Constitutional Law

Does right to travel for abortion include right to avoid penalty? Kavanaugh concurrence doesn't go so far

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Justice Brett Kavanaugh.

When the U.S. Supreme Court ruled last month that there is no constitutional right to abortion, Justice Brett Kavanaugh commented on the decision’s limits in a concurring opinion.

“May a state bar a resident of that state from traveling to another state to obtain an abortion?” Kavanaugh asked. “In my view, the answer is no based on the constitutional right to interstate travel.”

But Kavanaugh’s opinion may not be as reassuring as it sounds for those traveling for abortions, the New York Times reports. “The real-world issue,” the article says, “is not whether women seeking abortions would be stopped at the state’s border but rather what would happen afterward—to the women, to those who helped them travel and to out-of-state abortion providers.”

The Times spoke with University of Pennsylvania law professor Seth Kreimer, who said Kavanaugh’s description of the right to travel was “oddly limited,” in the words of the Times.

“Read closely,” Kreimer told the Times, Kavanaugh “may not even suggest protection against prosecuting the resident upon her return—or seeking to sanction doctors in sanctuary states either by prosecution or damage actions.”

Kavanaugh did not cite the 1975 Supreme Court decision Bigelow v. Virginia, which said a woman in a state that banned abortion could travel to a state where the procedure is legal, and the woman could not be prosecuted for obtaining the abortion.

The case overturned on First Amendment grounds the conviction of a newspaper editor who ran an ad in Virginia for abortion services in New York at a time when abortion was illegal in Virginia.

Law professors writing at the Hill and Bloomberg Law point out that the right to travel is not explicitly mentioned in the Constitution. But longstanding precedent has inferred a right to travel from the structure of the Constitution, the dormant commerce clause preventing states from burdening interstate commerce, and the privileges and immunities clause.

The Bloomberg Law article calls on Congress to enact legislation protecting the right to travel for abortion care and to ensure that no one is prosecuted in connection with an abortion in another state.

Two bills have already been introduced to stop states from banning abortion travel and punishing those who get, aid or provide out-of-state abortions, Politico reports. The bills’ prospects are uncertain.

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