned to occur.

      2. It is an absolute defence to a murder conspiracy charge in NJ that the victim was gonna rat the conspirators out to the Feds - provided the murder is committed within a 10 mile radius of any exit from the NJ turnpike. So they can be prosecuted in NJ.

    3. No.

      But let's use a more realistic analogy.

      Let's say you agree with your wife to vacation to Nevada, and arrange to sell her services for sex with her permission. Since prostitution is legal in Nevada, can NJ prosecute you for conspiracy?

      No.

      1. Well casinos are illegal in many states. Is planning a trip to Vegas a conspiracy?

        1. Given that travel companies advertise weekend jaunts to Las Vegas throughout the country, it would be surprising if it was.

      2. Since prostitution is legal in Nevada, can NJ prosecute you for conspiracy?

        No.

        Why not? Or is your evidence simply that NJ can't prosecute that conspiracy as a practical matter? Or that they haven't, so far, shown any interest in doing so?

  4. A good federal law would be civil and criminal bans on abortion providers in state A from performing abortions on residents of state B in violation of the laws of B. Big abortion groups like Planned Parenthood couldn't violate such a law, even if it could be circumvented by individual doctors willing to risk their licenses or freedom. Obviously, the criminal ban would be useless with a Democrat in the White House but you could also structure a civil law to permit private causes of action.

    A ban on public corporations from financing an employee's travel to get an abortion would be useful too.

    I don't see why such laws would be unconstitutional.

    1. Whoa, whoa, whoa....how would something like that even work, Bob? How would the abortion provider know where the woman came from....they could choose to simply not ask where the woman is from, or the woman could lie about where she is from, and all would be good under your hypothetical federal law, right?

      When you say ...you could also structure a civil law to permit private causes of action you're thinking about what Jonathan Mitchell designed with TX-SB8?

      1. Pro-life legislators have proven that they're clever enough to require doctors to lie to patients, to do pointless exams, to wait half a week after the first visit, to sit there and watch the woman take a pill (when she isn't even going to take the second pill till she gets home), to jump through all sorts of absurd hoops.

        So in this hypothetical, I don't think "and the doctors have to ask" would be an unlikely requirement.

        Which is to say... pro-life legislators have proven themselves quite clever over the years in working around Roe v. Wade. I don't know why you think that cleverness will stop just because they won an important battle.

      2. How does it work for firearms? One has to provide valid government photo identification and truthfully fill out form 4473 under threat of a felony. In general dealers may not transfer any firearm to someone from out of state.

        If that is constitutional for firearms, why wouldn't it be constitutional for abortion providers?

  5. If a state can punish someone for driving two girls out of state and molesting them there (People v. Betts, 34 Cal. 4th 1039 (2005)), it can certainly punish a woman for going out of state for an abortion. Particularly if the home state considers the fetus to be a "person": the woman transported another home-state resident out of state in order to murder it.

    1. Right. There’s plenty of state-law precedent for this sort of thing. Absent Roe v. Wade, abortion isn’t any different.

    2. Unless an abortion, but not child molestation, is "commerce"...

      1. I don't think Congress can ban someone from purchasing something in another state that's legal there but illegal in one's home state. But I haven't looked into it. Have you?

        1. On current case law, I should think they can ban just about anything.

          P.S. I previously misread your earlier comment. I don't think we really disagree here.

  6. The Articles of Confederation had an explicit right to travel, to "free ingress and regress" that was left out of the equivalent section of the Constitution. On the one hand, that's an argument against there being such a right now, but on the other hand, restoring this exact sort of right guaranteed in the Articles but not in the new Constitution could easily by read as one of the few Tenth Amendment arguments that might succeed.

    1. Thanks to sprawl in the Charlotte suburbs one’s next door neighbor can be in a different state. In older cities like Texarkana or Bristol, TN the city planners took the state line into consideration when planning the cities.

  7. While travel is imterstate commerce, abortion itself is not.

    So Congress could pass laws either protecting or prohibiting travel for purposes of obtaining an abortion because it can regulate interstate travel generally.

    But there is no violation of the dormant commerce clause. Since abortion itself isn’t commerce, the Dormant Commerce Clause doesn’t cover it.

    1. The federal ban on so-called partial birth abortion requires, as an element of the offense, that the prohibited abortion be "in or affecting interstate or foreign commerce".

      1. But the Dormant Commerce Clause is far more limited than Congress’ direct power. It applies to actual articles of commerce, but not to things that might indirectly affect actual articles of commerce.

        Sure, Congress can pass a law regulating abortions if a knife that once passed through interstste commerce was used. But abortion itself is not directly regulable. Congress has the power to regulate knives, not the abortion itself. That’s what it’s regulating by its “abortion” law. Unless a state passes a law saying you can only use knife manufactured in the state to do an abortion, the Dormant Commerce Clause doesn’t apply.

        1. Now that is a distinction without a difference. "In or affecting interstate commerce" are the code words which allow anything to be regulated under the commerce clause.

    2. While travel is imterstate commerce, abortion itself is not.

      I don't follow. There are folk making a good living from performing abortions. There's commerce in baby parts. Why do you say abortion isn't commerce ?

      1. Mailing abortifacients across state lines in exchange for money sounds like interstate commerce to me.

        But unless the doc sets up his stirrups directly on the state line, it seems to me that abortion itself is not interstate anything.

  8. Sorry, I’m just not seeing how a state has jurisdiction over what happens outside its borders. There’s a long tradition of people traveling out of state to do things they can’t legally do at home, and the right to do so strikes me as a fairly basic American right.

    1. There's also a tradition of people traveling outside of the country to do things they can't legally do here, but the U.S. asserts the sovereign power criminalize plenty of that sort of extraterritorial conduct. Why would the sovereign power of a state have comparable reach?

      1. That's what I was going to ask about.

        I'm not a lawyer, so since Ilya didn't bring that up I assume Federal law can constrain U.S. citizens abroad in ways that individual states cannot.

        But if there were a federal law banning abortion I assume the Feds could prosecute anyone leaving the country to have an abortion.

      2. And I largely object to the feds doing that as well. But I think the two are distinguishable in that overseeing international commerce is a power the Constitution explicitly gives the federal government.

        1. And so presumably the same principle would apply, if a State Constitution gave the State Legislature power to make extraterritorial laws.

          This extraterritoriality thing is a very weak part of Somin's analysis, precisely because the US is notorious for ignoring the conventions against extraterritoriality.

          1. No, it wouldn't, because being tasked with international affairs, as the federal government is, necessarily involves a certain amount of extra-territorial activity. Plus, under the federal supremacy clause, any provision of a state constitution that conflicts with rights in the federal constitution is invalid.

            1. See my comment yesterday:
              The proposal rushes past a question that so far as I know (without research) is unclear: may a state criminalize conduct by one of its citizens wherever it happens? At the federal level we have a few crimes related to citizenship, not territoriality. Aiding the enemy- it has been at times criminal for an American to purchase and smoke a Cuban cigar anywhere in the world. In addition to being a US citizen, we are citizens of states. Do they have like power? Can NY criminalize my unauthorized alteration of my NY drivers license even if I alter it outside NY? It can tax my income wherever derived because I am its citizen. I've been wondering.

  9. Almost every Supreme Court ruling after 1900 on the subject of interstate commerce is so unhinged as to merit no consideration whatever from the parties. The founders meant to prevent states from erecting barriers to commerce with other states, and to prevent the states from having their own tariffs and barriers to international commerce. All manner of nonsensical excursions from common sense have extended the grasp of the federal government on the simple affairs of men without any constitutional foundation. It is long past time to put this toothpaste back in the tube.

    1. But how are the corruptions going to get in the way then? Your spouse won't mysteriously become an investment genius unless you can block stuff and sling trillions so your cronies can take an infinitesimal slice and get rich.

      Won't someone think of the kleptocrats? Winning elections is what this is all about.

  10. As a New York lawyer, my thoughts on this topic continually go back to the New York Penal Law which includes jurisdictional provisions that make clear that wholly out-of-state conduct can be prosecuted in New York. For example, if a NY court issues an order of protection prohibiting a defendant from contacting a particular person and the defendant violates the order in another state, NY still has jurisdiction over the contempt because of Penal Law 20.00(2) (which basically says that the out-of-state conduct has, and was intended to have, a particular effect on NY--here, violating the NY court order). An industrious anti-abortion state could certainly craft a statute that provides that the State has an inherent interest in the protection of unborn life that is present in its state and aborting the fetus in another state has a particular effect on the anti-abortion state. The State could even provide extra notice (such as on government signs when people enter the state), though I don't think that would be necessary to satisfy the law.

  11. This originating post is close enough to my Monday morning post on Facebook (or vice versa), for me to repost my here. Apologies if it is deemed too far afield...

    A Proposal (and/or a question)

    Re: Dobbs and the future of abortion in the United States (assuming "the 'essential' Dobbs draft" gains a majority), is there nothing that Congress can do?

    I confess that I am very unclear as to why the Dems have apparently set themselves upon a path to failure. It seems wholly unlikely that Roe (/Casey) can actually be codified, even absent the issue of the filibuster. Yet the Dems are going to give it the old college try, nonetheless -- responding to their base (and beyond) and virtue signalling (and doing the right thing, of course).

    But is there nothing -- in the vein of affirmative, successful, legislative action - that ???????????? be done?

    It seems to me that if one cannot "undo" Dobbs in its entirety, that one still is beckoned to undo or to limit it so far as possible.

    In this vein, it seems to me that of the many consequences that may flow from Dobbs, are the measures which States may take to attempt to negate the laws of other States. E.g., will Alabama attempt forbid its citizens from obtaining a perfectly legal abortion in New York (under NY law)?

    Whether or not, at the end of the day, this would survive "constitutional muster", would it not be better to have "codified against" such laws, as a federal matter?

    The same (perhaps - and for example) as far as allowing (non-abortion) State A to prosecute (or sue) folks residing in other States, who encourage persons in State A to have an abortion or who provide abortifacients to citizens of A (either while such citizens are physically present in A, or not)?

    Why is this not under discussion at present? Have I simply missed it? Notwithstanding the broad support for abortion in the US, is this not feasible as a legislative matter? Would such legislation be doomed constitutionally?

    I assume that it is doable legislatively and constitutionally, but even if that were pretty clearly not the case, at the very least legislative hearings and/or popular discussion of such legislation would tend to expose the dissenters to scrutiny . . . And purely "politically", might that not be advantageous to the Dems in the upcoming elections? If so, the time to do this is now. I reckon.

    1. One suggestion. A federal law prohibiting state criminalization for possession of any substance which can legally be delivered by the Post Office. Coupled with a federal law explicitly mandating the Post Office to deliver Plan B everywhere.

      Seems like the commerce clause ought to empower both parts.

    2. Although Congress can’t prohibit abortion directly, I suspect Congress’ very broad indirect commerce powers enable a well-crafted statute to either protect or prohibit most abortions, perhaps nearly all, depending on what Congress wants to do, Various articles used in abortions generally pass through interstate commerce.

      Congress could certainly either protect or prohibit traveling for purposes of an abortion if it wants to. Regulating interstate travel involves a direct use of the commerce power. And as Stephen suggests above, it could either protect or prohibit sending abortifacients through the mail etc. It could add them to the list of illegal drugs if it wants to. It could protect them if it wants to.

      C

  12. "try to bar residents from traveling out of state to get them."

    Really? Then how and why can states such as Illinois and California legally bar their residents from going out of state to purchase ammunition (which certainly falls under the 2nd Amendment protections).

    1. I haven't read the relevant statutes, but my suspicion is that they aren't prohibited from buying ammunition out of state so long as it stays out of state. It's importing it into the state that's the problem.

  13. "Can States Ban Residents From Getting Abortions in Other States, if Roe v. Wade is Overturned?"

    You say no. Try addressing state laws prohibiting transporting a minor out of state for the purpose of sex. Which apply even if the sex would be legal in the destination state because of age of consent differences.

  14. Thinking of guns: as a Hawaii resident I am prohibited by state law from acquiring a gun while in another state unless I comply with Hawaii’s onerous state law requiring providing all information about the gun -make, model, serial number, caliber, etc- to the Honolulu Chief of Police in order to get a signed permission slip, and after acquiring the gun I must register it. That is the case even if I intend to keep the gun in another state, never bringing it into the state of Hawaii. In fact, in order to comply with the law I would have to bring it into the state.

    Is this an unconstitutional requirement?

    1. PenrodJ, is it a successful requirement? Where does Hawaii stand relative to other states on gun violence?

      1. Domestic flights are the death of the bearing arms/carrying guns…if the federal government can limit guns on domestic flights then they can limit guns in school zones which means NYC can effectively ban carrying guns.

  15. Potentially, the federal government could also restrict interstate travel for purposes of getting an abortion. For example, it could pass a law barring medical facilities from performing abortions for residents of states where the abortion in question would be illegal.

    There is an interesting complication hiding in that one. Consider for comparison divorce tourism. A party establishes residence in a state with a short residency requirement, then gets divorced there. The divorce is honored everywhere, right?

    Problem is, if abortion is the issue, even a short 6-weeks residency requirement may prove unworkable. Should states which wish to support abortion rights consider a 1-week residency requirement, to frustrate anti-abortion states which demand that their laws apply even out of state?

  16. And then there is the State of Washington. WA legalized abortion in 1970 through Referendum 20. Ref 20 includes a clause creating a 90 day residency requirement for any woman seeking an abortion. It will be interesting to see if that stands.

    1. Why wouldn't it? What would be the DCC problem with that?

  17. "A federal law banning interstate travel for the purpose of getting an abortion would likely fare better in Court, however."

    That's a really damning thing to say about the Supreme court, but it's probably true.

  18. "(d) Nothing in this section shall authorize a person to bring from one State to another State any goods the possession of which is criminal in that other State."

    It appears to me that Eugene's proposal would repeal 18 U.S. Code § 926A - Interstate transportation of firearms.

    He'd make it illegal to take into any state anything that was contraband within that state. Even setting aside the serious constitutional issues around making firearms "contraband", can states legitimately ban transit from one place where an article is legal, to another place where it is legal?

    I don't think Eugene has really thought through the implications of this element of his proposal.

    1. See, Brett, that's another example of you not understanding how to read a statute. (There's no shame in that; the shame is that you think you do.) Nothing in the quoted language repeals anything.

      All it does is say that you can't cite that particular section as authorization for you to bring firearms in.

  19. An excellent piece and with fascinating references, especially the Verdict article. But beyond the DCC is there anything limiting a state from trying to extend its jurisdiction to cover actions that take place in another state?

  20. I would not worry about this......even if the laws were upheld as said in the article they would be next to impossible to enforce.

  21. Wonderful arguments about legality of out-of-state abortion bans. There is another one: Try enforcing them.

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