ABA supports right to travel for abortion services and other medical care
All government entities should enact laws and regulations that protect the right of any individual to travel across state lines to access medical care, the House of Delegates said at the 2023 ABA Midyear Meeting in New Orleans on Monday.
The association’s official policymaking body overwhelmingly approved Resolution 513, which additionally opposes laws and regulations restricting the right of individuals to travel between states to access care. Submitted by the Section of Civil Rights and Social Justice in response to the U.S. Supreme Court’s decision to overturn Roe v. Wade, the measure takes aim at states that have considered prohibiting residents from seeking abortions in other states.
“Here again we are preparing for what we hope will not happen but what we fear might,” said Wendy Mariner, a CRSJ representative to the House of Delegates who introduced the resolution. “The right to interstate travel has indeed been assumed for decades and decades in our jurisprudence, but the Supreme Court hasn’t settled on the textual source for that right. If there is no express reference to the right to travel in the Constitution, is it implicitly protected by other provisions of the Constitution?”
The Supreme Court ruled in June that there is no constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy. Justice Samuel Alito, who wrote the opinion, also contended that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the due process clause of the 14th Amendment.”
Roe, decided in 1973, held that states can’t ban abortions before viability, the point at which a fetus can survive outside the womb. In 1992, the Supreme Court reaffirmed this holding in Planned Parenthood v. Casey.
In the wake of Dobbs, members of the legal profession expressed concerns that the same reasoning that eliminates the right to abortion could put other constitutional rights at risk. According to the report that accompanies Resolution 513, at least four Supreme Court justices have indicated it’s now possible that states could ban residents from traveling to receive medical care.
Follow along with the ABA Journal’s coverage of the 2023 ABA Midyear Meeting here.
Mariner pointed out that judges and legal scholars have argued the right to interstate travel is protected by the privileges and immunities clause, the commerce clause or the due process clause of the Constitution. She also noted the Supreme Court said in its 1999 decision in Saenz v. Roe that it “need not identify the source of [the right to travel] in the text of the Constitution.”
“And now we do have to identify the source of the text in the Constitution, or we have, like other liberty-related rights in the Constitution, a problem with identifying and observing protection of the right to travel,” she said.
In July, federal lawmakers introduced two bills—the Ensuring Access to Abortion Act of 2022 (which passed the U.S. House of Representatives) and the Freedom to Travel for Health Care Act of 2022—to prohibit anyone from interfering with an individual’s ability to access legal, out-of-state abortion services. They would also protect health care providers or others who help a patient obtain a legal abortion in another state.
Ruthe Catolico Ashley, a Goal III woman member-at-large of the House of Delegates, also spoke in favor of Resolution 513. As a former health care professional, she argued restrictions on interstate travel will severely impact access to all types of medical care for individuals and their families.
People may need to travel across state lines to “access the best cancer treatment or to receive a transplant or to participate in a research study,” Ashley said. “I’m sure many of you or your families have crossed state lines to access the medical care that you want. As lawyers, let’s insist that access to health care, wherever it is, always be available.”
Resolution 513 was co-sponsored by the Center for Human Rights, the Coalition on Racial and Ethnic Justice, the Commission on Sexual Orientation and Gender Identity, the Criminal Justice Section and the Senior Lawyers Division.
The Section of Civil Rights and Social Justice filed six resolutions related to the Supreme Court’s decision to overturn Roe at the ABA’s Annual Meeting in August. The House of Delegates overwhelmingly approved all of the measures.
ABA Journal: “Aftershocks: Navigating the morass of state abortion laws post-Roe”
ABAJournal.com: “Law firms aiding staffers to secure abortions in post-Dobbs world see possible risks and rewards”
ABAJournal.com: “Legal experts fear loss of abortion right could usher in end of same-sex marriage, other rights”