By Hannah Rahim
After the Supreme Court eliminated the constitutionally protected right to abortion in Dobbs v. Jackson Women’s Health Organization, right-wing states have begun enacting abortion bans and discussing the possibility of restricting interstate travel for abortion.
Although there is a general presumption against a state’s ability to regulate extraterritorially (i.e., beyond its borders), legal authority suggests that the Constitution does not clearly prohibit a state from regulating abortion travel.
Growing interest in abortion travel bans
Interstate travel can play a key role in expanding or restricting abortion access and therefore has garnered increasing attention following the Dobbs decision.
In 2021, Missouri lawmakers attempted to include in an abortion bill a provision that would have made it unlawful for someone to assist a Missouri resident to obtain an out-of-state abortion. In 2022, Republicans blocked a Senate bill, Freedom to Travel for Health Care Act of 2022, which had been introduced by Democrats to guarantee freedom to interstate travel for abortion. In April 2023, Idaho became the first state to explicitly restrict interstate travel for abortion by passing legislation that made it a criminal offense to help a pregnant minor to obtain an abortion.
Legal scholars have argued that several clauses of the U.S. Constitution restrict a state’s ability to prescribe legislation extraterritorially and thus could be used to challenge abortion travel bans. The Dormant Commerce Clause and Privileges and Immunities Clause are two such clauses that will be explored here.
The Dormant Commerce Clause
The Dormant Commerce Clause is not an actual clause of the Constitution but rather a limitation on state action implied by the Commerce Clause that denies states the power to burden interstate commerce. Extraterritorial regulation of abortion travel could be challenged under the Dormant Commerce Clause as burdening commerce in two ways: it limits abortion, and it limits travel. Abortion as a form of medical care is commerce because it involves the provision of services for payment. Travel has an important role in commerce, thus burdening interstate travel burdens interstate commerce.
However, cases that have been struck down by the Court for violating the Dormant Commerce Clause all applied to noncitizens of the regulating state, whereas for abortion travel bans, states would be banning their own citizens from traveling. That abortion bans affect citizens of the regulating state makes it more likely that these bans would be permissible, because a state could assert that it has jurisdiction to regulate the conduct of its own citizens. Another meaningful distinction between abortion travel bans and Dormant Commerce Clause precedent is that most statutes struck down under the Dormant Commerce Clause aimed to protect economic interests, whereas abortion bans could be framed as protecting health. The court uses a stricter standard of review for statutes protecting local economic interests compared to those promoting health and safety and therefore may be more likely to uphold abortion travel bans.
In addition to preventing burdens on interstate commerce, the Dormant Commerce Clause was thought to include a separate extraterritoriality component that prevents states from regulating commerce that takes place “wholly outside of the state’s borders, whether or not commerce has effects within the state.” However, this extraterritoriality rule was asserted by petitioners in the recent case National Pork Producers Council v. Ross, and the Court responded that the Dormant Commerce Clause precedent “reveals nothing like” an “almost per se rule” against extraterritoriality. Therefore, extraterritoriality alone will likely not be enough to strike down an abortion ban under the Dormant Commerce Clause.
The Privileges and Immunities Clause
The Privileges and Immunities Clause prohibits states from making or enforcing laws that abridge privileges of U.S. citizens, including the right to travel. Bans on abortion travel could be challenged as violating this protected right to travel. But relying on the right to travel when challenging abortion travel bans is problematic because the state is not actually preventing anyone from leaving its borders – just requiring that, when traveling interstate, one must still abide by the home state’s restrictions on abortion.
Another issue with relying on the Privileges and Immunities Clause to safeguard abortion travel is that the clause provides minimal protections against a state’s effort to regulate the travel of its own citizens. Legal cases concerning the Privileges and Immunities Clause focus on laws enacted by the destination state, rather than the home state of the travelers.
Further, the right to travel is not absolute. For instance, Jones v. Helms upheld a state statute that made it a criminal offense for a parent to willfully abandon their dependent child and leave the state. The Court reasoned that a restriction on travel that is “rationally related to the offense itself…must be within the state’s power.” Traveling for an abortion is “rationally related” to the abortion itself, therefore Jones suggests that states have the power to limit abortion travel.
Implications
Legal precedent surrounding the Dormant Commerce Clause and Privileges and Immunities Clause suggests that neither clause clearly prohibits the extraterritorial regulation of abortion travel. Other constitutional provisions that might serve as grounds to challenge abortion travel bans, such as the Due Process and Full Faith and Credit Clauses, arguably are susceptible to similar issues.
Recognizing the lack of constitutional protections for abortion travel is important when considering legal and advocacy strategies to preserve individuals’ freedom to travel across state lines to seek an abortion. For instance, there are powerful normative reasons for prohibiting states from banning abortion travel, such as promoting fairness and national unity by guaranteeing certain rights for all citizens and upholding state sovereignty. Given the limited constitutional protections for citizens’ rights to travel for abortion, emphasizing normative over constitutional considerations may be an effective strategy for policymakers and advocates.
