Now that the Supreme Court has voted to overturn Roe v. Wade, more than a dozen states over the next month are expected to begin enforcing partial or near-total bans on abortion within their borders. But some abortion opponents have proposed going even further — stopping women from their states from traveling to another where abortion is legal for the procedure.
The topic, little noticed in the immediate wake of the ruling, has surged to the forefront in recent days. On Friday, President Biden reiterated in a meeting with Democratic governors that the federal government will protect women who leave their home states for an abortion.
Antiabortion groups and state legislators have discussed ways to restrict interstate travel for abortion, according to a Washington Post report. Governor Kristi Noem of South Dakota, which now bans abortion in almost all cases, said there “will be a debate” about how to handle cases of South Dakota women traveling out of state for the procedure.
Abortion rights supporters have long decried proposed travel restrictions as unconstitutional overreach. Now they may have an unlikely ally: conservative Supreme Court Justice Brett Kavanaugh, who sided with the majority in eliminating the constitutional right to abortion.
In his concurring opinion in Dobbs v. Jackson Women’s Health issued June 24, Kavanaugh seemed to tip his hand on the issue of traveling across state borders.
“Some of the . . . abortion-related legal questions raised by today’s decision,” he wrote, “are not especially difficult as a constitutional matter. 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.”
Those three lines, buried within his 12-page opinion, have sparked a debate. Some liberal legal scholars believe he may be choosing his words carefully, staking out a narrow position on policies overtly restricting pregnant women’s freedom of movement. Some conservatives think he may be gesturing at a more expansive discomfort with the extension of abortion bans beyond state borders.
Kavanaugh’s feelings about the issue could prove consequential, because he now sits at the court’s center on many issues. He tends to exhibit more judicial moderation than the four other conservative associate justices. But he is typically less restrained than Chief Justice John Roberts, a conservative known to be deferential to precedent and mindful of the court’s credibility with the public. (In Dobbs, for example, Roberts concurred with the other conservatives in upholding the Mississippi antiabortion law at the center of the case, but parted ways with the rest of the conservative bloc on the question of overturning Roe.)
So Kavanaugh’s stated opposition to abortion-related travel bans may mean that, with Roberts’s backing, the balance of power shifts in favor of striking down any such travel bans, legal experts said.
“If a state were to pass an interstate travel ban, I think there is definitely a majority to overturn that, now that Kavanaugh has made his reasoning crystal clear,” said Craig Collins, a lawyer who wrote a 2015 book arguing for the overturn of Roe v. Wade. That majority, he and other court observers said, would likely consist, at a minimum, of the three liberal justices, Roberts, and Kavanaugh.
The issue has taken on new urgency in the wake of the court’s decision, which could lead to an explosion in the number of women seeking abortions outside their home states. In Texas, after the Legislature passed an aggressive antiabortion law in 2021, the number of those traveling to nearby states for abortions increased tenfold, according to the Texas Policy Evaluation Project at the University of Texas at Austin.
Planned Parenthood League of Massachusetts has said its “doors are open” for patients from out of state. Governor Charlie Baker issued an executive order that seeks to impede conservative states’ efforts to take action against Massachusetts residents, including abortion providers.
The prospect of a majority prepared to strike down interstate travel restrictions may come as a relief to supporters of abortion rights. But other threats to interstate access are on the horizon, cautions Greer Donley, a legal scholar who coauthored a paper on the subject that was cited in the Dobbs dissent signed by the three liberal justices.
The National Right to Life Committee has distributed model legislation that would criminalize as “trafficking” the act of transporting a pregnant minor to obtain an abortion without a parent’s consent. States with abortion bans could attempt to prosecute out-of-state abortion doctors for murder, said Donley, a professor at the University of Pittsburgh Law School.
The states also could target organizations that provide information and other resources to those seeking out-of-state abortions, said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a liberal think tank focused on reproductive rights. Texas Attorney General Ken Paxton said he may pursue civil penalties against companies that pay to send their employees out of the state for abortions, as many corporations have pledged to do.
Borrowing from the Texas legislation, some antiabortion groups have proposed allowing private citizens to sue people who help a resident of a state that has banned abortion end a pregnancy outside of that state. Relying on such civil lawsuits instead of prosecutions could prove to be less constitutionally problematic and might not breach the bright line Kavanaugh seemed to draw in his concurrence.
The wide array of possible tactics to impede out-of-state abortions has left court observers, on both sides of the political divide, trying to parse Kavanaugh’s brief foray into the matter. Did he mean to say he had reservations only about travel restrictions? Or was he telegraphing a more generalized discomfort with attempts to extend abortion bans beyond state borders?
Liberals who distrust Kavanaugh, given his apparent about-face from statements during his Supreme Court confirmation vetting about overturning Roe, may be inclined to see gamesmanship in his wording.
“Justice Kavanaugh wanted to be perceived as being a voice of moderation” in this opinion, Donley said. “He does a lot of maneuvering to say, ‘Both sides have reasonable opinions and I’m not deciding this issue, I’m just returning it to the states.’ His including of that [language about interstate travel] was a little bit of a nod in that direction: Even if I am going to overturn Roe, I’m not going to rubber stamp everything the antiabortion movement does.
“But when the rubber hits the road,” Donley said, “how will he actually vote?”
David Cohen, one of Donley’s coauthors, emphasized that Kavanaugh’s language is narrowly focused on policies that would impede pregnant women from crossing state lines to obtain an abortion. It says nothing of punishments for abortion providers or any helpers who might provide money or a ride.
But some conservative scholars think liberals may be overthinking the matter.
“I think [Kavanaugh] is leaving his options open, but it’s clear that he does not feel at ease about extensions [of abortion bans beyond states lines] of that sort,” said Charles Fried, a Harvard Law School professor who as solicitor general during the George H.W. Bush administration argued for the overturn of Roe before the Supreme Court in 1989.
Kavanaugh has said nothing further about the matter and a public information officer for the Supreme Court said of the justices, “They do not elaborate on their decisions,” which leaves the public, like legal scholars, to interpret Kavanaugh’s words for itself.
Material from wire reports was included in this report.
Mike Damiano can be reached at firstname.lastname@example.org.