The Volokh Conspiracy

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Justice Kavanaugh on the Right to Travel to Get an Abortion


This is a tremendously important question, as Ilya's and my posts noted in May. Justice Kavanaugh's concurrence in Dobbs today expressly noted:

[A]s I see it, some of the other abortion-related legal questions raised by today's decision are not especially difficult as a constitutional matter. For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.

I expect this is fairly important because I assume that Chief Justice Roberts and the three dissenters (Justices Breyer, Sotomayor, and Kagan) and Justice Jackson, who will replace Justice Breyer, would likely go along with Kavanaugh on this. (Indeed, some of the other Justices in the majority might, too.) It's not certain, of course, especially as to Roberts; still, Kavanaugh's pronouncement here strikes me as highly significant.

And this also suggests that laws criminalizing aiding a woman going out of state to get an abortion would likely be unconstitutional, too, since they would substantially burden the woman's right to travel (just as laws restricting contributions to a political organization substantially burden the organization's right to speak). That's important because there might well be states in which the majority of the public balks at criminally punishing the woman who is getting an abortion, but is willing to punish those who aid her (as well as those who perform the abortion).

I should note, of course, that for many women traveling out of state to get an abortion may be quite burdensome, in money, time, and risk of being found out by family members and others. I expect that there will be charities that will help women out with this, but naturally pro-abortion-rights people won't view that as a fully satisfactory answer (and of course anti-abortion people won't, either). Still, the burden of having to leave one's home permanently, or else risk criminal prosecution when one returns, would be vastly greater.

And as a practical matter, if such no-travel-out-of-state-to-get-an-abortion laws exist in some states and are constitutional, it will create a sharp disincentive for many people (and businesses) to move to those states.

Many a woman, I expect, would be reluctant to move for work or school or other reasons to a state where she knows that, should she feel that she needs an abortion, she would have to leave the state abruptly and permanently. Many a man might have the same reaction on behalf of the women in his family, or for that matter on his own behalf in the event that he at some point gets a woman pregnant and she's inclined to get an abortion but would have to abruptly and permanently leave the state if she is to do so (as would he if he aids her).

Naturally, people who believe abortion is murder, and are confident that they will keep believing this, may be largely unaffected by such considerations. But even in solidly anti-abortion states, there are huge minorities (likely both among long-time residents and new arrivals) who don't take that view.

Many a business might also find it much harder to hire employees, especially ones with specialized expertise that isn't broadly available, if they have to go through the same mental calculus in deciding whether to move to the state. I'm not talking here just of people or businesses who refuse to move to some state to make a political statement: Rather, this relates to simple, pragmatic risk analysis. I hope that these considerations may help push states away from trying to ban traveling out of state to get an abortion, though if Kavanaugh's reasoning does turn into a holding, that problem might be solved.

(Query, by the way, whether Kavanaugh's reasoning would also apply to states making an out-of-state abortion actionable in the woman's home state. Such abortions may already be actionable under the normal wrongful death statutes of a state that defines life as beginning at conception, if a man who impregnated a woman sues her for wrongful death for what the law views as the killing of their baby in another state. But perhaps there may be some constitutional barrier to that sort of claim when the abortion was perfectly legal in the state where it took place.)