Analysis | Pro-choice states should protect the right to travel for abortion

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Suppose Roe v. Wade be cancelled. A recent fanfare of concern is that a state would then be able to punish its citizens for traveling to other states to seek medical assistance to terminate their pregnancies. Missouri is considering legislation that would do just that, and activists in Texas are pushing a similar proposal. Other states may follow.

Would such a law be constitutional? It’s hard to be sure. The doctrine is a confusing hodgepodge, and the Supreme Court has declined to offer definitive guidance. Although legal scholars have been advocating for a right to travel for abortions since the 1990s, the last time judges directly addressed the issue of a state’s power to punish crimes beyond its borders, it was… uh… 1941.

In short, we cannot predict how a court would deal with an effort by one state to ban its citizens from having abortions in another. But you don’t have to be pro-choice to see the strength of the argument against such a law.

Let’s start with a fundamental question: can a state punish its citizens for breaking state laws while they are beyond its borders? It would seem that the answer is yes. In 1941, the Supreme Court ruled that Florida could punish its residents for breaking Florida law on the high seas. In the decades that followed, other states successfully prosecuted crimes committed at sea.

It also seems that the answer is no. In the days of human slavery, the general rule was that a state could not enforce its own laws in this matter outside its borders. In Lemmon v. The People (1860), for example, the New York Court of Appeals ruled that the legal status of slaves brought to New York would be determined only by New York law; so they were released.

The process also worked the other way around. I recently came across an 1831 ruling that Indiana’s slavery prohibition could not prevent Indiana residents from owning slaves held in other states.

Here is a way to harmonize the cases. In the Florida case (as in many others involving conduct on the high seas), the crime is committed outside a state’s jurisdiction. There is no conflicting interest. The 1831 case, however, arose when the laws of two separate states were in conflict. Kentucky allowed slavery; Indiana did not; the court held that a legal act in Kentucky could not be prevented because the person who did it could not have done it at home.

I’m not saying that the pro-choice side should rely on cases from when human beings were property. But it should be noted that the pre-war cases arose because different states had different laws on the subject. So there is good reason to follow the advice of my Yale colleague, Lea Brilmayer, who argued that the right of a state to punish its citizens for doing what its own law prohibits should give way to the right of another State to adopt a strong political position in its favour.

The political point matters. As Brilmayer notes, there is no conflict “if the first state wished to prohibit certain types of conduct, while the second was simply indifferent”. The problem only arises when two states are actively promoting different answers to the question. If this argument is correct – and I believe it is – then in a country where Roe v. Wade is no longer constitutional law, pro-choice states would do well to pass laws explicitly recognizing the right to abortion. By enshrining their preferences in politics, they would create enough conflict to prevent the pro-life state from applying its law beyond its territory.

Even if all of this is unconvincing, there are still prudential reasons that states considering strict restrictions on abortion should not try to punish their residents for obtaining abortions in the neighboring state.

The most obvious reason is reciprocity. Consider two neighboring states, like Missouri and Illinois. Missouri is likely to ban all or most abortions. Illinois not only allows abortion, but in 2019 it enacted a law stating that women have a “fundamental right” to access abortion and that a “fertilized egg, embryo, or fetus is not no independent rights”. If abortion law crosses the border, why couldn’t Illinois law apply to Missouri if an Illinois travels there? (A similar caveat could apply if a state prohibits employers from paying the expenses of employees who travel for abortions, though the legal issues are somewhat different.)

There is another prudential concern, which has nothing to do with abortion. In March, the United States Supreme Court agreed to hear a challenge to a California law restricting the sale of pork products unless farms meet certain standards, even though nearly all of the farms in question are in out of state. The challenge builds on previous rulings, such as the 1996 case in which a majority of justices warned that “a state may not impose economic sanctions on violators of its laws for the purpose of altering the lawful conduct of perpetrators in other states”.

No, the problem is not the same at all. But this series of cases reminds us that we live in an age where states are trying all sorts of devices to regulate behavior beyond their borders, even when the behavior is legal elsewhere. We should take the time to ask ourselves if this is the direction we want to go.

More from Bloomberg Opinion:

• The Supreme Court has a bad surprise for companies: Noah Feldman

• 6 January. The panel argued against Trump: Jonathan Bernstein

• Democrats need Stacey Abrams’ playbook for the Roe fight: Julianna Goldman

This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A law professor at Yale University, he is the author, most recently, of “Invisible: the story of the black lawyer who shot down America’s most powerful gangster”.

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