Joy Asico-Smith/AP Images for National Women's Law Center
Pro-choice demonstrators rally in front of the Supreme Court as justices hear oral arguments in the cases of Idaho v. United States and Moyle v. United States, April 24, 2024, in Washington.
When the Dobbs majority sent abortion lawmaking back to the states two years ago, it wasn’t difficult to predict that entire sections of the country would eliminate access to the procedure. The abortion prohibitionists who’ve successfully walled off vast swaths of the Southeast and the Great Plains have gone one step further, however, by criminalizing travel to places where abortion is legal.
The constitutional right to travel is under assault in Republican strongholds like Alabama. Already in the spotlight for the state supreme court IVF decision that introduced the concept of embryos as “extra-uterine children,” Alabama aims to put its retrograde stamp on the right to travel for this medical procedure. One of the first salvos in what promises to be a long fight finds U.S. District Judge Myron Thompson pushing back on Alabama Attorney General Steve Marshall’s move to toss a lawsuit by reproductive health care providers that sought relief from the state’s threats of prosecution for assisting people who are trying to obtain abortions. Yellowhammer Fund v. Marshall rests on whether organizations and health care providers assisting women with travel would be subject to prosecution in Alabama, which prohibits it.
In allowing the lawsuit to proceed, Thompson dismissed the state’s argument that it can criminalize abortion-related activities without violating the right to travel. At this juncture, Yellowhammer Fund is something of a cautionary tale. With abortion prohibitionists inching their way toward the national ban they’d like in place, the right to travel may not be sacrosanct in the coming years.
Ever since Idaho became the first state to play the right-to-travel card, making it a crime to assist a minor in crossing state lines to secure an abortion, abortion opponents have resorted to ever more draconian attempts to limit freedom of movement. Texas has been in the vanguard of oppression: Individuals who help identify accessories to abortions who are successfully prosecuted can receive a $10,000 reward. The reddest cities and counties in the state have devised travel bans, and one man plans to pursue an investigation into his ex-partner’s trip to Colorado for the procedure.
Should Yellowhammer or a similar case wind up on the Supreme Court docket, how might the justices decide on the right to travel? Dobbs has chipped away at the right to privacy, an unenumerated right not explicitly mentioned in the Constitution but derived from decades of Supreme Court jurisprudence rooted in five different cases. Supreme Court Justice Brett Kavanaugh, by contrast, signaled support for the right to travel in Dobbs. “[M]ay 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.”
Thompson picked up on Kavanaugh’s lead, quoting a separate Supreme Court case that argues the Constitution “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.”
Idaho became the first state to play the right-to-travel card, making it a crime to assist a minor in crossing state lines to secure an abortion.
Thompson also outlined the deep historical roots of the right to travel going back to the Magna Carta and the Articles of Confederation. “Indeed,” Thompson wrote, “travel has consistently been protected precisely so that people would be free to engage in lawful conduct while traveling.”
However, that right to travel is, like the right to privacy, not explicit. In a 2022 Bloomberg Law article, three law professors (Naomi Cahn of the University of Virginia, June Carbone of the University of Minnesota, and Nancy Levit of the University of Missouri-Kansas City) explained that the right to travel has “been the subject of longstanding precedents inferred from the structure of the Constitution and related rights such as those promoting interstate commerce or granting privileges and immunities.”
“In short,” they added, “that means the only difference between the right to privacy and the right to travel is how many current Supreme Court justices still support it. If Kavanaugh does, and Chief Justice John Roberts, who filed a concurrence in Dobbs, joins him, then the right to travel will remain.”
“But,” the professors warned, “Kavanaugh’s opinion only sets a minimum. Missouri, which bans abortion, cannot prevent a resident from traveling to Illinois to obtain an abortion, where abortion is legal. The more complicated question is whether a person who has an abortion in Illinois and then returns home to Missouri can then be prosecuted for murder. One state cannot ordinarily prosecute a person for something that occurred in another state.”
The Justice Department introduced its own “Statement of Interest” in Yellowhammer highlighting that, in keeping with Supreme Court precedents, the Alabama attorney general can’t “criminalize third-party assistance for interstate travel.” However, the Roberts Court’s oft-demonstrated hostility toward the high court’s own precedents in Roe demands another soupçon of caution.
The Alabama developments overshadowed this week’s oral arguments in Matsumoto v. Labrador, an Idaho abortion trafficking case before the Ninth Circuit Court of Appeals. The lawsuit pits the Northwest Abortion Access Fund and the Indigenous Idaho Alliance against Idaho Attorney General Raúl Labrador. The groups secured a preliminary injunction against a 2023 state law mandating that any adult who assists a minor in obtaining an abortion or abortion pills in another state without consent of that person’s parents can be charged with trafficking.
However, it’s a narrower case; at issue is free speech—an “unclear amount of undefined assistance to minors,” according to the plaintiffs—rather than the right to travel, since only the travel within Idaho is illegal. But if Idaho succeeds, it also opens up the possibility that state lawmakers may consider expanding travel restrictions.
The efforts to thwart work-arounds to existing Republican state prohibitions are likely to get uglier. Women are seeking out “navigators” to help untangle legal and travel issues, offset costs and insurance, and handle post-procedure issues. Since Roe’s demise, technology companies like Amazon and Apple have agreed to provide out-of-state abortion travel benefits, which attract job hunters as abortion and associated travel and expenses mount. The numbers of abortions have increased, with 1,037,000 abortions performed last year within the formal health care system, according to Guttmacher Institute data. The number, the highest in more than a decade, is “almost certainly an undercount,” the institute says.
“The right to interstate travel is one of our most fundamental constitutional rights,” Judge Thompson observed. “It cultivates national citizenship and curbs state provincialism, and thus was key to fusing a league of States into a true federal union.” Even so, for Republican states any interest in an enduring “union” matters less than having human reproductive decisions line up with the narrow ideological precepts that ultimately injure women.
