WASHINGTON — Justice Brett M. Kavanaugh signed the recent majority opinion that overruled Roe v. Wade. He additionally issued a 12-page concurring opinion, writing just for himself. He needed to talk about, he wrote, “the future implications” of the choice.
“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” he wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
A number of hours later, Rory Little, a regulation professor on the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”
You will certainly search the Constitution in useless for the phrase journey, simply as you’ll not discover the phrase abortion. And although some type of a constitutional proper to journey is nearly uniformly accepted, the Supreme Court has struggled to say precisely the place to discover it or exactly how to outline it.
“We need not identify the source of that particular right in the text of the Constitution,” Justice John Paul Stevens wrote in a 1999 decision of “the right of a citizen of one state to enter and to leave another state.”
Similarly, Justice William J. Brennan Jr. wrote for the court in 1969 that “we have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.”
Justice Kavanaugh, for his half, cited no precedents or constitutional provisions for his assertion that a state could not “bar a resident of that state from traveling to another state to obtain an abortion.”
The real-world subject, in any occasion, is just not whether or not ladies in search of abortions can be stopped on the state’s border however quite what would occur afterward — to the ladies, to those that helped them journey and to out-of-state abortion suppliers.
Those questions, a timely draft article cited in the dissent mentioned, current a difficult and contested array of points. The article, “The New Abortion Battleground,” which is to be revealed in The Columbia Law Review, was written by three regulation professors: David S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh and Rachel Rebouché of Temple University.
The prospect of states attempting to cease abortions past their very own borders is just not fanciful, Professor Rebouché mentioned.
“We should be worried that states will start throwing everything at the wall to see what sticks,” she mentioned. “There is an unknown universe of what’s ahead.”
Missouri legislators have twice thought-about, however to this point haven’t adopted, payments that may prohibit residents’ potential to receive abortions in different states. The more recent of them borrowed from the innovation of the Texas law that succeeded in banning most abortions in that state after six weeks of being pregnant — 10 months earlier than the courtroom overruled Roe.
Like the Texas regulation, the Missouri invoice relied on non-public enforcement by means of civil lawsuits, shielding it from many authorized challenges. Anti-abortion teams have additionally drafted mannequin legal guidelines that attain past state borders, and abortion rights teams worry a wave of such laws.
Even the prospect of such statutes appears to have had a chilling impact. In Montana, as an illustration, Planned Parenthood clinics said recently that they might require proof of residency for girls in search of abortion tablets.
“It is going to get incredibly messy and complicated,” Professor Donley mentioned, including that Justice Kavanaugh’s assertion provided “literally no protection” to out-of-state medical doctors and clinics who present abortions to ladies from states the place the process is illegitimate.
Justice Kavanaugh’s description of the scope of the appropriate to journey, which responded to a query in the dissent, was oddly restricted, mentioned Seth Kreimer, a regulation professor on the University of Pennsylvania and the writer of two foundational law review articles exploring the appropriate to journey in the context of abortion.
The proper to interstate journey, he mentioned, “is fairly solidly rooted in constitutional structure and longstanding constitutional practice.” But that’s solely a part of the puzzle.
“Read closely,” Professor Kreimer mentioned of Justice Kavanaugh’s assertion, “he 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.”
Had Justice Kavanaugh needed to cite a Supreme Court precedent that appears each apt and expansive, he may need chosen Bigelow v. Virginia, a 1975 choice that overturned the conviction of a newspaper editor who revealed an commercial in Virginia for abortion companies in New York when abortions had been unlawful in Virginia.
The case turned on the First Amendment, however the writer of the bulk opinion, Justice Harry A. Blackmun, made some broader factors, too.
“The Virginia Legislature could not have regulated the advertiser’s activity in New York, and obviously could not have proscribed the activity in that state,” he wrote. “Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the state conceded, prosecute them for going there. Virginia possessed no authority to regulate the services provided in New York.”
Justice Kavanaugh’s assertion was a lot narrower, Professor Kreimer mentioned. “Kavanaugh hasn’t committed himself to protection of anything beyond ‘travel,’” he mentioned. “So, while robust protection could emerge, it’s not an outcome that one can rely upon.”