Federal Court Rules Laws Restricting Interstate Travel for Abortion Violate the Right to Travel
As Eugene Volokh notes, yesterday, in Yellowhammer Fund v. Attorney General, a federal district court invalidated an Alabama law criminalizing assisting or facilitating the procurement of an out-of-state abortion by an Alabama resident. Eugene’s post focuses mostly on the First Amendment part of the ruling. I will focus on the right to travel.
In Dobbs v. Jackson Women’s Health Organization the Supreme Court’s decision overturning Roe v. Wade, the Court left open the issue of whether states could punish residents who seek abortions in other states. However, in a concurring opinion, Justice Brett Kavanaugh wrote that this is question is “not especially difficult,” and that the answer is “no” because such laws violate “the constitutional right to interstate travel.”
Federal District Judge Myron Thompson, author of yesterday’s ruling clearly agrees. Here’s an excerpt from his reasoning:
Considering the right to travel in the context of Article IV’s Privileges and Immunities Clause confirms that the right includes both the right to move physically between the States and to do what is legal in the destination State. The Clause was meant to create a “general citizenship,” 3 J. Story, Commentaries on the Constitution of the United States, 3:674-75, § 1800 (1833), and “place the citizens of each State upon the same footing with citizens of other States.” Paul v. Virginia, 75 U.S. 168, 180 (1868)…. When individuals do travel into another State, the Clause ensures that they lose both “the peculiar privileges conferred by their [home State’s] laws” as well as “the disabilities of alienage.” Id. The Clause “insures to [citizens] in other States the same freedom possessed by the citizens of those States in the acquisition and
enjoyment of property and in the pursuit of happiness.” Id. at 180-81. These goals are incompatible with a right to travel that would allow one’s home State to inhibit a traveler’s liberty to enjoy the opportunities lawfully available in another State….
Similarly, the Supreme Court has explained that the Privileges and Immunities Clause “plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation.” Ward v. State, 79 U.S. 418, 430 (1870)…
The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense. Travel isvaluable precisely because it allows us to pursue opportunities available elsewhere. “If our bodies can move among states, but our freedom of action is tied to our place of origin, then the ‘right to travel’ becomes a hollow shell.” Seth F. Kreimer, Lines in the Sand: The Importance of Borders in American Federalism, 150 U. Pa. L. Rev. 973, 1007 (2002). Indeed, the Attorney General’s theory of the right to travel, which would allow each State to force its residents to carry its laws on their backs as they travel, “amount[s] to nothing more than the right to have the physical environment of the states of one’s choosing pass before one’s eyes.” Laurence H. Tribe, Saenz
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